Yesterday, Principal Assistant Deputy Attorney General Trent McCotter — who got his position by legalizing alleged bribery — and Associate Attorney General Stan Woodward — who got his by attempting to reward pro-Trump terrorists — filed a judicial complaint that they say targets “at least seven” Minnesota judges, but names just two: Judge Patrick Schiltz and Judge John Tunheim. They base that complaint off this NYT story, which described how DOJ’s stupid decisions in January DDOSed (my word) rule of law in MN and — contrary to the complaint’s claim — names several of the other judges who sat for interviews with NYT’s Mattathias Schwartz.
I’ll do a follow-up to explain how McCotter and Woodward cover up how Harmeet Dhillon’s attacks on judges in Minnesota led far right trolls with a history of ginning up criminal violence to target Douglas Micko, which I laid out here. I suspect McCotter and Woodward are attempting to salvage cases in which DOJ and HSI’s misconduct have led those cases to the point of collapse.
But for now, I want to show how unethical the construction of their complaint is.
As I show below, most of what they “quote” Judge Schiltz to have said actually consists of paraphrases, which are marked in pink below. In one case (the one at the center of their argument that Schiltz is partisan), they lump together phrases that appear in entirely different places in the story, changing at least the context if not the meaning entirely. Moreover, they put what they claim to be offending comments out of order, which further disrupts their context.
For most of this, the best way to see what McCotter and Woodward have done is to compare what appears in the complaint with what appears in the story. Below, I’ve put both side by side. Language from the complaint is italicized; where the complaint quotes Schwartz’ paraphrase rather than a direct quote, I’ve marked it in pink. The actual quotes from the story appear in bold. I’ve put them in the order they appear in the complaint, but the annotations in my PDF of the story show the order they appear in the story.
I will examine just the two most egregious misrepresentations.
McCotter and Woodward base their complaint on two parts of the judicial canon, one, 2A, which requires judges to act in a manner that promotes public confidence in the integrity of the judiciary, and another 3A(6), that prohibits judges from commenting on the merits of a matter pending in any court, a duty that continues until the appellate process is complete.
Regarding the second, the complaint names just two pending cases (though invokes pending DHS cases generally). US v. Levy Armstrong, the Cities Church case, which McCotter and Woodward themselves violate DOJ guidelines by calling “outrageous violations of federal law,” and Avila v. Bondi, which implicates Judge Tunheim, and which is on appeal before SCOTUS.
They claim that Schiltz improperly comments on the Cities Church case by describing, to Schwartz, what happened after he refused to immediately approve complaints against (among others) Don Lemon and Georgia Fort, as follows.
-The Trump Administration has also “gone over his head” (and “gone around him”) “to an appeals court” after Judge Schiltz had advised Minnesota’s U.S. Attorney that Judge Schiltz would not review a magistrate judge’s decision to deny a search warrant application until “after the bench met in person the following week.”
On Jan. 23, Judge Schiltz was at home cooking lunch when he received an email informing him the Trump administration had gone over his head to an appeals court.
[snip]
Minnesota’s U.S. attorney, Daniel Rosen, then took the unusual step of requesting that another judge review Judge Micko’s decision. Judge Schiltz had told Mr. Rosen that he would decide on that after the bench met in person the following week.
That timeline wasn’t fast enough for the Justice Department. The Jan. 23 email informed Judge Schiltz that the administration had gone around him.
None of these “comments” are direct quotes. Three — what I’ve labeled 4a, 4b, and 4c — are by Schwartz’ description all sourced to an email that Schiltz received or are Schwartz’ own description. They leave out what, from Judge Schiltz’ description, are direct quotes;
“I had to sit down and represent myself,” he recalled.
When Judge Schiltz found himself in the spotlight, he said he drew on his experience clerking for Justice Scalia, who he recalled was “utterly unmoved by criticism,” and taught him that “you have to have a thick skin and, you know, uphold your oath.
Worse, the single paraphrase that must come from Judge Schiltz — that he told Dan Rosen to wait until after the full bench met — is a direct quote but not (necessarily) from the interview. It (and some of the other discussion here) appears in one of two letters Judge Schiltz wrote to Eighth Circuit Chief Judge Steven Colloton, the guy to whom this complaint is also addressed!!!!
I informed the U.S. Attorney that because he was asking me to do something that was unprecedented, and because my colleagues had strong and differing views on how our district should respond to such a request, I would not decide whether to issue the five warrants sought by the government until I had a chance to discuss the issue with my colleagues at our bench meeting,
That letter has been public for months!! (I wrote about both letters here.)
So the substance of McCotter and Woodward’s claim that Schiltz was commenting inappropriately about the Cities Church case was utterly fabricated and may entirely be Schwartz’ own description or directly sourced to the publicly docketed letter addressed to the same guy their complaint is.
They lay out their primary complaint about what they claim is partisan commentary in a separate paragraph, which gloms together various “comments” made in the complaint, which I’ve marked below.
Judge Schiltz’s comments are both overtly political and concern matters that are pending before him or still in the appellate process. Oddly, Judge Schiltz accused the Trump Administration of undermining the rule of law while alternately arguing that any violations of court orders were due to staffing shortages and what he characterized as “incompetence.” [3,7] But that characterization, while less charged than an accusation of intentional malfeasance, is itself political. Judge Schultz’s analogy between the Administration’s actions and the behavior of foreign adversaries such as [9] Russia. China, and North Korea is equally outrageous. Statements like these (to say nothing of the accompanying photograph posed for a New York ‘Times photographer) plainly support the inference that Judge Schiltz consciously or subconsciously covets publicity. And purporting to educate or [8] “help Americans better understand” these issues is not a justification to violate ethical rules.
