Maryanne Trump Barry’s quiet retirement earlier this year from a federal appeals court short-circuited a judicial ethics investigation, allowing the president’s older sister to dodge potentially serious consequences such as loss of full retirement benefits.
The former Third Circuit judge faced the civil probe that was triggered by a New York Times report last year about whether she and her siblings, including her brother Donald, benefited from alleged tax schemes linked to her late father. Four complaints of judicial misconduct were filed in October of 2018. At the time, Barry, now 82, was semi-retired and not hearing cases.
The Judicial Council of the Second Circuit terminated its inquiry because it can’t investigate retired judges.
The treatment of her case is not without recent precedent, and raises questions about a loophole in the conduct code for federal judges that allows them to avoid scrutiny by stepping down.
In 2017, Ninth Circuit Judge Alex Kozinski escaped an investigation of alleged sexual misconduct by retiring, keeping his full retirement pay. He still practices law.
An investigation into allegations that Brett M. Kavanaugh gave false testimony during his Supreme Court confirmation hearing while he was still an appellate judge was dropped once he joined the high court.
“The retirements of Maryanne Trump Barry and Alex Kozinski and the elevation of Brett Kavanaugh highlight a weakness of the disciplinary system for federal judges: they can escape not just discipline but also investigation by leaving the judiciary or joining the Supreme Court,” Kathleen Clark, legal ethics professor at Washington University in St. Louis School of Law said.
Moreover, the problem of judges being “able to retire to avoid punishment, all while maintaining their six-figure annual pensions,” has “reached a crisis point,” said Gabe Roth, of the watchdog group Fix the Court.
Federal judges can retire at 65 with their current salary.
INTERVIEW: Gabe Roth, Executive Director of Fix the Court, a judicial watchdog group, speaks with Patrick Gregory.
The options for pursuing discipline against judges who’ve retired or joined the Supreme Court are practically nonexistent, but that could change.
A proposed ethics bill (HR 1) making its way through Congress would require a code of ethics for federal judges and Supreme Court justices but doesn’t specifically address the issue of holding judges accountable for alleged misconduct.
Still, there’s bipartisan interest in exploring what kinds of ethics reforms are needed for the bench, including the Supreme Court, a House Democratic aide said.
There’s also been talk of creating an inspector general for the judiciary, an idea former Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has mentioned.
“In the executive branch, almost every agency (other than the White House) has an inspector general, and it may be time for the judiciary to get one,” Clark said.
Another option is to amend the Judicial Conduct and Disability Act of 1980, which authorizes such investigations.
Courts have interpreted the law to mean that Congress didn’t intend to include former judges within its purview, even if the alleged misconduct occurred on the bench, Stephen Gillers, an ethics professor with New York University School of Law, said.
“That is a plausible reading but not an inevitable one,” Gillers said.
“The solution would be to amend the statute. Failing that, the judge does escape professional discipline if it would otherwise be appropriate,” he added.
It’s possible for individuals to pursue tort remedies for battery in cases of alleged sexual assault but often the statute of limitation has run. And in Barry’s case, the IRS or federal prosecutors could open an investigation but there’s been no indication that will happen.
Another possibility is impeachment, but that’s used only very rarely.
“If the courts are serious about maintaining public trust, they’d work with Congress to create a procedure under which retirement would no longer foreclose the judicial complaint process,” Roth said. “Otherwise, impeachment is the only remedy, and that remains a high bar politically, even with these egregious acts.”
Only eight judges have been impeached by Congress since 1804.
Concerns about the lack of accountability for judges who resign or retire were noted in a June 2018 report Supreme Court Chief Justice John G. Roberts Jr. commissioned after sexual harassment allegations against Kozinski surfaced.
But the report made no recommendations on whether disciplinary action should continue following such resignations.
The federal judiciary announced in March that it would adopt new sexual harassment policies clarifying what behavior is prohibited and addressing informal methods to reporting misconduct.
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