I did not pay much attention to the trial of Mr. Manafort. When the jury came back for the government on eight of eighteen counts, I wasn’t particularly surprised.[i] After all, these were essentially tax and bank fraud cases (with one count of failure to register as a foreign agent). The government does not bring those document-heavy charges unless it thinks the basic case, while larded with weak counts, is a slam dunk.
From the reporting prior to the verdict, commentators hazed Judge Ellis for pushing the government hard to get the trial over and otherwise being a meanie to the prosecutors.[ii] But aside from this sniping, I yawned.
Then, the judge sentenced Manafort to “only” 47 months in prison for the 70-year-old defendant. The heavens rose up and hell vented noxious gas. Life plus cancer was the proper sentence, and don’t tell us otherwise, the Trump-haters yelled. I yawned once again.
The judge explained in detail why he sentenced Manafort below the Guidelines. It seems to me the judge was roughly on target. In any event, for an objective and quite good explanation of the judge’s thoughtful explanation and ruling, see here.[iii] Yawn.
But now, I am no longer yawning. Recently, Zoe Tillman published the dismissal of several complaints brought against Judge Ellis under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351-364, regarding his conduct during the Manafort matter. Zoe Tillman, Paul Manafort’s Judge Won’t Face Disciplinary Action For How He Treated Mueller’s Office, BuzzFeed News (April 1, 2019). Even though it is not yet public as of the date of this writing, she even published the opinion of the Chief Judge of the Fourth Circuit dismissing the complaint.[iv]
Now, I don’t know Judge Ellis from a hot rock. So, I did a little looking. There is something called the Almanac of the Federal Judiciary, CCH Incorporated (2019).[v] It costs the practicing bar a lot to subscribe to this service because the editors do a deep dive into what lawyers think of a particular federal judge. The publisher then summarizes and publishes the thoughts of the lawyers about that judge without revealing the names or other identifying information.
Here is what I learned. The judge is a senior judge who was born in 1940. He was appointed by President Reagan in 1987. The judge graduated Princeton with a Bachelor of Science in Engineering. He went into the Navy and served from 1961 through 1966. After that, he attended Harvard Law School, where he received his degree magna cum laude. He was awarded a Diploma in Law from Magdalen College, Oxford University.
Now, for the evaluations in a summary fashion.
“Ellis is a brilliant judge, lawyers said. ‘His legal ability is off the charts, he has great legal knowledge.’”
“’He’s absolutely no-nonsense and sometimes a bit abrupt.’” “’He will put the lawyers in his courtroom to the test.’”
“Ellis runs a tight courtroom. ‘He has complete control of the courtroom.’ ‘One should never come into his courtroom unprepared.’ ‘He runs his courtroom efficiently.’”
As for the thoughts of criminal defense lawyers, “’He’s a real legal stickler and will really hold the parties to the letter of the law.’” “’He’s very pro-government.’” At sentencing, “’He’s a little tougher on sentencing than some; he can downward vary but more often he follows the guidelines.’”
Now, let me walk you through the Judicial Conduct complaints and how Chief Judge Gregory resolved them. There were four complaints. Each complaining party “apparently read or heard media reports regarding a criminal matter tried before the district judge.” Memorandum and Order, In the Matter of Judicial Complaints Under 28 U.S.C. § 351, Nos.4-18-90063, -90111, -90112, & -90121, at p. 1 (Mar. 29, 2019). In other words, the complaining parties were not participants in the trial, but bystanders relying on second-hand media accounts.
There were three areas of attack.
Initially, and the one Chief Judge Gregory spent the most time discussing, was the claim that Ellis violated various Canons of the Code of Conduct for United States Judges, particularly Canon 2 (avoiding impropriety and the appearance of impropriety) and Canon 3 (admonishing that a judge should perform his or her duties “impartially and diligently”). Greatly summarized and condensed, all the complaining parties thought Ellis was too tough on the prosecutors and “was more interested in hampering the prosecution with unreasonable demands for a quick and speedy trial than he was with carry[ing] out a fair trial.”
