The Code of Conduct Cannot Be Used To Obtain Discovery

Over the past year, there have been high-profile misconduct complaints filed against two judges that were dismissed on similar grounds.

In 2024, Judge James Wynn of the Fourth Circuit announced he would take senior status, but withdrew that announcement after Trump won. The obvious rationale for his decision was politics. But the Second Circuit Judicial Council refused to inquire into his motives. As I explained in my Civitas column:

In October 2025, the misconduct complaints against Judge Wynn, and the other two judges were dismissed. Chief Judge Debra Livingston wrote the opinion in each case. Livingston found “there is no genuine issue of fact.” She added that whether “the Judge considered the outcome of the election as one factor influencing his decision to withdraw the January 5 letter” was “a factual issue I need not resolve.” Had Chief Judge Livingston simply asked Judge Wynn why he rescinded his senior status, the judge could have defended himself with some legitimate reason. But he didn’t offer such a reason, because there is no plausible, legitimate reason. Regrettably, there is a brazen double standard for brazenly partisan judges. The federal courts routinely scrutinized President Trump’s motivations for improper purposes. But when it comes to rooting out judicial misconduct, judges hide behind a veil of ignorance. 

In other words, it falls to the complainant to learn all possible facts–even when a judge takes some action in private, where it is impossible to learn the facts. The federal judiciary will not permit any discovery.

There was a similar result with the complaint that the Department of Justice filed against Judge Boasberg. Chief Judge Sutton’s opinion lays out this standard of review:

After conducting an initial review, the chief judge of a circuit may dismiss a complaint of judicial misconduct if he concludes: (A) that the claimed conduct, even if it occurred, “is not prejudicial to the effective and expeditious administration of the business of the courts”; (B) that the complaint “is directly related to the merits of a decision or procedural ruling”; (C) that the complaint is “frivolous” because the charges are wholly unsupported; or (D) that the complaint “lack[s] sufficient evidence to raise an inference that misconduct has occurred.” Judicial-Conduct Rule 11(c)(1)(A)–(D); see 28 U.S.C. § 352(a), (b).

Based on this standard, Judge Sutton finds that dismissal is warranted without any further investigation:

The primary theory of the complaint is that the judge made an improper statement at the Judicial Conference on March 11 about the risk that the Administration would not comply with federal judicial rulings. This claim fails to establish a cognizable basis of misconduct. First, it lacks “sufficient evidence” to support the allegations. Judicial-Conduct Rule 11(c)(1)(D).

Judge Sutton ultimately finds that even if Judge Boasberg made certain statements at the Judicial Conference, the statement was not “prejudicial to the effective and expeditious administration of the business of the courts.” Judicial-Conduct Rule 11(c)(1)(A).

As co-blogger Jon Adler noted in an addendum, DOJ does not seem to have filed a petition to review the dismissal.

But the Center to Advance Security in America (CASA) has appealed the dismissal of its complaint (Complaint No. 06-25-90174). I do not have a copy of Chief Judge Sutton’s opinion dismissing this complaint, which was dated December 19, 2025. CASA has addressed several legal questions in its petition for review.

First, the petition argues that Judge Sutton improperly shifted the burden of proof to the plaintiffs:

Here, the statute demonstrates that the facts are “established through investigation.” It is not the burden of the Complainant to prove the facts. Rather, the standard is whether the allegations are capable of being established. They are. Each of the facts were cited with sources such as congressionally released records, court records, or media stories. The facts are verifiable through an investigation.

Despite the evidentiary burden being placed on the judiciary’s investigative process, the Memorandum and Order, on numerous occasions, implies it was the Complainant’s obligation.

Second, the petition charges that standards in the Guide to Judiciary Policy cannot add additional requirements above and beyond the statute:

It does so citing the Judicial-Conduct Rule 11. But a “Guide to Judiciary Policy” cannot supersede the statute itself. The interpretation of this guide must not mean that the Complainant must produce conclusive evidence. Rather, it must mean that the allegations must raise an inference that misconduct has occurred. The word “evidence,” therefore, would describe “evidence” that raises an inference, not dispositive evidence. This interpretation must be the correct one for it to remain consistent with the statutes. That minimal threshold was met by way of Congressional records, court records, and media articles.

