The Morning After: Representatives Express Concern About Flynn’s Resignation

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Hearing on Judicial Ethics and Transparency

By: Laura Saini

The morning after National Security Adviser Michael Flynn resigned, the House Subcommittee on Courts, Intellectual Property and the Internet held a hearing on judiciary transparency and ethics. However, the congressmen changed the topic several times on Tuesday. Instead, they wanted to discuss the Trump administration’s ethical controversies. Rep. Hakeem Jeffries, D-N.Y., was the first to speak about it.

“The timing of the hearing is a bit perplexing,” said Jeffries “There is a swamp of corruption that is percolating in 1600 Pennsylvania Avenue. The national security adviser has resigned in disgrace. Our national security has been put as stake as a result of the Trump administration playing footsies with Vladimir Putin. It’s impossible to figure out where the Trump family business ends and the White House begins.”

Other congressmen voiced agreement. They said a hearing about transparency and ethics should include the Trump administration’s recent events.

“It doesn’t take a constitutional law scholar to see that President Trump should not continue to have an ownership stake to a company that bears his name,” said Rep. Ted Deutch, D-Calif. “The complete inadequacy of President Trump’s approach to conflicts begs us here, the House Judiciary Committee, to investigate ethics violations of the president and his nominees.”

“His choice to violate the constitution and his complete disregard for the well-established norms followed by previous administrations expose our democracy to potential foreign influence and the risk that he will use the power of his office to divert the public good for his own private benefit,” Deutch said. “These, Mr. Chairman, I would respectfully suggest are the most pressing issues of transparency and ethics we face today.”

However, Chairman Darrell Issa, R-Calif., noted that the subject of the hearing was judiciary ethics. He did not permit the committee to discuss Flynn’s resignation. The subcommittee was permitted to talk about Trump’s attacks of federal judges though.

“These attacks are deadly serious,” said Charles Geyh, a witness in the hearing and a professor of law at Indiana University. “Suggesting that the judiciary should not be respected because the judges are ‘so-called,’ that they are deserving of respect if they do what the president wants, can erode public confidence in the independent judiciary.”

Geyh cited social scientist’s belief that Trump crossed the line. Social scientists say that the public is aware that judges come with their own ideologies and beliefs, but suggesting they are illegitimate for not following the president’s wishes is concerning.

“The line gets crossed when judges are perceived as just politicians in robes,” Geyh said. “At that point the judiciary can very quickly fall like a house of cards if we lose that faith in legitimacy.”

After discussing the Trump administration’s controversial actions, the congressmen and congresswomen discussed what was on the agenda for the hearing. The specific topics were: discussing Cameras in the Court Room Act, lowering the costs of Public Access to Court Electronic Records (PACER) services, and examining judiciary disciplinary rules and procedure.

Currently, cameras are generally not allowed in the courts. The only exceptions are high-profile cases, like the O.J. Simpson trial. Cameras in the Courtroom is an act that would allow Supreme Court proceedings to be televised. The consensus was that cameras should be allowed in appellate courts, meaning courts that hear appeals to a trial court ruling.

“It cannot be overstated that in this current political climate, when democratic principles are being tested and long-established forms of journalism and mass communications are being questioned, opening courts to electronic coverage is an essential and directly deliverable medium for providing the public with the ability to see and hear that justice is being done,” said Mickey H. Osterreicher, a witness from the National Press Photographers Association, an advocacy group dedicated to visual journalism.

However, the congressmen were not in agreement about allowing cameras in the trial court.

“There’s enough grandstanding in Congress before the cameras, in hearings and on the floor,” said Rep. Tom Marino, R-Pa. “Can you imagine what would take place in a [trial] courtroom?”

The main concern for allowing cameras in trial courtrooms is that lawyers and judges would play to the cameras. The committee frequently cited the OJ Simpson trial as an example, where the lawyers were said to be overly dramatic because they knew they were televised.

Some reasons given against cameras in trial courts were the safety of children, sexual assault victims and witnesses. Many congressmen said children testifying should not be televised because they are generally afforded an extra level of privacy and protection. They also said sexual assault testimony should not be televised because of potential trauma to the victim. Lastly, they said witnesses testifying in high-profile cases should not be televised for their own safety.

“The trial court judge can decide whether or not someone will be televised. It should be up to their discretion,” said Osterreicher in response to these issues.

Another major issue discussed in the hearing was regarding PACER, a government service that allows the public to obtain federal court records. Thomas Bruce, a witness from Legal Information Institute-a non-profit that provides free access to legal research, believes that it is rarely updated and too expensive.

“The fee issue is compelling, but it is not the only issue,” Bruce said. “Dropping fees altogether would be laudable, in that it would remove the economic barriers to public access.”

Lastly, the subcommittee discussed creating a code of ethics for Supreme Court justices. There is currently no set ethical guidelines they are bound to. Geyh, the expert testifying on this issue, said that this problematic.

“Nine of the most powerful judges in the United States are not subject to guidelines,” Geyh said. “You know, and I know, that you’re going to react differently to a code that applies to someone else as opposed to a body of rules that applies to you. Exhibit A of that would be Justice Ginsburg from last fall.”

Justice Ginsburg criticized Trump when he was still a presidential candidate. Two days later, she retracted her statements and apologized. The representatives agreed with Geyh’s testimony.

After the witnesses finished the testimony, Chairman Issa summarized today’s hearing.

“There has been no showing that there’s a reason not to video capture appellate activities broadly,” he said. “Obviously, I think there was less agreement about trial courts, as we got down to victims and witnesses. The act will be introduced for voting.”

He also said he would include reforms to PACER in his expansion of the Digital Accountability and Transparency Act. This act currently requires the federal government to transform its financial spending into open data.

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