The secondary line of attack was still darker. It relied upon Canon 5, which requires judges to refrain from political activity. The judge “tilt[ed] the scales of justice against the prosecution,” made “partisan rulings,” and “deliberately put his thumb on the scales of justice for partisan reasons. A less likely, but entirely possible explanation is that he was subject to other improper, corrupt or illegal influence.”
The final line of attack was that the judge must have been nuts. That is, the judge “has early onset dementia.”
As for the first two lines of attack, Chief Judge Gregory denied them after careful examination. He explained why:
Reviewing the relevant transcripts in the case, and considering the district judge’s remarks in their overall context, the record does not support the conclusion that the district judge engaged in misconduct. One might say that the judge may have been injudicious in his tone or choice of words, but one cannot say that his comments were so discourteous, uncivil, or “bullying” as to “transcend . . . the expected rough-and-tumble of litigation.” Implementation of the Judicial Conduct and Disability Act of 1980, Report to the Chief Justice of the Judicial Conduct and Disability Act Study Committee (Breyer, J., chair), Appendix E (Committee Standards for Assessing Compliance with the Act), at 147. The judge was sometimes strident with counsel, to be sure, and especially with the prosecution. But judges have wide latitude to manage cases in the way that seems best to them. Moreover, pressing the prosecution to move a case along certainly does not necessarily signal that the trial judge believes the prosecution is wrong or has acted improperly, or that the judge is illicitly attempting to impede the prosecution in the eyes of the jury. These kinds of case-management considerations are directly related to the merits of the judge’s handling of the litigation. A judge’s approach to them, therefore, is not subject to review through a complaint of judicial misconduct. 28 U.S.C. § 352(b)(1)(A)(ii).
To be sure, especially in a high-profile, politically-charged trial, a judge should take care – with the precepts of Canon 5 of the Code of Conduct for United States Judges in mind – to avoid careless remarks that could foreseeably be interpreted as partisan. In this case, the district judge did not cross the line into partisan political commentary.
Memorandum and Order, In the Matter of Judicial Complaints Under 28 U.S.C. § 351, at pp. 3-4.
As for the claim of a corrupt motive or “dementia,” Judge Gregory devoted one line while first noting that the complaining parties had failed to provide him with any evidence. He wrote, “The record does not support the existence of an improper influence upon the judge, mental disability, or ‘early onset dementia.’” Id. at p. 4.
So, why do I write about the travails of Judge Ellis? I have three reasons.
First, the reader should know that Judicial Conduct complaints, mostly by disgruntled litigants, are commonplace. I can’t estimate the number of times I have been subjected to complaints. Every experienced judge (read “old”) has been put through the gauntlet numerous times. While it is not fun, the complaint process serves an important public purpose, even for those who completely misapprehend the governing law, 28 U.S.C. §§ 351–364, and the rules promulgated thereunder. There are judges who cross the ethical line. For those few judges, it is important that there be a process for dealing with them. In short, I am glad that the process, although abused, is in place.
Second, Chief Judge Gregory’s thoughtful analysis makes an important point. A federal trial judge is involved in the “rough and tumble [of] litigation.” The judge is under enormous pressure to control the trial participants and look after the jury. It is unsurprising, indeed commonplace, for a judge like Judge Ellis or me to make a remark during trial that upon reflection we wished we hadn’t. As the now-deceased former Chief Judge of the Eighth Circuit, and a truly great trial lawyer before he became a judge, emphasized, law is a human process and that is particularly true of trials. See Donald P. Lay, Law: A Human Process (1996).
