During the Trump administration, many attorneys have had their judgment and their personal compass tested. These challenges aren’t the ordinary ethical issues lawyers face every day. These instead involve life-changing moments that may mean the difference between compromising personal integrity in exchange for career benefits or taking the lonely road of integrity.
Don McGahn was tested and refused to help the president obstruct justice during the Robert Mueller investigation. Jeff Sessions was tested and properly recused himself from oversight of the Mueller investigation. In the words of the knight guarding the holy grail in Indiana Jones and the Last Crusade, “You have chosen wisely.”
Others have chosen poorly. For example, White House counsel Pat Cipollone’s letter to the House in response to congressional subpoenas will no doubt find its way into legal ethics textbooks for its unprofessional and meritless claims in response to government subpoenas.
This brings us to an acute example of the Trump-era ethics test. Judge Neomi Rao’s dissent in Trump v. Mazars has received much attention for her acceptance of President Trump’s aggressive position that he is above congressional oversight for even potential violations of law. This case involved an effort by the House Oversight Committee to obtain Trump’s tax returns from his accounting firm.
The House Oversight Committee sought these documents to assist with investigations of potential criminal conduct asserted in congressional testimony by Michael Cohen as well as to consider legislative amendments to financial conflict of interest rules.
More important than the reasoning is her decision to join the panel overseeing the case in the first place. Rao’s decision not to recuse herself in that matter deserves more public attention. Judicial recusal is governed by affirmative requirements as well as a catch-all rule that encourages recusal where participation in a matter would leave the public to question a judge’s objectivity.
Recusal is appropriate in any proceeding in which a judge’s impartiality “might reasonably be questioned,” or in which the judge has a “personal bias or prejudice concerning a party.” Judges must be above even the appearance of a conflict of interest.
Consider the confluence of events in the background of Rao’s decision to issue a dissenting opinion in this case. First, Rao previously worked in the Executive Office of the President in the White House in a position that reported directly to Mick Mulvaney.
Mulvaney was not only the director of the Office of Management and Budget at the time but also the acting White House chief of staff and reported directly to the president. Mulvaney has since become a prominent player in the House’s impeachment investigation, but in any event, the House’s attempt to obtain tax returns from Mazars was something one could reasonably conclude both then and now as a likely component of future impeachment proceedings.
I would not suggest that former Trump officials in the judiciary (and there are many) should all recuse themselves from any cases involving the administration or even particular actions of the president like executive orders. What is unique is that this case is such a personal matter for the president, leading as it may to eventual criminal investigation, and her previously working just one step removed from Trump.
Also, consider against this backdrop that Rao has been widely mentioned as being on Trump’s shortlist for the Supreme Court should a vacancy arise. It is common for the D.C. Circuit to serve as a proving ground for future Supreme Court nominees.
It’s also worth mentioning Trump’s particular distaste for prudential recusal by attorneys in government roles. We are all now familiar with the president’s repeated and unyielding Twitter assault on Sessions for his recusal in the Mueller investigation. It is reasonable to assume that if Rao had recused herself in the Mazars case, the president would have dropped her from his Supreme Court shortlist.
When faced with a similar fact pattern to decide whether President Richard Nixon had to turn over White House tapes to Congress as part of the impeachment investigations at that time, Justice William Rehnquist prudently recused himself from consideration of United States v. Nixon based on his prior ties to the Nixon Justice Department.
Rehnquist took the appropriate step in recusing himself and Rao should have done the same in this matter. A careful approach to judicial recusal serves to maintain the public’s faith in the objectivity of our independent judiciary.
J.W. Verret (@JWVerret) is an associate professor at the George Mason University Antonin Scalia Law School.