But, once again, McCotter and Woodward are the ones manufacturing things. What they describe as an “outrageous” “analogy” between Trump and Russia (as if that would really bother Trump!) is actually created by taking a comment that appears in the subhed and ¶6, which is not attributed to Trump directly but to the backlog in the courthouse created by Trump’s disregard for orders.
In a rare 90-minute interview seven months later, Judge Schiltz said his order had been prompted by concern that the Trump administration’s disregard for court orders was clogging his courthouse to a near standstill, contributing to rising tensions in the protest-filled city and, ultimately, putting the constitutional order at risk.
What happened in Minnesota’s federal court, he said, “created a grave threat to the rule of law.”
And then lump it together in their complaint, and this paragraph, with this passage, which appears 50-some paragraphs later, at the very end of the story.
At the same time, he said, the violations needed to be taken seriously. The lack of resources led to a result, he said, that should have been anticipated, and that threatened the foundations of the legal system.
Obedience to court orders, Judge Schiltz said, is why people feel secure owning a home, saving money, getting married and having children.
“You walk down the street, and you assume you’re generally safe because of the law,” he said. “It’s the rule of law. If you don’t have it, you have either anarchy or you have authoritarianism. You have Russia or you have China or you have North Korea.
They literally completely fabricate the central argument in their complaint.
So in addition to violating the due process rights of the Cities Church defendants — effectively committing the very crime of which they accuse Judge Schiltz — their complaint consists of three levels of deceit:
There’s more here to refer Trent McCotter and Stan Woodward for judicial sanctions than Judge Schiltz.
The Trump Administration has a “disregard for court orders[.]
This purported “disregard” had “clogg[ed] his courthouse to a near standstill, contributing to rising tensions in the protest-filled city [of Minneapolis] and, ultimately, putting the constitutional order at risk.”
Judge Schiltz said his order had been prompted by concern that the Trump administration’s disregard for court orders was clogging his courthouse to a near standstill, contributing to rising tensions in the protest-filled city and, ultimately, putting the constitutional order at risk.
3)
-Judge Schiltz’s “impression was that most, if not all,” of the purported “noncompliance was due to incompetence,… not due to conscious defiance of orders,” but “[t]he lack of resources led to a result… that should have been anticipated, and that threatened the foundations of the legal system.“
“My impression was that most, if not all, of the noncompliance was due to incompetence,” he said, “not due to conscious defiance of orders.”
At the same time, he said, the violations needed to be taken seriously. The lack of resources led to a result, he said, that should have been anticipated, and that threatened the foundations of the legal system.
-The Trump Administration has also “gone over his head” (and “gone around him”) “to an appeals court” after Judge Schiltz had advised Minnesota’s U.S. Attorney that Judge Schiltz would not review a magistrate judge’s decision to deny a search warrant application until “after the bench met in person the following week.”
On Jan. 23, Judge Schiltz was at home cooking lunch when he received an email informing him the Trump administration had gone over his head to an appeals court.
[snip]
Minnesota’s U.S. attorney, Daniel Rosen, then took the unusual step of requesting that another judge review Judge Micko’s decision. Judge Schiltz had told Mr. Rosen that he would decide on that after the bench met in person the following week.
That timeline wasn’t fast enough for the Justice Department. The Jan. 23 email informed Judge Schiltz that the administration had gone around him.
5)
-Judge Schiltz “would apologetically explain why he needed to check his phones constantly” to friends, because if he did not “[t]he cost…could be somcbody waking up in New Mexico the next day when they shouldn’t have.”
At dinners with friends, Judge Schiltz said he would apologetically explain why he needed to check his phones constantly. “The cost of me enjoying a movie could be somebody waking up in New Mexico the next day when they shouldn’t have,” he recalled.
6)
-Normally “government agencies act as ‘partners’ to judges in tackling challenges to the system,” “[bļut they weren’t this time.”
In the interview, Judge Schiltz said that normally government agencies act as “partners” to judges in tackling challenges to the system.
“But they weren’t this time,” he said. “We were really on our own.”
7)
-Judge Schiltz had said, “This just never happens,” aloud to himself, referring to purportedly “violated orders and other unusual behavior by the Justice Department.”
He said he thought the violations were largely the result of incompetence and staffing shortages, but also worried that the Justice Department had not taken their corrosive effect seriously enough.
“I would say aloud to myself, ‘This just never happens,’” he added, referring to the violated orders and other unusual behavior by the Justice Department.
8)
Judge Schiltz “hoped the portrait of how the bench had handled the crisis would help Americans better understand how the United States’ system of government depends on the rule of law.”
Judge Schiltz said he hoped the portrait of how the bench had handled the crisis would help Americans better understand how the United States’ system of government depends on the rule of law.
-The Trump Administration’s actions “created a grave threat to the rule of law,”without which “you have either anarchy or you have authoritarianism. You have Russia or you have China or you have North Korea.
What happened in Minnesota’s federal court, he said, “created a grave threat to the rule of law.”
[snip]
“You walk down the street, and you assume you’re generally safe because of the law,” he said. “It’s the rule of law. If you don’t have it, you have either anarchy or you have authoritarianism. You have Russia or you have China or you have North Korea.”
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