I do not think the courts get Auer deference over their own guidance documents.

Third, the petition complains that Judge Sutton imposed a “clear and convincing” standard, which does not appear in the statute:

Later, the Memorandum and Order applies a “clear and convincing evidence” standard, which is nowhere in the statute.25 The case it cites for that standard limits that evidentiary standard to cases about “a judge not following prevailing law,”26 which, as described above, this Complaint is not about.

Putting aside the peculiar issues concerning Judge Boasberg, there seem to be some important question concerning the rules of evidence, burdens of proof, and the interaction between the statute and the Guide to Judiciary Policy.

There is another lingering problem. The complaint about Judge Boasberg’s comments at the Judicial Conference were only possible because of a leak. Usually, the grounds of a misconduct complaint concern something a judge did in public and on the record. But here, the complainants were not present, so they have to rely on press accounts. And, ironically enough, the person who dismissed the complaint was likely present at that meeting, and may have first-hand knowledge beyond what was in the complaint. I appreciate that Chief Judge Srinivasan asked Chief Justice Roberts to reassign the case, as he might hear the Boasberg case on appeal. But Judge Sutton is dismissing a complaint based on the failure to plead more particular facts, when Judge Sutton almost certainly has more facts in his own knowledge. And even if Judge Sutton wasn’t there, it would take him a few moments to ask around. This entire opinion is written behind a strange veil of ignorance. Perhaps under a rule of necessity, some judge has to write that opinion.

Regardless of what you think about the merits, there are some issues with the process that need to be grappled with.

Finally, there is still the vexing issue of Attachment A. DOJ’s complaint included a footnote reference to a document:

On March 11, 2025, at one of the Conference’s semiannual meetings, Judge Boasberg disregarded its history, tradition, and purpose to push a wholly unsolicited discussion about “concerns that the Administration would disregard rulings of federal courts, leading to a constitutional crisis.”Fn

FN2 Attachment A at 16.

That quotation appears in one of Margot Cleveland’s tweets.

Judge Sutton’s opinion explains that Attachment A was never submitted to the court:

The Department identified one source of evidence, Attachment A, for the judge’s statement and for the setting in which it occurred. The complaint, however, did not include the attachment. The D.C. Circuit contacted the Department about the missing attachment and explained that, if it failed to submit the attachment, the circuit would consider the complaint as submitted. The Department did not supply the attachment. In the absence of the attachment, the complaint offers no source for what, if anything, the subject judge said during the Conference, when he said it, whether he said it in response to a question, whether he said it during the Conference or at another meeting, and whether he expressed these concerns as his own or as those of other judges.

What happened here? This was obviously a document of some length, as this quotation appeared on page 16. I suspect based on Cleveland’s tweet it was the internal minutes of the judicial conference meeting? As Judge Sutton notes, all deliberations are private:

Otherwise, the closed-door discussions during the Conference and other meetings are off the record and confidential. See The Judicial Conference of the United States and its Committees 9–10 (Aug. 2013) (“[T]he only public record of Judicial Conference activity is the Report of the Proceedings of the Judicial Conference of the United States.”).

It seems DOJ obtained a full copy of the minutes. Perhaps that should not be surprising. Judge Sutton notes that the Attorney General is invited to attend the meeting.

By statute, the Chief Justice invites the Attorney General of the United States to speak at the Conference, including “with particular reference to cases to which the United States is a party.” 28 U.S.C. § 331.

But DOJ was unable or unwilling to submit it to the court, even in a redacted fashion. Maybe there was a request from someone else in government to not release it, as it could one day makes its way into the public domain? I don’t know. But again, I am confident that Judge Sutton has access to the document where the quoted material exists. The veil of ignorance grows.

At this point, the appeal goes to the Judicial Council of the Sixth Circuit, which includes several Circuit Judges and District Court Judges of the Sixth Circuit.

Let’s see what the full Council decides.