Judge Richard Leon, a senior U.S. District Judge who sits on the District Court for the District of Columbia, is the judge you want when what you want is to own the libs. Yet, in an order handed down Wednesday, Leon suggested that even he has limited patience for that merry band of misfits and cranks that orbit Donald Trump.
For those of you who may not be familiar with this jurist, Leon handed down what may the the most aggressive anti-birth control decision of the Obama years, holding that even secular employers may ignore federal rules protecting workers’ access to birth control. He also struck down a rule extending the minimum wage and overtime protections to home care workers — a decision that was unanimously reversed on appeal.
Judge Leon gutted the federal ban on housing discrimination, defying the unanimous view of 11 different federal appeals courts in the process. Then, after the Supreme Court rejected his position, Leon practically begged the Trump administration to launch a new attack on the federal Fair Housing Act.
Nevertheless, on Wednesday, Leon indicated that there are some things even he isn’t willing to do in order to protect Donald Trump.
Enter the crank
Leon’s flash of reasonableness arose in a case brought by Jerome Corsi, a Trump ally and birther who has spent much of the last 15 years as a kind of professional conspiracy theorist. Corsi allegedly acted as a liaison between Trump confidant Roger Stone and WikiLeaks founder Julian Assange regarding stolen Democratic campaign emails that Assange allegedly obtained from Russia and published online.
Special Counsel Robert Mueller suspects that Corsi made false statements during an interview with Mueller’s team, and Corsi recently rejected a plea deal offered by Mueller.
And then, Corsi sued…Robert Mueller.
The premise of Corsi’s lawsuit is that “Mueller and his partisan Democrat,
leftist, and ethically and legally conflicted prosecutorial staff” are unjustly prosecuting Corsi “in order to try to uncover information that can be used by Defendant Mueller to coerce, extort, threaten and/or blackmail Plaintiff Corsi into testifying falsely to implicate the president of the United States in crimes and have him removed from office.” Corsi seeks $350 million in damages.
Corsi is, of course, an unhinged crackpot, but he is at least savvy enough to know that his best hope of undercutting Mueller’s investigation in this fashion is to get Judge Leon to hear his case. But the likelihood that Leon would be assigned this case under his court’s ordinary procedures is slim. As a general rule, cases are assigned randomly to one of 23 federal trial judges who sit in the District of Columbia whenever a case is filed in Leon’s court. And Leon also has “senior status” — a kind of semi-retirement for older judges that allows them to hear a reduced caseload.
So Corsi’s lawyers filed a document that appears to be an attempt to trick the court into assigning his case to Leon. Although the general rule in federal litigation is that cases are assigned to random judges, there is an exception when a plaintiff files a case that is closely related to another pending case.
Imagine, for example, that Plaintiff X sues Apple, claiming that a product defect caused their iPhone to explode. Then, two months later, Plaintiff Y files a new case in the same court, which also claims that the same defect caused their phone to blow up. The factual and legal questions arising in both cases (Is the defect real? Did it cause the explosions? Does this case belong in federal court?) would be nearly identical, so it makes sense for a single judge to resolve both cases rather than risking having two judges hand down conflicting rulings.
Corsi’s lawyers claim that a case called Klayman v. Obama, which Leon handled, is so closely related to Mr. Corsi’s suit against Mueller that they both should be heard by the same judge. But even Judge Leon doesn’t appear to buy this claim. Klayman was a lawsuit challenging the National Security Agency’s bulk collection of telephone metadata. The only thing that Klayman appears to have in common with Corsi is that the plaintiff in Klayman, “pathologically litigious attorney” Larry Klayman, also happens to be one of Mr. Corsi’s lawyers.
In any event, Leon handed down a brief order on Wednesday ordering Corsi to “show cause in writing” why his case “is related to Klayman v. Obama.” This sort of “show cause” order is typically handed down by a judge who is inclined to rule against a particular party, and wants to give them one last chance to justify themselves before they get spanked.
So the bad news for Corsi is that one of the most partisan judges in the American legal system isn’t buying Corsi’s effort to hand-pick his own trial judge. Yet, while Corsi’s effort at judge-shopping is unusually ham-handed, there are plenty of other highly partisan judges who are happy to hand down aggressive legal orders benefiting plaintiffs who manipulated the court system to choose which judge would hear their case.
During a 2015 panel, for example, attorney David Rivkin admitted that he engaged in forum-shopping when he filed a lawsuit that almost convinced the Supreme Court to repeal the Affordable Care Act. “We as lawyers know there’s nothing wrong with venue selection,” Rivkin told the audience at that panel. “You do research. You look at a good bench. We’ve done the same thing when we litigated the first challenge to Obamacare. Everybody does it.”
Rivkin’s tactic worked. The case was assigned to Judge Roger Vinson, a staunchly conservative judge who didn’t just order Obamacare repealed — he did so in an opinion gravid with Tea Party rhetoric.
Similarly, when lawyers from the Texas Attorney General’s office filed a suit challenging several of President Obama’s immigration policies, they filed their complaint 350 miles away in the town of Brownsville, Texas. They did so because Judge Andrew Hanen sits in Brownsville, and Hanen has a long history of demanding harsher immigration policy in his opinions.
The Texas AG’s office repeated this tactic more recently, filing an anti-Obamacare lawsuit in Fort Worth, Texas, where former Republican Senate aide Reed O’Connor sits as a federal district judge. O’Connor, who has a long history of handing down poorly reasoned opinions that advance Republican policy goals, is widely expected to hand down a decision ordering at least some parts of the Affordable Care Act repealed any day now.
So, while Judge Leon’s skeptical approach to Corsi is admirable, it’s not hard to guess why Corsi’s lawyers thought they could get away with manipulating the court system to ensure that they got a favorable judge. Judge-shopping isn’t simply a tactic deployed by well-known cranks, it is a successful strategy used by high-profile litigants — and encouraged by highly partisan judges who reward these litigants with sweeping opinions implementing conservative policy goals.
Ultimately, this practice is likely to intensify unless the Supreme Court steps in, either by handing down an opinion discouraging judge-shopping or by amending the Federal Rules of Civil Procedure to prevent it. If they don’t, they can expect to spend a great deal of time reviewing overzealous orders handed down by judges who are only slightly more reasonable than Jerome Corsi.