The Fourth Circuit May Have Quietly Set Up Supreme Court Cert Review on Judicial Recusals

By Michael Wein

An easily overlooked set of Opinions and Orders in the Fourth Circuit Court of Appeals, those in United States v. Jeffrey Sterling, (at least when considered together), appears to have gone mostly unnoticed in the blogosphere. It involves an unlikely combination of Certworthy issues for the Supreme Court, not just on the scope of a potential privilege and/or 1^st Amendment rights that exists for reporters to obtain and keep secret information received from confidential sources, but to include the ethics issue for Judicial Recusal, at least with respect to the intervenor, New York Times reporter James Risen, and a host of Amici groups, including the Times, Washington Post, Tribune Company, and CNN. (Actually, most major media companies in the U.S.).

This case from the outset was unusual, involving the Obama administration’s prosecution under the Espionage Act to a former CIA employee, and a subpoena to the alleged ‘leakee’ of the confidential information. Orders were issued at the request of the Government, that much of the oral arguments would not be open to the public. The only exception was on the oral argument on the propriety of the subpoena to the reporter, which remained open to the public.

Over a year after oral arguments, on July 19, 2013, the Fourth Circuit, with a panel of Chief Judge Traxler, Judge Diaz and Judge Gregory, issued 118 pages of opinions combined, mostly affirming the trial Court, and permitting the trial to go forward with the Reporter testifying.

It gets even more interesting, though these decisions were easier to miss. On October 15, 2013, (after a timely en banc petition was filed), a decision respecting and dissenting from the denial of the Petition for Rehearing En banc was issued. Judge Gregory, who was on the original 3-judge panel, requested a poll on the en banc issue, and all other 4^th Cir. judges voted against. Judge Gregory, nevertheless, dissented from the en banc denial, noting the importance of the case, despite no other Circuit opinions yet on the scope of a reporter’s privilege in criminal Espionage Act prosecutions, a mostly recent phenomenon.

“ [F]orty-nine of the fifty United States, as well as the District of Columbia, have recognized some form of reporter’s privilege, whether by statute or in case law. See United States v. Sterling, 724 F.3d 482, 532-33 (4th Cir. 2013) (Gregory, J., dissenting as to Issue I). There is not, as yet, a federal statute recognizing a reporter’s privilege, but we have recognized such a privilege in the civil context. See, e.g., LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986).” Slip Op. at 5. (J. Gregory, dissenting)

It’s clear that this is an above-average Certworthy case, though whether Certiorari would be granted in the Supreme Court on this matter that arguably does not yet have a Circuit Split, despite the “exceptional importance” of the legal issues, is too soon to say for sure (the Petitioners have 90 days to typically decide to seek relief in the Supreme Court). However, what’s potentially even more interesting, is the comments of Judges King and Keenan, both whom own Time Warner stock (a major media outlet that owns a number of media outlets that were Amici in the case), explaining their participation in even voting against the en banc question. Judges King and Keenan took the time in respecting the denial of rehearing en banc, to address any concerns that their voting in the matter would be improper, based on either the Judicial Canon of Ethics or an advisory ethics opinion given previously to Federal judges. One such concern, is that it would allow the possibility of ‘judge shopping’ by non-party amicus groups.

The Supreme Court and Federal Courts have specific Rules, such as Rule 29 in the Supreme Court, requiring the corporate entities disclose their interests. Often judges or Justices may and will choose to recuse themselves from handling these types of cases, where a stock they own is involved. (Though because no reasons are necessary to give for a recusal, it is sometimes difficult to affirmatively link the two) Though the recusal at issue involves Amici, as opposed to a direct litigant, the Sterling case may be at least a stepping stone, should the Supreme Court tackle the criminal subpoena issue directly, to also comment (by perhaps adding a Certiorari Question regarding the propriety of judicial recusals on Amici group submissions, a large part of Supreme Court practice), to any Questions Presented sought by the Petitioners. See e.g. McNabb v. United States, 318 U.S. 332, 340 (1943) (on how the Supreme Court had authority to grant Certiorari under their supervisor authority, as “[j]udicial supervision of administration of criminal justice in federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence, and such standards are not satisfied merely by observance of those minimal historic safeguards, for securing trial by reason, which are summarized as “due process of law.” Thus far, a couple of sources have noted the unusualness that the Justice Department did not oppose a Stay, which was subsequently granted by the Fourth Circuit two weeks ago.

Just in the past month, a well-heeled Supreme Court practitioner and commentary panel, including former D.C. Circuit Judge Kenneth Starr, spoke at a forum hosted by The Reporters Committee for Freedom of the Press, and substantially discussed the issue of judicial recusals due to potential financial interests, including the concerns that a “financial interest” for recusal purposes of a federal judge is defined as an “ownership of a legal equitable interest, however small.” Also in October, Justice Antonin Scalia was interviewed, and when asked what was the most “heroic” decision he ever made, it was that he refused to recuse himself in the case involving a personal friend and colleague, former Vice-President Dick Cheney, including a twenty-one page Memorandum issued in 2004 by Justice Scalia, justifying the decision.

It’s still a major issue for Federal and Supreme Court justices, deciding whether to recuse themselves, particularly in cases where there are direct financial interests involved, such as owning stocks in the company. The Sterling and Risen case may be on the edge of Certworthiness already, but the issue of whether the Fourth Circuit judges should have recused themselves, is one that the Supreme Court may be interested in examining, particularly since the Court is subjected to regular and heavy involvement with Amicus filings, (which is buttressed, and fomented by current statistics suggesting that Certiorari filings with Amici support, are about 7 times more likely to get granted). Thus, the Supreme Court may wish to use Sterling as a vehicle for themselves as well, or under their Administrative Supervisory authority as head of the Federal Judiciary, with a Question Presented such as, “If a federal judge owns stock in a company subject to an amicus group’s participation, the degree if any that should have, on a Federal Judge’s recusal decision.” It’s reasonable to believe that Sterling has a fair chance of getting Cert granted, and if that happens, we might expect the Supreme Court to also opine on the recusal issue.