Theodore Chuang, the Federal District Judge for the District of Maryland who halted most elements of President Trump’s latest executive order temporarily banning travel from six Middle Eastern countries, as well as refugees from all countries, served as deputy general counsel at the Department of Homeland Security (DHS) in the Obama administration from 2009 to 2014.
His March 15 ruling in the case, International Refugee Assistance Project (IRAP) v.Trump, in which DHS, the State Department, and President Trump are defendants, raises legitimate questions about whether he should have recused himself from hearing the case in the first place.
Title 28, Part I, Chapter 21, Section 455 (a) “Disqualification of justice, judge, or magistrate judge” of the U.S. Code Annotated reads as follows: (28 U.S. Code § 455 )
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
The Public Advisory Opinions concerning ethical standards of federal judges offer little further guidance on this particular standard.
As former deputy general counsel at DHS under an administration that pursued policies that are diametrically opposed to those of President Trump, it is not surprising that many legal scholars and political commentators have written articles which, taken as a whole, suggest that the impartiality of Judge Chuang’s March 15 ruling “might reasonably be questioned.”
They also criticized a similar ruling handed down on the same day by another Obama appointee, Federal District Judge Derrick Watson, in Hawaii.
“Two federal judges, both nominated by President Barack Obama, have issued injunctions against President Donald Trump’s revised executive order temporarily restricting travel from six terrorist safe havens in the Middle East and Africa,” Hans von Spakovsky, a senior legal fellow at The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, wrote recently at The Daily Signal:
The decisions by Derrick Kahala Watson in Hawaii and Theodore David Chuang in Maryland should shock no one—not because the judges are correct, but because their decisions follow the same pattern as prior decisions in Washington state and the 9th U.S. Circuit Court of Appeals over the first order.
These rulings ignore or misinterpret federal immigration law that gives the president the clear authority to act and prior Supreme Court precedents that support the legality of the president’s actions.
“Judge Chuang’s ruling on Trump’s executive order should be viewed as a continuation of his service to the Democratic party, including his role in stonewalling Congress’ investigation of the Benghazi attacks, and to the cause of ‘social justice.’ With judges as unprincipled as Chuang, his Hawaii counterpart, and the leftists who dominate the Ninth Circuit, one wonders whether the rule of law has a future in America,” respected attorney Paul Mirengoff wrote at Powerline Blog:
Chuang came here to work in the Civil Rights Division of the Justice Department — ground zero for left-wing activism in government.
Before that, he clerked for a judge on the Ninth Circuit Court of Appeals — ground zero for left-wing judicial activism. It is the Ninth Circuit, of course, that ruled against Trump’s original immigration/travel order, and that planted the seed for the absurd argument that the order somehow violates the Establishment Clause of the U.S. Constitution.
You have to hand it to the leftists. They know how to shop for judges.
Even legal scholars affiliated with the liberal Brookings Institute posed serious questions about the March 15 decisions from Chuang in Maryland and Watson in Hawaii.
“We don’t mean here to do an exhaustive legal analysis of either court’s work. But suffice it to say that you don’t have to be a Trumpist to have questions,” Benjamin Wittes and Quinta Jurecic wrote at the Lawfare Blog.
“To put the matter bluntly: why are so many judges being so aggressive here?” they asked:
The legal disputes are both interesting and important. But this meta-legal question strikes us, at least, as far more important and far-reaching. And we think the answer lies in judicial suspicion of Trump’s oath. The question goes to the manner in which we can expect the judiciary to interact with President Trump on this and other issues throughout his presidency. It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.
Or, as famed Harvard Law professor Alan Dershowitz put it, “If Obama had issued the very same order with the same words it would be constitutional,” in the rulings of Judge Chuang and Judge Watson.
