Judges Grapple With When to Speak Publicly Amid Rising Threats

Federal judges are wrestling with how to address an uptick in personal threats against them while navigating limits on what they can say publicly.

Current and former judges in interviews described increased conversations within the judiciary about what the role of judges can and should be when addressing threats and high-profile acts of violence toward members of the bench.

Chief Judge James Boasberg of the federal trial court in Washington said that judges “are certainly aware of the increase in threats” and “are talking both about the threats themselves and the best way for us to respond publicly or otherwise.”

“That is not an easy question given our ethical restrictions and our general desire to remain above the fray,” Boasberg said.

This tension was apparent on March 28 when Senior US District Judge Reggie Walton, who sits on the US District Court for the District of Columbia along with Boasberg, took the rare step of giving a television interview, on CNN, decrying the rise of threats against federal judges and their families.

Senior US District Judge Reggie B. Walton

Scott J. Ferrell/Congressional Quarterly/Getty Images

His appearance came after former President Donald Trump took to social media to criticize the daughter of the New York judge overseeing one of his criminal cases.

Judge Edward Davila, chair of the judicial security committee for the California-based US Court of Appeals for the Ninth Circuit, the nation’s largest federal appeals court, praised Walton’s appearance and message.

It’s “important to let this issue become public,” Davila said in an interview.

“I do think that judges are starting to rethink, and at least reevaluate, how their speech and their conduct can be enhanced to let the public know about this issue, and these issues. It’s kind of new territory, I suppose, so we want to be cautious about things,” Davila said.

Some former judges say Walton’s television appearance could represent a turning point in how the judiciary responds to attacks.

“For the first time in history—and I believe the only time—judges themselves have no choice but to speak out in defense of the judiciary, the Constitution, and the rule of law,” said J. Michael Luttig, a former member of the Virginia-based Fourth Circuit and an outspoken critic of Trump. He described Walton’s interview as an historic “break-the-glass” moment that he hopes will encourage other judges to similarly speak up.

Paul Grimm, a former federal trial judge in Maryland who now leads the Bolch Judicial Institute at Duke Law School, said some judges, like Walton, “believe that this is a critical inflection point in what we are as a country.”

“They’re feeling there’s a need to speak out now that has not existed in the past,” Grimm said.

But Walton’s appearance, which drew fast conservative blowback, may also leave some judges unsure how to navigate the ethical and professional landmine they face when speaking publicly.

“It’s a challenge for judges to navigate that because we’re neutral arbiters. We’re judges, and we can’t speak so much on public issues,” Davila said. “We can speak about the threats that we’ve received in our courthouses, and I believe we can speak in general terms about these threats.”

Rising Threats

Walton, a George W. Bush appointee, said in his interview that recent violent attacks against judges and their relatives moved him to speak publicly.

“It’s important that as judges, we speak out,” Walton told CNN. “Because if we don’t have a viable court system that’s able to function efficiently, then we have tyranny.”

His remarks were made amid a rise in threats to federal judges. In 2020, a gunman targeting Judge Esther Salas of the US District Court for the District of New Jersey fatally shot her son and seriously wounded her husband.

Trump, the likely 2024 Republican nominee, has singled out judges overseeing his cases by name when he disagrees with their decisions, calling them “corrupt” and “Trump hating.” And the number of investigated threats against federal judges has more than doubled in the past four years, according to data provided by the US Marshals, the Justice Department agency tasked with protecting federal judges.

Walton’s court has felt this rise acutely.

The court is handling Trump’s criminal case on election interference charges, while also managing a growing docket of criminal cases related to the Jan. 6, 2021, riot at the Capitol.

Judge Tanya Chutkan, the DC judge who will preside over Trump’s trial, was the target of a so-called swatting call in January. That’s when an individual called in a false shooting report to draw police presence to her residence.

Other DC judges have echoed Walton’s concerns in pointed statements, both on and off the bench.

Less than a week after Walton’s television appearance, Judge Royce Lamberth, a Ronald Reagan appointee, condemned political violence at the sentencing of a man who had led a charge into police officers at the Capitol riot led by Trump supporters seeking to overturn certification of the 2020 election.

We “cannot condone the normalization” of the Jan. 6 riot, Lamberth said from the bench at the April 3 sentencing, before handing down a 7-year prison term.

The judge posted a prepared copy of his remarks to the public court docket afterward, allowing them to be read beyond those who attended the hearing in person.

Speaking at a legal industry event in November, Senior US District Judge Beryl Howell, an Obama appointee and former DC District chief judge, said she and her fellow judges “regularly see the impact of big lies” in Jan. 6 cases. Without naming the former president, she described “a very surprising and downright troubling moment where the importance of facts is dismissed, or ignored.”

Ethical Questions

Law professors said Walton’s appearance, while atypical for a sitting judge, didn’t violate the judicial code of conduct, which prohibits judges from making public comments “on the merits of a matter pending or impending in any court.” Judges may “engage in extrajudicial activities” so long as those activities do not interfere with their duties, undermine impartiality, or “detract from the dignity of the judge’s office,” under the code of conduct.

“I don’t think it’s unethical, but I think it’s unusual,” Ben Barton, a law professor at the University of Tennessee, said of Walton’s appearance.

Still, concerns over how to navigate strict ethics requirements for judges can dissuade many from speaking out. Judges who condemn, directly or indirectly, Trump’s comments are also likely to draw ethics complaints, which the judiciary must act on.

The Article III Project, a conservative legal advocacy group, promptly lodged a complaint against Walton alleging he violated the judicial canon barring judges from weighing in on pending cases, given the pending criminal charges against Trump.

Republican Conference Chair Rep. Elise Stefanik of New York had also filed a complaint against Howell over what she described as a “highly inappropriate political speech.”

Some legal organizations have issued statements of their own, in recognition that judges can’t freely defend themselves against attacks from litigants in their courtrooms.

Mary Smith, president of the American Bar Association, urged lawyers in a statement to “rededicate themselves to preserving our nation’s impartial system of justice” and “stand up for our judges and their staffs.”

The American College of Trial Lawyers, in a statement, condemned Trump’s “recent vitriolic statements” and expressed support for Walton’s remarks.

Bill Murphy, president of the trial lawyers’ group, said he hears from judges that while they are concerned about the uptick in threats, they feel “constrained in what they can say.”

“A judge who is attacked in this way is really prohibited from calling the press or responding to a media inquiry, so I think it’s incumbent upon lawyers who become aware of it to speak up,” Murphy said.

Grimm, the former Maryland federal judge who stepped down in late 2022, said he generally steered clear of making public statements or responding to threats he received while serving on the bench. But after witnessing the rise in threats to judges over the past year—including an incident when a Maryland state court judge was fatally shot in his driveway—he said he might have reacted differently were he still a federal judge today.

“If I were back in that position now, would I come out and say something? I might,” Grimm said.