Over at his Lawfire blog, my friend Charlie Dunlap has a provocative post asking if it’s “in the nation’s best interests for the courts to chill the protected speech of law professors?” Charlie’s target is the D.C. Circuit’s August 9 ruling in In re Mohammad (which I’ve previously discussed), in which the court held that Judge Scott Silliman should have recused from hearing the government’s interlocutory appeal to the Court of Military Commission Review (CMCR) in the 9/11 military commission trial at Guantánamo in light of public statements he had made prior to joining the CMCR. Charlie not only criticizes the D.C. Circuit for what he claims is a misinterpretation of the relevant recusal rules, but he suggests that “the court’s decision has the troubling potential to chill First Amendment speech generally, and academic discourse specifically.” As I explain in the post that follows, Charlie is wrong on both points—and rather dramatically so on the latter.
I. Judge Silliman’s Statements and the D.C. Circuit’s Ruling
At the heart of the D.C. Circuit’s August 9 ruling is Rule 902(b)(3) of the Rules for Military Commissions, which provides that “[a] military judge shall . . . disqualify himself . . . [w]here the military judge . . . , except in the performance of duties as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt or innocence of the accused.” Charlie doesn’t dispute that Judge Silliman expressed such an opinion in a 2010 interview in which he referred to “what [the 9/11 defendants] did.” Instead, he argues that the Rule doesn’t (and shouldn’t) apply when the statement at issue was made before the judge’s appointment.
This was also the government’s strongest argument in Mohammad—and the Court of Appeals expressly and unanimously rejected it: “[T]he text of Rule 902(b)(3) contains no such limitation. Rather, by its own terms, the only exception in the Rule is a carve-out for statements made ‘in the performance of duties as military judge.’ . . . [And] the Government has shown this Court no authority that supports reading Rule 902(b)(3) contrary to its plain terms.” Charlie criticizes this analysis for failing “to even discuss the intended purpose of the rule as set out in DoJ’s letter to the court,” a purpose that, the government argued, should be borrowed from the purpose of a different recusal provision, 28 U.S.C. § 455. But the Court of Appeals went out of its way to note (and properly reject) that argument:
Government counsel also alluded to authority for the proposition that Rule for Court Martial 902 “is based on the statute governing disqualification of federal civilian judges, 28 U.S.C. § 455[,]” but the text of 902(b)(3) differs materially from section 455(b)(3), even if the former is “based on” the latter. Id.; see 28 U.S.C. § 455(b)(3) (“He shall also disqualify himself . . . [w]here he has served in governmental employment and in such capacity . . . expressed an opinion concerning the merits of the particular case in controversy.”),
In other words, Charlie’s gripe is not with the D.C. Circuit (which analyzed and rejected the very arguments he claims it ignored), but with the plain text of Rule 902(b)(3), which, as the Court of Appeals concluded, demands “mandatory disqualification under its enumerated circumstances.” So when Charlie writes that “the rule upon which the court relied applied to opinions a judge might have expressed, but did not purport to apply to what a non-judge, law professor might have said,” that may be correct as to § 455, or to what Charlie thinks Rule 902(b)(3) ought to say, but it’s wrong as to what Rule 902(b)(3) actually provides.
Charlie also suggests that any otherwise recusal-worthy pre-judicial statements should be immunized by some combination of the Senate’s subsequent confirmation of Judge Silliman and Judge Silliman’s taking of the judicial oath. Frankly, I don’t understand either of these arguments. If taking the oath wipes the recusal slate clean retrospectively, why wouldn’t that also apply prospectively? After all, the promise Charlie relies upon—to “faithfully and impartially” perform one’s judicial duties—is one judges are bound to for the duration of their service. By that logic, judges should never have to recuse. Hopefully, it’s clear that the recusal rules exist entirely because there are circumstances in which the oath is insufficient. Ditto for Senate confirmation, which is, at most, recognition that prior statements did not disqualify the nominee from the judgeship, not that they will not disqualify him from hearing particular cases as a judge.
Charlie further suggests that, if the oath is meaningless, we should therefore be suspicious of the two members of the D.C. Circuit panel who were appointed by Democratic Presidents, given (Charlie’s assertion) that the Democratic party “has long been hostile to military commissions.” Leaving for another day Charlie’s troubling suggestion that opposition to military commissions is not only partisan, but a hidden agenda item for all Democrats and Democratic-appointed judges, there’s no suggestion in the record (and Charlie offers none of his own) for why any of the three D.C. Circuit panel members might be in violation of applicable recusal rules. And in any event, the point is not that the oath is meaningless; it’s that it isn’t dispositive in the other direction.
