Could charging a judge with a felony to get them suspended be "scaled up" indiscriminately by the US Department of Justice?

Question

The most recent US president and administration have expressed displeasure with the judges who don't rule in their favor.

A recent action by the US Department of Justice (which may be less independent from the US president than it has traditionally been) against a state judge has resulted in the state's supreme court suspending the judge "...saying Tuesday that it is in the public interest to relieve her of her duties as she faces two federal charges." Presumably this impacts the judges influence over cases; some may be paused, others might get reassigned to other judges.

Hypothetically, suppose individuals in the Justice department saw this as a nifty way to impact cases, or influence which judges presided over them. Could this be scaled up - indiscriminately used in tens or hundreds of instances?

What balancing or restoring forces might prevent that?

Answer 1

Could charging a judge with a felony to get them suspended be "scaled up" indiscriminately by the US Department of Justice?

Could this be scaled up - indiscriminately used in tens or hundreds of instances?

What balancing or restoring forces might prevent that?

There is a certain amount of speculation that goes into considering an answer to this question, since this tactic is basically unprecedented in U.S. history. Certainly, the federal government has prosecuted judges for corrupt or wrongful conduct before, but almost never as a political tactic, in weak cases, brought without long deliberation first.

A few points are worth noting, however, in evaluating the possibility, without providing a definitive answer:

1. The federal government litigates almost exclusively in the federal courts. It would be quite rare for the federal government to have to worry about how judges rule in state courts for its own purposes. The motive is to create fear that leads to compliance that isn't required by law, and possibly in future cases to influence state court litigation that the federal government is not party to, not to influence how judges in cases where the federal government is a party rule.

2. While it is possible to arrest a state court judge and detain that judge for a short period of time, this can't be sustained without a grand jury indictment. And grand juries, which are usually rubber stamps in the federal court system, view cases against law enforcement officers, judges, celebrities, and politicians with much more skepticism. Grand juries will still indict these people when prosecutors present them with solid evidence, but these are the cases where grand juries tend to actually do what they were intended to do by meaningfully screening potential prosecutions, making it hard to get an indictment and actually bring charges in baseless cases.

3. Federalism concerns and the doctrine of absolute civil immunity for the judicial actions of judges, and the above average legal expertise in the criminal justice process of the average state court judge, means that weak cases (including the one in the news) are likely to be dismissed very early in their cases in pre-trial motion practice and pre-trial motions.

4. The federal judges who rule in those criminal cases are likely to give every benefit of the doubt to a fellow judge in those criminal proceedings. They will release the judges arrested promptly with small dollar amount, probably personal recognizance bonds.

5. Indeed, there is a very high probability that all or almost all of the federal judges in the relevant federal trial court know this state court judge personally, even if they aren't close friends, and if they don't, they almost certainly know someone else in that court who does know this state court judge personally.

6. Many of the federal judges who will be involved in these cases were appointed by Presidents at the opposite end of the political spectrum from the current Presidential administration, and a federal judge is virtually impossible to remove from office legally. It takes bipartisan support to impeach a judge and remove that judge from office with that process, which is something that any administration using this tactic would lack.

7. The decision to arrest the judge in the linked case was almost certainly made by a law enforcement officer, who may have not had a firm grasp of the law or the facts, and may have been encouraged by his higher-ups in law enforcement agencies to be especially aggressive. This was not a decision made by a seasoned federal prosecutor who knows which charges will actually stick, and who will have to present the charges to a grand jury.

8. The push back can take a while, but the risk that state court judges treated like this will push back with exceptionally successful civil rights cases is high. Again, a state court judge who is arrested by a jackbooted ICE officer, is playing in comfortable territory litigating a claim like this one in federal court before an almost certainly sympathetic federal judge. Conceivably, these civil rights cases in federal court could produce injunctions that prohibit federal government law enforcement officers from using this tactic, particularly if it becomes a pattern and practice of some federal law enforcement agency or agencies.

9. While the state supreme court suspended the judge (presumably with pay) pending this criminal process (which will probably be short), in this case: The federal government has no control over whether, and for how long, a state court judge is suspended by the state court system. If the federal government were to use this tactic more often, the state supreme court might treat these charges as less credible and decline to suspend judges until, at least, a formal indictment was issued in a federal court.

10. This is also a risky game to play politically for the political party of the President who uses these tactics, especially conservatives. Conservatives and many swing voters tend to have strong pro-authority instincts and arresting judges, especially state court judges who aren't in the spotlight, can create a lot of discomfort for them. Most state trial court judges were criminal prosecutors before they became judges. If the arrests start getting rejected quickly in the criminal justice process, the President risks a political backlash, even from a significant subset of his own base, that could have catastrophic electoral consequences. Actions like these mobilize powerful people who usually stay on the sidelines of politics to actively take sides against the President and his political party. And, a major loss of support in midterm elections for Congress could make it much harder for the President to govern. The 20-25 percentage point swing from the Conservative Party to the Liberal party in Canada's recent national elections, over just a couple of months, in response to actions by Trump that crossed a red line for lots of people who were planning on voting for a Trump-lite candidate, are suggestive of what the worst case scenario could be for an administration that made wide use of this tactic.

11. Keep in mind, that many state court judges are elected and are well-connected politically themselves. They have powerful allies and no group of public sector employees knows better how to play the political game.

12. There are many issues upon which the ultraconservative U.S. Supreme Court is likely to lean strongly in favor of a very conservative U.S. Presidential administration that appointed many of them. But arresting state court judges is not one of those issues.

Answer 2

This particular case can't be scaled up unless the administration can first persuade hundreds of judges to show a fugitive in their court out the back door. Presumably trying to prevent 'their' accused being arrested in their court -- but the rights and the wrongs of that action aren't decided by the state supreme court, only whether there's a public interest in suspending her while it's pending.

If there were hundreds of utterly spurious federal charges against hundreds of judges (e.g 100 judges charged with having murdered the President, but POTUS is still alive), then their state supreme courts might choose not to apply a principle that "any judge facing federal charges is automatically suspended", since they might not consider it to be in the public interest to defer to federal indictments made in obvious bad faith.

In principle though, I'm sure that federal agents (either at the urging of the administration or otherwise) could attempt to make life difficult for a given state court system, by making false charges against a lot of its judges. Just as they could target any organisation in this way. They would not necessarily need to rely on the state supreme court to suspend the judges in question, since with sufficient false evidence they could persuade a federal court to keep the accused in custody. But, again: as the pattern emerges are federal judges going to believe the evidence put in front of them?

The balancing force is the hope that the federal courts would see that for what it is, and those federal agents would later face charges themselves (for perjury or whatever fits better). The hope is that federal agents and prosecutors, knowing this and also having some basic level of self-respect, will not lightly break the law even if ordered to do so. Whether you share that hope, judges tend to hold quite a high opinion of law enforcement, absent specific evidence against individuals acting badly! So, the balancing force that the judges are looking to is that other judges and law enforcers will not make a mockery of the judicial system in that way.