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threatens judicial independence. The guidelines state that the College should speak out when there is “any threat, even if implicit, of physical violence or injury” or “any attempt to cause fear or humiliation of the judge or to chill the judge’s independence.” The College also should respond to “a public official’s statements that intend, or appear to intend, intimida- tion of a judge in his/her decision, before or after the decision” with due consideration given to that public official’s freedom of expression concerning matters before the courts. And the College should speak when a statement “characterize[es] a judge as being of a certain perspec- tive/ bias/ allegiance.” The guidelines also call for the College to “be alert to prosecutors facing attacks for prosecutorial decisions they have made” because “we know these attacks threaten the safety of prosecutors and their families.”
With respect to the April 2, 2024 public statement by the College, the Judicial Independence Committee met promptly after former President Trump’s attacks on the judges and prosecutors handling his cases, drafted the statement, approved it unanimously – which does not always occur – and forwarded it to the College’s Executive Committee. The Executive Committee also approved the statement unanimously and forwarded it to the full Board of Regents and our Past Presidents for comment before it was released. Speaking for myself, I had no hesitancy in con- cluding that these statements by the former President went beyond the bounds of legitimate free expression and constituted a serious attack on judicial independence. Moreover, I believe they posed a risk of intimidation and even the threat of potential acts of violence being aimed at the targets of such vitriolic attacks. As the Judicial Independence Committee’s statement concluded, and the Executive Committee agreed – “speech that is intended, or appears intended, to provoke violence or to intimidate those engaged in public service – such as judges and prosecutors – has no place in our system and puts our very democracy at risk.” The College’s April 2 statement concluded that such criticisms of judges, prosecutors, and their family members “should be universally condemned.”
We may not always be able to respond promptly, as we were in this instance, but it is the Col- lege’s stated policy to respond to such statements; and we recognized that our obligations as lawyers “demand no less of us.” I hope that this commentary is helpful to all those who had questions or concerns about the College’s April 2, 2024 public statement.
Bill Murphy
SUMMER 2024 JOURNAL 8
As the College determined in its 2006 White Paper, it is our longstanding policy to address threats to judicial independence, including ad hominem attacks on judges for engaging in the performance of their judicial duties.