Speaking of applicable recusal rules, Charlie takes a bizarre shot at Justice Ruth Bader Ginsburg, who has been criticized for her public remarks about candidate (and now President) Trump. But whatever their propriety, (1) none of Justice Ginsburg’s remarks were about the guilt or innocence of a specific criminal defendant in a specific pending trial (which, let’s remember, is what this case is actually about); and (2) the recusal rules on which Charlie so heavily (mis-)relies don’t apply on their terms (even if they should) to Supreme Court Justices.
All of this is to say, on the merits of the recusal question in Mohammad, I stand by my original post: this was “a straight-up application of settled recusal doctrine . . . [that] strikes me as a no-brainer.” Whether Judge Silliman would have had to recuse under 28 U.S.C. § 455 and whether Justice Ginsburg should recuse from particular cases involving President Trump are materially different questions from what the D.C. Circuit actually decided.
II. The First Amendment Implications (or Lack Thereof)
Charlie pivots from his problematic recusal analysis to a broader claim—”that this is another example of a court being indifferent to the chilling effect of its ruling on the First Amendment activity at a time when the persons who engaged in it were not government officials.” In essence, Charlie is suggesting that the D.C. Circuit’s analysis will chill law professors (and other members of the pool of putative candidates for future CMCR judgeships) from publicly opining about the military commissions, lest those statements be used to force their recusal in subsequent proceedings—and that this poses grave concerns for academic freedom.
This claim strikes me as deeply unpersuasive. Academic freedom is not, as Charlie suggests, an immunity from downstream consequences for statements academics make in their academic capacity; it is far more specifically about protecting their ability to remain an academic, without sanction, despite expressing unpopular views or pursuing unpopular lines of scholarly research or other inquiry. If I say something as a law professor that formally or functionally disqualifies me from consideration for some other, non-academic position, them’s the breaks. Otherwise, on Charlie’s view, if I made public statements as a law professor that, for example, would disqualify me from receiving a security clearance, the security clearance rules would therefore raise academic freedom concerns. Not so much, methinks.
Finally, Charlie closes with an in terrorem argument—asking (rhetorically) whether “we really think there are authentically qualified persons ‘out there’ who have never commented on the guilt of KSM at one point or another—particularly after his own admissions,” and whether “we need to make accommodations for especially notorious cases that arise in the context of an ongoing armed conflict?” Charlie appears to think that the answers are “no” and “yes,” respectively, but this has things entirely backwards. I can think of dozens of leading national security law scholars and practitioners who, I’m willing to bet, have never publicly offered an opinion on the guilt or innocence of the 9/11 defendants. To be sure, I’m not one of them, but it’s not like I’ve been waiting by the phone for my CMCR nomination…
More importantly, the idea that “we need to make accommodations” for the 9/11 trial (here, in favor of allowing a judge who has publicly taken a position on the guilt of the defendants to hear an appeal in their case) is the very last thing that the 9/11 trial needs. Part of why the military court recusal rules are broader than the civilian court rules on which Charlie hangs so much of his analysis is because the former tribunals don’t have the same structural independence as the latter, and therefore raise far more serious legitimacy and fundamental fairness concerns. After all, recusal is not just about actual impropriety; it’s also about the appearance thereof. Why anyone would want to risk having a conviction in the 9/11 trial tossed (or, worse, not) because of the participation in a pre-trial interlocutory appeal of a judge who expressed such a public opinion is beyond me.
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To be clear, I’ve long been an admirer of Judge Silliman’s. And even if I wasn’t, his office and his service would still deserve (and have) my respect. And because, like Charlie, I know him, I too have faith in his ability to be an impartial arbiter of the disputes before him, even appeals in the 9/11 trial. Indeed, I suspect that Charlie’s post was motivated at least in part by frustration that one statement a friend made in a different context seven years ago could have such reverberations today. But recusal rules exist to eliminate even the prospect of impropriety, and it’s not hard to see why those who don’t know Judge Silliman (and who won’t just take Charlie’s or my word for it) would be troubled by the specter of a judge participating in an appeal in a case in which he had previously expressed an opinion about the defendants’ guilt—especially in the Guantánamo military commissions, which don’t need any help manufacturing new legitimacy concerns. Thus, even if I agreed with Charlie that the D.C. Circuit’s (correct) ruling requiring Judge Silliman’s recusal has non-zero consequences for academic freedom (and, again, I rather vehemently don’t), I dare say that the cost would be worth it.
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