That's Not How Recusal Works, That's Not How Any Of This Works!

I've Got A Lot Of Problems With You People, And Now You're Going To Hear About It.

As I wrote this weekend, the apparent assignment of the criminal case against Donald Trump to United States District Judge Aileen Cannon bodes very ill for the prosecution. Judge Cannon’s favorable handling of Trump’s hare-brained attack on the federal investigation of his conduct was seen widely as far outside judicial norms, an observation supported by the blunt language and harsh terms of the 11th Circuit ruling overturning her.

Now “recuse! recuse!” falls from nearly every lip, and the disqualification statute governing federal judges is cited, unconvincingly and suspiciously vaguely, like a Canadian girlfriend. My role is that of an emo legal Cassandra, to tell you in vain that recusal law doesn’t do what you want it to do. Your role is probably not to listen to me, possibly noisily. One of us has offended one or more gods; that’s how we get into tsuris like this.

Let’s begin with the statute. The relevant law is Title 28, United States Code, Section 455. It begins with a broad, rather vague pronouncement:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.¹

We’ll get back to that. Suffice it to say it doesn’t mean what you hope it means. A plain-language reading is not reliable.

The statute goes on to enumerate various specific circumstances requiring disqualification, for instance:

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

You’re probably saying “wow, that (b)(1) sure seems broad, it covers any time that a judge is biased!” Not so. Once again, a plain-language reading is not reliable.

Federal courts have repeatedly interpreted Section 455 narrowly in several crucial ways. They have emphasized that the question of whether a judge is biased must be decided “objectively: “whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality.” But here’s the thing: once again, the plain language reading of this test is not reliable. One of the hazards of a black robe is a tendency to think that your views are the (only) objectively reasonable ones. The law on Section 455 reflects a set of judicial norms and values, not necessarily the norms or values of a “lay observer.”

For instance, you, an unlettered peasant, may believe that it is reasonable to question a federal judge’s impartiality when the president who appointed them is a party to a case. But federal judges think that’s not objectively reasonable to believe, so it’s quite well established that it's not a ground for recusal. I can certainly see policy reasons that you don’t want to kick judges off cases based on who appointed them, but saying that no objective lay observer would doubt the judge’s impartiality is frankly delusional. What federal judges actually mean by this is “no reasonable person fully immersed in federal judicial history and culture and accepting its norms would doubt this judge’s neutrality.”² It’s deeply unreflective.

Similarly, you may think that it’s reasonable to question a judge’s impartiality when they make terrible, stupid rulings against one party or for the other, or when they say angry, intolerant stuff about one of the parties. But as federal judges will explain, it’s just not. Here’s how Justice Scalia explained it more than thirty years ago:

First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S., at 583, 86 S.Ct., at 1710. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), a World War I espionage case against German–American defendants: “One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans” because their “hearts are reeking with disloyalty.” Id., at 28 (internal quotation marks omitted). Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration—even a stern and short-tempered judge's ordinary efforts at courtroom administration—remain immune.

Now every time a lawyer says “almost never”, there’s an inevitable reaction:

But there’s really not. Motions to recuse (which any party to the case can bring) are common. They are brought by three categories of people: (1) pro se litigants who think any ruling against them is a travesty of justice, (2) dumb lawyers, (3) lawyers who have no client control or who are using the motion as a vehicle for grandstanding. Motions are almost never — I am tempted to say “functionally never” — granted because of how the judge acted in the case. Almost all of the cases finding that disqualification is mandatory involve an “extrajudicial source” — that is, a sign of bias arising outside the judge’s conduct in the case, like evidence that the judge has stock in a company that’s a party, or previously represented a party as a lawyer, or received information about the case through an extrajudicial source. A judge’s rulings and behavior are only grounds for recusal when they are “so extreme as to display clear inability to render fair judgment.”

It’s difficult to convey to you what a solid wall of precedent there is on this point, and how hopeless a motion to recuse looks to anyone familiar with the law. That’s because this belief — that it’s objectively unreasonable to doubt the neutrality of a judge who makes ridiculously partial rulings or says inflammatory things — is immovably ensconced in the judicial mindset but completely ridiculous to most normal people. There are few better examples of what a moonbeams-and-unicorns invention of fancy the “reasonable person” test can be.

