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Ever since Emil Bove came back into government following Donald Trump’s return to office, he’s found himself mired in controversy. As the deputy attorney general at the start of Trump’s term, Bove was accused of corruptly dismissing a high-profile criminal indictment over the objections of line prosecutors and a U.S. attorney. Around that time, he also allegedly told members of the Justice Department that they should tell the courts “fuck you” in the face of any attempts to stop the president’s unlawful deportations to third-party countries without due process. On Tuesday night, Bove, now a Trump-appointed judge on the 3rd Circuit Court of Appeals, committed a new foul. He attended a Trump rally in Pennsylvania during which the president called Joe Biden a “son of a bitch” and said that Democrats are “bad people” and “sick people.” Within less than 24 hours, a complaint was filed against Bove, accusing him of “abject partisanship” that is unacceptable for a member of the judiciary.
“It should have been obvious to Judge Bove, either at the start of the rally or fairly close to it, that this was a highly charged, highly political event that no federal judge should have been within shouting distance of,” Gabe Roth, executive director of the nonpartisan group Fix the Court, wrote in his judicial misconduct complaint.
All federal judges are expected to follow certain protocol and adhere to the nearly 50-year-old Code of Conduct for United States Judges to maintain the integrity of an independent judiciary. Roth argues that Bove clearly violated that code by attending Trump’s affordability tour on Tuesday, since its spirit was more of a political rally than an economic speech, as the president spent most of the 97-minute-long production attacking Democrats.
I spoke with Roth to understand why he filed the Bove complaint, what could happen next for the appeals court judge, and what message Bove may have been hoping to send with his rally stunt. Our conversation has been edited and condensed for clarity.
Shirin Ali: Why did you decide to file an official complaint against Emil Bove?
Gabe Roth: Federal judges attending political rallies is highly irregular. I’m not sure if it’s unprecedented, but I can’t think of it happening in the past. Bove said that he was just there as a citizen to see the president speak, and theoretically there’s nothing wrong with that if you’re at the State of the Union, a state dinner, or some sort of awards presentation, like a Medal of Honor–type thing. The Kennedy Center Honors is something that judges sometimes attend. I think once Trump started talking, plus the chants of “Four more years!,” signs the attendees were given, and some of the denigrations of one side of the political aisle, this was clearly a political pep rally. It’s unbecoming of a judge to be in attendance at one, because judges are supposed to be wearing neutral black robes in all activities, not red or blue team colors.
The Code of Conduct for U.S. Judges doesn’t discuss every possible impermissible activity that exists under the sun. It’s more of a high-level discussion of things that are proper and improper for judges to do generally. There’s a little bit of explanation under this, but the headline is: Judges should avoid impropriety and the appearance of impropriety in all activities. I thought it was improper that Bove attended the rally, and that’s a violation of the canon. There is another canon that states that a judge should refrain from political activity, and attending a political pep rally is a political activity. Again, it’s pretty obvious to me that this was an impermissible attendance, under the canons. These codes of conduct have existed in one form or another for over 100 years, and they exist so that the public has trust that judges are doing their jobs without favor of any individual or party, right? That’s the point, not just for the judge’s own behavior, but for the public to have confidence that the judge’s behavior is truly impartial. For example, if and when Trump shows up in some manner in Bove’s courtroom, we want to trust that what he says both inside the courtroom and outside is a reflection of his ability to be impartial in that situation. I think Bove’s attendance impugns that.
Do you know of any other instance when a sitting judge attended a political rally?
I can’t think of any recent examples. There are plenty of examples in 19th– and early-20th-century American politics, when presidents and justices were close and remained close during the president’s time in office, whether it was Justice Abe Fortas and President Lyndon Johnson, or some of President Roosevelt’s appointees.
In recent times, a lot of state court judges have a D or an R next to their names when they’re elected. Some of them are initially appointed and they have to stand for elections, but each state does it slightly differently. That is not how the federal courts work. Federal court judges are, in fact, appointed by a president and confirmed by the Senate, sometimes along partisan lines, like Bove was. The 3rd Circuit actually recorded an en banc case where all the judges showed up and Bove was wearing the same robe as every other judge. They all look like Emil Bove, they’re all doing the same thing, but only one of those 14 attended a Trump pep rally [Tuesday] night. If I learned that a federal judge attended a rally—and I used three Democratic politicians that have been giving rallies as of late: Kamala Harris, Gavin Newsom, and Bernie Sanders—I would still file a complaint. If a federal judge, doesn’t matter who or at what level, attends one of those rallies‚ I’ll file a complaint against them, absolutely.