“That’s not the way the law is supposed to operate,” he said Saturday on Fox and Friends:
I actually said that this wasn’t constitutional analysis. It was psychoanalysis. There is precedent in extreme cases where legislators in enacting a statute say things that you can sometimes look to the legislative intent. But I have never heard of a case where the rhetoric of a candidate, ambiguous rhetoric to be sure — because I do not believe this is a Muslim ban —focusing on a country like Iran, the greatest exporter of terrorism, not only no vetting, it sends terrorists out in order to kill Americans.
Iran has so much blood on its hands of Americans and American allies, to exclude a country like Iran from the list would be absurd.
And the list —although for a different purpose — was originally designed by President Obama.
So how can you say that the exclusion of six countries on the list was motivated by what Mr. Trump said when he was candidate Trump? That is not good legal analysis. I’m putting my reputation on the line—I predict the case gets to the Supreme Court, the Supreme Court will uphold the major provisions of this ban.
“Judges using campaign rhetoric to infer intent instead of plainly evaluating the law as written is a dangerous development. Also because the public can witness the selective use of this trick, it undermines confidence in the judiciary at a time when the judiciary can’t afford too much erosion of trust,” Mollie Hemingway wrote at The Federalist.
“Regardless of one’s views on the particulars of this executive order and its efficacy, the ability to determine who can enter the country is one of the most obvious and important sovereign decisions a people makes. That power is vested in the executive branch and should not be enjoined by rogue judges. Unelected and unaccountable judges ignoring the law in favor of their feelings is a threat to self-government and rule of law. It needs to stop,” Hemingway concluded.
Some legal experts Breitbart News spoke with say that Judge Chuang was not legally required to recuse himself since his service at DHS ended in 2014, three years before the case was filed, and that no one has yet found any public statements he made previously that would indicate bias in favor of the plaintiffs — refugee advocates and a voluntary agency paid by the federal government to resettle refugees — or against the defendants, President Trump, the Department of Homeland Security, and the Department of State.
As for Chuang’s public record at the Department of Homeland Security, we know that he was temporarily assigned to assist the State Department in covering up its handling of the death of U.S. Ambassador Chris Stevens and three other Americans in Benghazi, Libya on September 11, 2012.
That work led Sen. Chuck Grassley to vigorously object to Chuang’s confirmation by the Senate in 2014.
“The Senate confirmed four of President Obama’s executive and judicial nominees Thursday. Theodore Chuang and George Hazel will serve as U.S. district judges for Maryland. The Senate voted 53-42 on Chuang’s nomination and 95-0 on Hazel’s,” The Hill reported in May 2014:
Senate Judiciary Committee ranking member Chuck Grassley (R-Iowa) said he couldn’t support Chuang’s nomination because he helped the Obama administration “stonewall” Congress on the investigation of the death of four Americans at the U.S. compound in Benghazi, Libya.
“I can’t support his nomination because of the central role Mr. Chuang played in the administration’s efforts to stonewall an investigation into the situation in Benghazi,” Grassley said. “These questions remain unanswered because the administration refuses to recognize the rights of congressional oversight.”
Chuang provided legal counsel to the State Department and Department of Homeland Security.
Breitbart News posed three questions about Judge Chuang’s decision not to recuse himself in this case to the Administrative Office of the U.S. Courts:
(1) Did Judge Chuang’s failure to recuse himself from hearing the IRAP v Trump Complaint constitute a violation of 28 U.S. Code § 455 section (a) “disqualification of justice, judge, or magistrate judge”?
(2) Should Judge Chuang recuse himself from IRAP v Trump going forward?
(3) Will the U.S. Courts require Judge Chuang to recuse himself from IRAP v Trump going forward?
The Administrative Office of the U.S. Courts did not respond to these three questions, but did offer this on Tuesday morning:
“You may find the following advisory opinion helpful. Here’s the link and it’s also copied below, it’s Cannon 3C (e),” a spokesperson for the Administrative Office of the U.S. Courts tells Breitbart News:
The link, the spokesperson subsequently confirmed, is not to an advisory opinion, but instead simply the same Statutory Code referenced earlier in this article.