Finally, I am angry that the Judicial Conduct process has now been weaponized for political purposes. Reading Chief Judge Gregory’s opinion leaves little doubt that the complaining parties, who were not participants and who relied on the accounts of others, lashed out at Judge Ellis to achieve a political end. He didn’t hate Trump (enough) and should therefore be punished. Such activity bodes ill for the independence of the federal judiciary and our country. As for me, I’m very glad that Judge Ellis was not a shrinking violet. I fear that young federal judges will be cowed—I urge them to have the courage displayed by Judge Ellis.
Richard G. Kopf
Senior United States District Judge (NE)
[i] Manafort was found guilty of five tax fraud charges, one charge of hiding foreign bank accounts, and two counts of bank fraud. Jurors were unable to reach a verdict on 10 other charges. The government elected to dismiss them.
[ii] Nancy Gertner, The extraordinary bias of the judge in the Manafort trial, Washington Post (Aug. 16, 2018). By the way, I have enormous respect for Ms. Gertner, formerly a distinguished federal trial judge and now a professor at Harvard. Oddly, however, she ends her opinion piece with this sentence: “Seeking to expedite matters, Ellis impaneled the Manafort jury in a single day.” I am surprised that Gertner is surprised. I have never spent more than one day picking a jury, and that includes complex cases like the Beatrice Six wrongful-conviction case or a particularly nasty murder case. With rare exceptions, I give each side 20 minutes apiece to ask questions, and my courtroom deputy times them.
[iii] “Manafort’s defense team gave Ellis 17 cases to consider where defendants broke tax or foreign banking laws and got probation or home detention — in other words, no prison time. In some of these cases, the guidelines recommended the defendants go to prison for years — and yet judges all over the country decided that wasn’t necessary.
Ellis cited one case he handled that was similar to Manafort’s case involving secret foreign bank accounts. In that case, Ellis gave the man who avoided paying exponentially more in taxes than Manafort only seven months in prison.”
[iv] I can’t find the order on the Fourth Circuit’s website. It may have been leaked to the reporter. Every Circuit is required to make such orders publicly available when they are final. That omission suggests to me that the Chief Judge’s dismissal has been appealed to the Judicial Council of the Fourth Circuit. So, there may be more to come. By the way, the name of the judge and the names of the complainant or complainants are almost never disclosed pursuant to the rules. See here for all the rules. Nevertheless, from the background set forth in the dismissal order, one can tell that the order pertains to Judge Ellis.
[v] I deny that I have ever read my entry.
While I try to avoid using the word “weaponize,” as it’s become a bit too trendy for my tastes, there is no other word that fits this situation as well. It was done to Justice Kavanaugh following his confirmation. It was done to Judge Persky, but on steroids. And no doubt others. It’s done to lawyers, as well, by those offended by their (ahem) posts on the interwebs.
It’s necessary to provide a mechanism to allow complaints by those actually aggrieved and with a horse in the race, but when mobs having neither actual knowledge nor basis to complain get to grieve because they just don’t like what a judge (or lawyer) did or said, it reduces the process to an absurdity. That the Chief Judge was constrained to take these utterly baseless complaints seriously is concerning. That Judge Ellis was tested by random nutjobs grieving him is, well, nuts.
Now that this process has been weaponized, baseless complaints by those without standing or knowledge should be summarily trashed. There’s no cost to grieving, and anyone (or any thousand ones) can jam up a judge for a few minutes of baseless whining. This is an abuse of the system and no one should be constrained to waste their time or angst dealing with such nonsense.
“It’s necessary to provide a mechanism to allow complaints by those actually aggrieved and with a horse in the race…baseless complaints by those without standing or knowledge should be summarily trashed. There’s no cost to grieving, and anyone (or any thousand ones) can jam up a judge for a few minutes of baseless whining.”
I am not a lawyer, but I find it ludicrous that these types of complaints can be submitted by virtually anyone and considerable time spent by a Chief Judge to actually respond; as you mention, there should be be a filter for actual standing. Otherwise, it’s open to abuse by thousands of the peanut gallery that will submit because, “I reads on the interwebs and angry me!”