What happens next? Is there a real chance that Bove could face consequences for going to this rally?
The Judicial Conduct and Disability Act doesn’t imagine a lot of different punishments, which I think is typically fine, because Article 3 is a huge impediment in a lot of ways, right? You can’t lower judges’ salaries, but you can theoretically fine them under the financial disclosure law, though that’s never happened. You also can’t fire them from office because they have life tenure, and impeachment and removal is not realistic or, frankly, something that I would recommend.
The act imagines only a very narrow range of disciplinary actions. There is public censure or private censure, or you can temporarily remove cases from a judge, a move that is currently being abused in the Federal Circuit. There’s a 98-year-old judge who’s been temporarily removed from cases for more than two years. It’s a pretty cynical use of that power. There are other ways to resolve the issue rather than temporary removal of cases. But regardless, with Bove I think there is an opportunity. The punishments available under the Judicial Conduct and Disability Act are meaningful because they’re doled out so rarely. It’s infrequent that a judge is publicly or privately censured. It’s very, very infrequent that a judge has cases taken away from them. For the worst things, there’s recommendations to the House of Representatives for impeachment, and that really only occurs in the context of bribery or gross malfeasance. We haven’t really seen that in a judge in probably 15 years, like in District Judge Thomas Porteous’ case.
This is not an administration that—and I’m including Bove in this statement—really feels shame or cares about ethics complaints or norms. My hope is there is an opportunity within the Judicial Conduct and Disability Act for a judicial council or a chief judge to dole out discipline as they deem fit. And I think that would include something like ethics training or a promise from Bove not to attend more Trump rallies. Again, these are not huge disciplinary measures, but hopefully the Judicial Council of the 3rd Circuit will take this complaint seriously, look at their options, and have a serious conversation with Bove: “It’s fine if you attended these rallies when you were off the bench, but if you’re going to be a member in good standing in the 3rd Circuit and have the respect of your colleagues, because you’re probably going to be working with us for the next 30 years, then it behooves you to wear your partisan stripes less frequently.”
It sounds as if the outcome of your complaint will be more about messaging than about an expectation that Bove will face a tangible consequence.
Correct. It’s not the discipline itself; it’s the fact that they do something right and they don’t dismiss it. Between 98 and 99 percent of judicial complaints are dismissed every year, and of those, 95 to 99 percent of them are meritless. There are complaints that are sent in by litigants who lost their case, and it’s sad. A lot of them maybe shouldn’t have lost, or maybe they should have, but the complaint process is not meant for things like Oh, I’m upset at this outcome in this case. You can bring that up in an appeal, refiling, or a motion. That’s not what the complaint process is for. The complaint process is for things like My judge discriminated against me, harassed me, said something improper in the courtroom.
I filed a complaint against a judge that assigned ethics training to Southwest Airlines’ attorneys for, in his view, not being religiously sensitive enough to the concerns of a flight attendant who sued Southwest. Whatever the details of the case, the thing that really frustrated me was that he assigned the ethics training to be done by the Alliance Defending Freedom, which is not an ethics company and made no sense. The ADF is a very partisan organization, so if they wanted to have religious sensitivity training, they could have found some interfaith freedom center or national constitution group. And that’s still ongoing, because the case is still ongoing.
I don’t have any illusion that Bove is necessarily going to change his worldview or his activities on the one hand, but on the other hand, this is a violation of the Code of Conduct. Someone should file a complaint, and I think I’m that someone. So here we go.
There have been rumblings that Bove is being groomed for a possible Supreme Court nomination should a vacancy arise over the next three years. Do you think this rally stunt has something to do with that?
I’m sure he’s on the short list. I think there are others on the short list as well: Judges James Ho, Andrew Oldham, and Stuart Duncan of the 5th Circuit Court of Appeals; Judge Lawrence VanDyke of the 9th Circuit Court of Appeals; District Judge Kathryn Mizelle of Florida; and District Judge Aileen Cannon of the Southern District of Florida.
Trump got a lot of judges confirmed during his first term, and he’s got a lot of young, strong conservatives to choose from at this point. I’m sure it’s in the back of the White House’s mind, if not Bove’s mind. Maybe he wants the attention from a complaint so he can say, Hey, they’re going after me, and I’m the strong conservative who can stand up to them. That’s a really cynical way of looking at the world, but maybe that’s what he wants. I don’t know. I think there’s reason to believe that’s what he’s trying—when so much of governing is trolling these days, it sort of falls into that sphere, essentially.
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