03:42 - Source: CNN
Legal analyst reacts to judge rejecting Trump's attempt to withhold documents

Editor’s Note: Jennifer Rodgers is a former federal prosecutor, adjunct professor of clinical law at NYU School of Law, lecturer-in-law at Columbia Law School and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.

CNN  — 

For most of 2021, we have been engaged in a national conversation around why the January 6 insurrection happened and who was responsible.

Jennifer Rodgers

In this conversation, government officials have been some of the loudest voices – perhaps, not surprisingly, breaking down along party lines: Democrats loudly exclaiming the need for an extensive investigation to explore the Big Lie and its consequences; Republicans, by contrast, proclaiming with a few exceptions that there is no need for an investigation at all, and that to the extent that January 6 stood for anything it represented legitimate concerns over election fraud.

But there is one group of government officials who have been mostly quiet about the root causes of the events on January 6: federal judges.

In recent days, however, three judges have made news with comments and rulings about the events on or leading up to January 6. Judge Amit Mehta of federal district court in Washington, D.C., said during the sentencing of a January 6 defendant that the defendant was a “pawn” who was “told the election was stolen when it was not,” and that “those who created the conditions that led to [the defendant’s] conduct have in no meaningful measure been held accountable.”

Judge Reggie Walton, also a federal district court judge in Washington, D.C., said during a guilty plea proceeding for another January 6 defendant that the judge’s concern was that the defendant was “gullible enough to come to Washington D.C. from Florida based on a lie … and the person who inspired you … is still making those statements, and my concern is that you are gullible enough to do it again.” Walton also compared former President Donald Trump unfavorably with Al Gore, calling Gore “a man” for declining to challenge the election results in 2000 despite having a better case for claiming the presidency than Trump had in 2020.

Finally, Magistrate Judge N. Reid Neuriter ordered lawyers who filed a class action lawsuit on behalf of voters to pay attorneys’ fees of $180,000 to defendants, including Dominion Voting Systems, whom they sued alleging fraud during the 2020 election. Neuriter said, “I believe that rather than a legitimate use of the legal system to seek redress for redressable grievances, this lawsuit has been used to manipulate gullible members of the public and foment public unrest.”

Given the likely continuing fallout from frivolous litigation over the 2020 election, and the 600-plus defendants charged thus far in the January 6-related cases still working their way through the system, there will be many more statements by judges in the months to come that could be construed as offering opinions about the results of the 2020 election and the parties responsible for the attack on the Capitol.

But are such comments – dealing as they do with an issue that has become a major political flash point – appropriate for members of the judiciary, which is supposed to be the least political of our three branches of government?

After all, judges are supposed to stay out of the political fray. Federal judges are appointed, not elected. And despite the recent, and regrettable, trend of identifying judges by the politics of the president who appointed them, judges have lifetime tenure for the very reason that the founders did not want judges to be beholden to the politics or party of the president who appointed them.

Judicial ethics rules underscore judges’ apolitical status, expressly prohibiting them from all forms of political activity, including making political speeches. For this reason, the judiciary usually polls as more trustworthy than the other branches, although its lead has slipped in recent years (likely due to respondents’ views of the Supreme Court).

When such comments are made as part of the judge’s duties, the answer is clearly yes. A judge’s job is to make decisions on issues before them by finding facts and applying the law to them. When judges make comments that logically bear on that work, they are entirely proper.

Thus, for example, Mehta’s comments about the relative culpability of the defendant he was in the process of sentencing were appropriate, as was Walton’s statement of concern that the defendant before him may re-offend because the impetus for his criminal conduct remained in play.

Similarly, like the many judges before him who issued highly critical rulings about the frivolous lawsuits filed challenging the results of the election, Neuriter’s statements about the nature of the lawsuit he oversaw were more than reasonable – they were necessary to his finding to grant attorneys’ fees.

Of course, when judges in their comments stray beyond the issues they need to decide in the cases before them, they risk losing credibility. While Walton was well within bounds in most of what he said during the plea proceeding, his statement that Gore acted “like a man” in conceding the 2000 election when compared to Trump in 2020 was unnecessary to the proceeding, not to mention insulting to women.

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    Hundreds more of the January 6 defendants will plead guilty and be sentenced in the months ahead, and undoubtedly in the course of handling those proceedings, federal judges will continue – as they should – to discuss the causes of the insurrection as they bear on the issues at hand.

    Measured, fact-based descriptions of relevant events by judges have the potential to persuade where hyper-partisan rhetoric from elected officials may not. Indeed, the public should place greater weight on what judges are saying because of their unique role as neutral arbiters and their mastery of the relevant evidence. Let’s just hope people are listening.