I suppose all that’s left for this case, is Plan B…Chief Judge Gregory is usurped by Russians! I’m sure Maddow and CNN will be all over that angle.
“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” Fed #10.
When judges judge fellow judges, they have a pronounced and well-documented propensity for indulging in what the Breyer Commission described as “undue ‘guild favoritism.’” Stephen Breyer, et al., Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice (Sept. 2006) at 1. “No matter what the profession, any charge that a fellow professional is guilty of malpractice is a prima facie invitation to other professionals to retreat to a guild mentality, denying that the infraction took place. The impetus to cover up is not primarily due to friendship toward the accused but rather to a general perception that disclosure would lead to public disrespect of the profession as a whole.” Anthony D’Amato, Self-Regulation of Judicial Misconduct Could Be Mis-Regulation, 89 Mich. L. Rev. 609, 609, (1990). As Senior Judge John Kane famously related, “‘John, think about it. The next time it could be you or me. We’ve got to stick together.’ ” Ronald Rotunda, “The Courts Need This Watchdog,” Washington Post, Dec. 21, 2006 at A-29. Having filed several judicial conduct complaints, l know (as does Breyer) that judges reflexively circle the wagons; the hypocrisy and intellectual dishonesty in the resulting opinions was breathtaking.
Paul Manafort was the LeBron James of tax cheats. But one of his homies–a Republican judge known to be soft on white-collar crime, because it’s what his homies do–handed out a soft-serve sentence that shocked the conscience. And we’re supposed to give the judge a pass?
Once again, this incident (and Judge Kopf’s dismissive reaction) proves that judges are unfit to judge fellow judges. But l am at a loss as to how to remedy this problem. The Framers had a solution (a private citizen could remove a judge from office under the Good Behavior Clause), but no fellow judge would ever allow a suit of that nature to proceed. So, what do we do, Judge Kopf?
Protip: If you want to raise a serious question, don’t gratuitously point out that you’re a flaming nutjob in the process.
I would give at least partial credit for the neologism potential of “soft-serve sentence”.
For the rest, if I might rephrase your professional advice in terms perhaps more readily comprehended by the woke:
‘Having filed several judicial conduct complaints…’
I’m surprised you read that far.
I suffer so others don’t have to.
Remember a guy by the name of Ed Nottingham? The one who was taking bribes to pay for all of his weekly trysts with expensive hookers? Or the tax fraud that Maryanne Trump Berry reportedly participated in?
lf those situations weren’t justification for the filing of a judicial misconduct complaint, what would be? Asking for a friend.
The manifest stupidity of your comment is the problem. Even someone as unfathomably ignorant as you could file a complaint against a judge, despite knowing absolutely nothing beyond what twitter-level crap filters through the space between your ears. The world is full of morons just like you, and like you, they have no clue just how stupid they are.
Sometimes, I think you pay some poor soul from Bangalore to leave a comment that proves your point. But then I realize, you don’t have to. There’s always some crazy or moron willing to do it for free.
Mr. Clark,
Your experience with Judicial Conduct complaints is different than mine. That is, in particular, the Chief Judges of the Circuits and the Circuit Judicial Councils and the Judicial Conference’s Committee on Judicial Conduct and Disability take complaints very seriously. Judges judge judges all the time. Goodness knows I have been reversed many times. The same is true for Judicial Conduct complaints.
If you want an example of how seriously these complaints are taken you can find two here at Simple Justice. See Kopf: The Unexploded Landmine Buried Deep In The Codes of Conduct Committee’s Otherwise Excellent Opinion On Posner or Kopf: US District Judge John Adams Was A Jerk, But Does That Make Him Nuts?
So, in short, sir, I reject the premise of your question. All the best.
RGK
“… Otherwise Excellent Opinion On Posner or Kopf..”
Wait…Rich, someone has a positive opinion of you?
