Outside of Biglaw, the Justice Department has been the primary source for federal judges for a very long time. It’s long been raised as a problem, given that judges presumably are more sympathetic to the prosecution and feel a certain camaraderie with their former government assistants than those nasty criminal defense lawyers with their piles of rubber bands on their desk. And yet, these judges almost never recuse themselves when they catch a criminal case where last week’s AUSA officemate is now standing in the well assuring the court that the defendant is a bad dude.

On occasion, a motion will be made for the judge to recuse him or herself based upon the appearance of a conflict of interest, the very recent and very close connection the former AUSA had with DEA task force. And the motion will, almost invariably, be denied. After all, if former government lawyers cum judge couldn’t hear cases involving the government, they would be relatively useless on the bench since that makes up a huge percentage of the docket.

And then there’s the newest judge on the Third Circuit Court of Appeals, Emil Bove III.

At Bloomberg, Erwin Chemerinsky argues that Bove “can and legally must be disqualified from hearing cases involving challenges to President Donald Trump’s actions and policies.”

Trump is clearly counting on Bove’s personal loyalty to rule in his favor in any cases that come before Bove. His expectation was confirmed when he posted on Truth Social: “He will end the Weaponization of Justice, restore the Rule of Law, and do anything else that is necessary to MAKE AMERICA GREAT AGAIN. Emil Bove will never let you down.”

So much for an impartial court system.

Trump provides clear evidence that Bove lacks the impartiality required of a judge, but then, the Senate Republicans knew this when they confirmed his nomination.

Justices and judges whose impartiality might “reasonably be questioned” must disqualify themselves from proceedings, under 28 U.S. Code Sec. 455. The code includes a litany of reasons a judge must be disqualified, including conflicts as vague as having “personal bias” to specific instances of serving as an attorney for one of the parties or expressing a public opinion about the merits of the case they are hearing.

Additionally, the US Supreme Court has been emphatic that due process of law, guaranteed by the Constitution, requires an impartial decision-maker.

The “personal bias” rationale is, indeed, vague, but that means it’s squishy enough to not only broadly apply to someone who has demonstrated fealty to Trump like Bove, but to not apply as well. In his brief tenure at the Department of Justice, Bove was alleged to have done things, shocking both in number and substance, that call his impartiality, not to mention temperament, into serious question. But most significantly, Bove served as Trump’s personal attorney before being rewarded with a high post at Main Justice and then a nomination to the circuit.

Bove was previously Trump’s private personal defense attorney in multiple criminal cases. In People v. Trump, Bove unsuccessfully defended Trump against 34 felony counts of falsifying business records as hush money to porn star Stormy Daniels.

The one thing former AUSA do not, and cannot, do is serve as judge on cases with which they were involved as assistants. That’s a different line than the generic implicit bias of a former government lawyer. As Bove was Trump’s lawyer, can he sit as judge over a matter involving his former client?

In contrast, Mike David and Will Chamberlin argue at Bloomberg that Bove need not be disqualified as he’s little different than other judges who preceded him.

One only needs to go back to then-District of Columbia Circuit Judge Brett Kavanaugh to verify this point. Kavanaugh served for more than four years in President George W. Bush’s White House, most prominently as staff secretary. Bush and Kavanaugh necessarily had an exceptionally close relationship, and Kavanaugh was, by all accounts, very loyal to Bush.

And that applies to a judge appointed by a Democratic president as well.

Another D.C. Circuit judge adopted the same general principle: Merrick Garland, who had served as principal associate deputy attorney general under President Bill Clinton prior to his own nomination. Garland didn’t routinely recuse from most cases related to Clinton.

He instead recused himself from cases on which he worked as deputy attorney general. That’s as it should be: If a judge has worked on a particular case during his administration service, then recusal is mandatory.

But what of Bove’s personal representation of Trump? The cases in which Bove defended Trump won’t be coming before the Third Circuit, so it doesn’t fall within the prior cases exception.

Many cases “related to Trump” will come before the Third Circuit on which Bove didn’t work. Indeed, many Trump policies will be implemented in two or three years, long after Bove’s confirmation.

His opponents often cite Bove’s criminal representation of Trump in Washington, New York, and Florida. While Bove would need to recuse from litigation related to these cases, he will never have to worry about the prospect because those jurisdictions are in other circuits.

Does this distinction vitiate the claim of such personal bias by Bove as to compel his disqualification from Trump cases as “Emil Bove will never let you down”? It’s true that in the past, judges have ended up being very different on the bench than they were as advocates. Some might remember Chief Justice Warren Burger being a huge disappointment to Richard Nixon. But that doesn’t mean Bove will be another Burger.

Is Bove as deeply biased as Trump contends, or is he capable of separating his role as Trump attorney and advocate from his role as a judge of the Third Circuit Court of Appeals such that the strictures of 28 USC §455, whether subsection (a) or (b)(1), wouldn’t mandate his disqualification?

*Tuesday Talk rules apply.