So: any ruling that Judge Cannon must be recused because of her frankly lawless rulings for Trump would be extremely and norm-breakingly unusual.³ Does that mean there’s no way to get her off the case? No.

There’s another procedural vehicle with a more ambiguous, discretionary standard. A United States Court of Appeal may, when reviewing something properly before it, “cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” On quite rare occasions, Courts of Appeal use that power to send a case back to a different United States District Judge. That tends to happen when the trial court stubbornly sticks to a ruling the Court of Appeals said was wrong, or where the record reflects extreme intemperance by the judge. Here’s how the Eleventh Circuit — which covers federal courts in Florida — puts it:

We can order reassignment “as part of our supervisory authority over the district courts in this Circuit.” United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.1989); see 28 U.S.C. § 2106 (“[A] court of appellate jurisdiction ... may remand the cause and ... require such further proceedings to be had as may be just under the circumstances.”). In the absence of actual bias, we consider at least three factors in determining whether to reassign a case: “(1) whether the original judge would have difficulty putting his previous views and findings aside; (2) whether reassignment is appropriate to preserve the appearance of justice; (3) whether reassignment would entail waste and duplication out of proportion to gains realized from reassignment.” Torkington, 874 F.2d at 1447. Reassignment can become warranted on the second or third appeal, even though it was not warranted on the first or second appeal. See Shaygan, 652 F.3d at 1318–19 (citing United States v. Martin, 455 F.3d 1227, 1242 (11th Cir.2006); United States v. Gupta, 572 F.3d 878, 892 (11th Cir.2009)).

However, courts consider this power “extraordinary” and “do not use it lightly.” For instance, in the case cited above, the 11th Circuit declined to send the case to a new judge even though the judge had stuck to a ruling the 11th Circuit had previously rejected and conveyed his disapproval and dislike of the case and subject matter. So, getting the Court of Appeals to reassign a case is very rare and an uphill battle.

The most likely scenario for an order disqualifying Judge Cannon is if she makes some other lawless and remarkable order in Trump’s favor and the government seeks extraordinary review (not a regular appeal, which could take years), gets the 11th Circuit to overturn her again on that substantive issue, and also asks the court to send the case back to another judge. Judge Cannon’s recognition of that possibility — and her perception of how blunt and embarrassing the 11th Circuit’s last order was — might lead her to be more cautious and temperate. But even if she issues another wild and crazy order, it’s an uphill battle to get the 11th Circuit to take her off the case.

In short: Judge Cannon almost certainly won’t be removed from the case for bias unless (1) the court makes an unprecedent and norm-shattering ruling or (2) she delivers another travesty of an order and the 11th Circuit kicks her off. The first is extremely unlikely, the second is somewhat unlikely.

The law isn’t always what a plain reading of a statute would lead you to expect; often you need to know the history and context. More importantly, the law isn’t what you wish it were.

Sorry. This is just how God made me.

Edited to add: I don’t have anything against Isaac Chotiner or the New Yorker, but this article on recusal is bad and they should feel bad. First, it quotes Section 455’s plain language but does not disclose — or show any knowledge whatsoever of — the wall of authority discussed above that completely changes that meaning. He also says that Cannon would hear the motion to recuse her herself, but that's not true. The article promotes misunderstanding the relevant standard.

1. Congress originally passed the law in 1948 when hardly anyone could imagine a woman being a judge and the masculine was widely accepted as neutral. You could change it. Many statutes have been changed. But right now changing statutory language to gender-neutral terms is widely regarding as pedophilic Marxism by the sort of serious people who dominate the country. So there the “his” sits, awkward and unwanted and begrudgingly tolerated, like Mike Pence.

2. I think my favorite example of this mindset is the Ninth Circuit saying “well OBVIOUSLY a judge can fairly consider the case of someone who threatened to murder the president who appointed him, DUH.”

3. Judge Cannon could decide that she doesn’t want any part of this circus and decide to recuse herself. But I do not believe the historical record suggests that Trumpists leave voluntarily when not wanted.