(my dog doesn’t count because you and your evil cohorts deem her “property”)
LT,
Bullet likes me, More importantly, Bullet likes Joan more than you. So STFU.
l know Judge Kane, and have discussed the Washington Post article with him. And yes, we also filed a complaint against ex-Judge Nottingham. Scott seems convinced that mere mortals should never file a complaint against a judge, no matter how egregious his actions are.
The problem highlighted by the Nottingham and Maryanne Trump Berry cases is that the process stops when the judge retires, and no one learns anything about the merits of the complaint. Judge Nottingham was allowed to continue practicing law, which would not have happened had the full story of his misconduct were made known.
ln general, the decisions that are issued have no precedential effect, and cannot be scrutinized by the public. The only government action more certain than the FlSA application application process is a judicial misconduct complaint (they are never acted on). We put a few of them on-line to prove the point that the logic used to dismiss complaints was often tortured, and that judges are inclined to indulge in “extreme guild favoritism.”
While judges ought to be given plenty of latitude and deference, there are limits, which is why we have sentencing guidelines. And when a judge goes too far off the reservation, s/he should have to explain his or her conduct. The Manafort sentence colorably falls within the scope of § 351(a), and the judge should have to answer for it. And in providing an answer to be released to the public, the tribunal would inform and enlighten the public.
Our point in filing and publishing complaints was to prove Judge Kane’s thesis … which Scott calls crazy. Perhaps he can take it up with Justice Breyer and Judge Kane.
On the bright side, this comment isn’t nearly as insanely moronic as your last one. On the dark side, you’ve still demonstrated such an unfathomable lack of grasp of any of this as to demonstrate why you, righteous and passionate savior of the people from the evil judiciary, are the problem. It’s a shame that you’ve smeared Judge Kane by including his “thesis” in your self-important delusion. You have no grasp of what Judge Kane was saying. You lack the capacity to grasp any of this.
Shocking that judicial complaints from someone as brilliant as you were rejected. It must have been because of “extreme guilt favoritism,” as it’s impossible that it was because you’re some random whacko.
Personally, I thought the sentencing guidelines piece added interesting flavor, because it wasn’t absurd enough otherwise.
Judge Kane’s “thesis,” as you call it, was that judges may be overly protective of their brethren. It was not that random nutjobs were entitled to have their complaints, based on what they saw on TV or read in the paper, taken seriously.
You’re welcome. I have a soft spot for the intellectually challenged.
Rule 2 violation. You can’t explain something rationally to a crazy.
Of course we have judges judge judges, just like we have heart surgeons perform heart surgery on heart surgeons when they need it. You are going to find someone better?
I think the better analogy would be the M&M conference after a death.
Well said.
I always pick out the green ones.
I very much appreciate this thoughtful post.
Your second point concerning the “rough and tumble [of] litigation” is particularly important. In addition to your argument, I would add that comments made on the record, even (especially?) rough ones, are nearly impossible to fully grasp unless you’re immersed in the case. I’m confident a number of this blog’s regulars have been on the receiving end of rough language from a judge—I know I have. Once a judge yelled at me as a way of putting opposing counsel on notice for wasting the court’s time with frivolous objections (it was my first objection during the hearing; the government had already raised about a dozen dubious ones).
szr,
Good point. You gotta be there as a participant to fully understand the to and fro of a trial.
All the best.
RGK
But of course, in this day, ignorant morons who have been made even stupider by “advocacy journalists” weaponize everything (well, everything but actual weapons, because those are bad). They were bound to get around to the Judicial Conduct process, especially for non-complacent federal judges, who can’t be Persky’d into toeing the line of Unicorniversal Truth.
“I deny that I have ever read my entry.”
In chambers, alone: “Siri, read me my judge profile.”
Charles,
Brilliant. Siri doesn’t count.
All the best.
RGK
Thank you for this Judge. At some point the only thing left is to place our trust in someone, a leap of faith. This post has shown me, an outsider looking in, that my trust in you and others in your position is well founded.
Also to you Mr. Greenfield, for bringing it to life.
Allen,
Thank you for your overly kind comment about me. As for SHG, you are correct. His blog is a treasure.
The foregoing said, I have a tiny nit to pick with you. Don’t be overly trusting in me or any other judge–be skeptical. One of the reasons I write about wearing a federal robe, and having an overly fancy office with a staff of brilliant lawyers, is to make the federal judicial process, with all its warts (and strengths), transparent.
All the best.
RGK
My first reaction when heads exploded and journalists lined up for hit pieces on Judge Ellis was “Oh no. He’s getting the Persky treatment.” Because Twitter, I was immediately told “it’s not going to happen because he’s a Federal Judge and Ellis is a tough son of a bitch.”
I’m rather disturbed at being proven right over this. Even Tillman’s headline screams for someone, anyone, to come and hang Judge Ellis from the highest mast and make him pay for his transgressions,
But, Judge, while you see this as an attack on the Federal Judiciary’s independence, I’d respectfully submit this is another shot in the fight over judicial independence as a whole, whether Federal or State. Unfortunately the wokescolds wield enough power that now, if a jurist entertains anything fair and principled in a ruling, they too could be subject to mob justice.
Persky was the wakeup call at the state level. Ellis is the terminally progressive attempt at the Federal.
Thanks as usual for making us all smarter for your time, Your Honor.
CLS,
Of course you are right. I should not have so limited the conclusion. My Fed-centric preoccupation shines brightly as my former law partner, and now a state district judge, is wont to remind me. Thanks for your reminder as well.
All the best.
RGK
I once had a Judge tell me in open court “motions are expensive”. I wonder if I could have got him to respond with some language misconduct if I would have replied with an equally obvious one word retort like, “Duh!”?. And I suppose if he responded to that it is very unlikely I could have gotten him into a conversation about whether or not I got my monies worth, and what he though of the overall value I received. * Which really shouldn’t be misconduct, at all, on a judge’s part and would undoubtedly be good for the bottom line of the Almanac of the Federal Judiciary and Justice in general…
So much speculation and so little fact… in his or her Honor’s own words….
And I will always regret not asking if he read the motions prepared for me in the bathtub seeing as how the punishment for the “accusations at hand” were rather trivial and the motions were rather lengthy and completely ignored the “trivial” nature of the indictment.
You should really be careful and aware of the unintended consequences when writing posts like this Judge Kopf. Should only be a mater of days now, if not hours, before some of the folks mentioned in this post start filing some FOIA requests for all that fan mail that the bench gets from its groupies.
Not to mention the wired dreams I am going to have confusing Thomas Selby** and Neil Diamond involving women in their fifties and sixties removing their panties in the gallery and tossing them over the out stretched hands of the bailiffs towards the bench.
Heck, it could even turn into a nightmare depending on whether Thomas Selby does “If You Know What I Mean” for an encore with tears running down his checks, or breaks into a wicked rendition of “Cherry, Cherry” while ripping off his robe and dancing atop his bench while using his gavel as a baton.
*How come there has never been a post about motion value and how the hourly rate breaks down in percentage with the research vs the actually drafting of the motion to fit the speculations in the Almanac of the Federal Judiciary?
**I know T.S. don’t have no stinking hair but if he did he actually would look a lot like Neil. Nothing personal Judge Kopf.
JB.
Hey now…. Cogent it was. Foisted concise takes practice. Relax, I will write up a motion before I post up another back pages comment exceeding two paragraphs.
Sweet dreams!
P.S. Do you know how much bootleg copies of this Almanac of the Federal Judiciary are going for these days and can I get them on the dark web or do I have to brave the back allies off Cadman Plaza?
What did I just read? Whatever you are on, I want some of it*
* Assuming it is not an illicit substance or on a list of scheduled substances which might land me in the OP’s courtroom.