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Tainted Justice Findings





CRC's investigation, Tainted Justice: How Private Judicial Trips Undermine Public Trust in the Federal Judiciary, co-authored by CRC lawyers Doug Kendall and Jason Rylander, reveals:

  • While FREE's corporate funders were challenging clean air protections for soot and smog in the DC Circuit in American Trucking Ass'ns, Inc. v. EPA, FREE paid for three DC Circuit judges - Judges Ginsburg, Williams and Sentelle - to attend FREE junkets in Montana. Meanwhile, FREE added Ed Warren, the lawyer who briefed and argued the case on behalf of industry, to its Board of Directors, where he was able to serve with Chief Judge Ginsburg. FREE violated tax laws by leaving Warren's membership on its board off its tax forms. FREE also twice brought Warren-who had no prior contact with FREE-to Montana to wine, dine, lecture to, and ride horseback with dozens of federal judges including Judge Sentelle. Warren resigned from FREE's board around the time Judges Ginsburg and Williams issued a "bizarre and extreme" ruling in his favor, out of an apparent concern that his membership on FREE's Board might look bad. Judge Sentelle then provided a deciding vote against rehearing of the ATA case, sending the case to the Supreme Court. Although the Supreme Court unanimously reversed in January 2001 in a pointed decision written by Justice Scalia, the DC Circuit ruling had the effect of delaying implementation of the soot and smog rules until the Bush administration took over. Predictably, the Bush EPA has proposed implementation rules that protect industry and effectively gut standards designed to bring healthier air to 120 million Americans.

  • FREE paid for a junket for District Judge Vanessa Gilmore while she was presiding over a case seeking several hundred million dollars in civil fines against Koch Industries for hundreds of oils spills in six states. Two foundations controlled by Charles Koch, CEO of Koch Industries, provided nearly one-quarter of FREE's budget that year, including funding designated by FREE as paying for the seminar attended by Judge Gilmore. Charles Koch himself was deposed in the case. Judge Gilmore ultimately accepted a consent decree-questioned by environmental advocates-that required payment of a fraction of the fines sought by the government.

  • District Judge Jed Rakoff attended a FREE junket, also attended by Alfred DeCrane, Texaco's former CEO, who was able to lecture Judge Rakoff on "The Environment: Some Thoughts from the Corner Office." Texaco gave FREE $50,000 that year and DeCrane was an important potential witness in a case called Aguinda v. Texaco, a $1 billion tort claim stemming from Texaco's destruction of the Ecuadorean rainforest. Aguinda was remanded to Judge Rakoff's courtroom by the Second Circuit shortly after Judge Rakoff's trip.

These are not isolated instances. For example, Tainted Justice documents that over a two-year period, three district judges from one district court in Louisiana took FREE junkets. Texaco, which paid $75,000 to FREE during that time, was appearing before those three judges in seven different cases.

Tainted Justice also reveals other new and startling facts about FREE's programs:

  • According to FREE's tax forms, the total value of the gift received for each FREE junket amounts to some $10,000 per trip per judge.

  • While attendance at FREE seminars plummeted in 2000 and 2001 after release of CRC's first junkets investigation, Nothing for Free, and a wave of negative publicity, the number of judges accepting these trips has returned to record levels. Roughly five percent of the active federal judiciary now attends a FREE trip each year.

  • Despite crystal clear ethics guidance that requires judges to report the value of gifts associated with junkets, the judiciary's Federal Disclosure Office actively instructs judges not to disclose this critical information.

  • In recent years, FREE has enabled representatives of six of its corporate funders to lecture to more than 100 federal judges at 10 different FREE seminars on such topics as "The Environment: A CEO's Perspective."

  • FREE's Director John Baden and Program Director Pete Geddes have both written recent articles likening environmentalists to murderous dictators like Stalin, Hitler, and Pol Pot. Describing a message delivered to federal judges at a FREE junket, FREE's John Downen complains that environmentalists seeking action to prevent global warming "hold humanity in low regard."

Still pending legislation would provide $2 million in federal funding to fix the drastic appearance problems caused by these corporate-sponsored trips while giving judges a needed pay increase. To date, the federal judiciary opposes the measure.

Discipline sought

Three federal judges - Chief Judge Ginsburg of the DC Circuit, Chief Judge Danny Boggs of the Sixth Circuit, and Judge Jane Roth of the Third Circuit - actually sit on the governing board of FREE. By doing so, they are lending the weight of their judicial office to the positions on environmental law topics that FREE promotes, undermining public trust in the judiciary as a whole, and reflecting adversely on their own impartiality in violation of several canons of the Code of Conduct for United States Judges. CRC is today filing ethics petitions asking the Judicial Council for each of these circuits to force the judge's resignation from FREE's board.

The violations of conduct codes for judges are clear. Judges must "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial branch" and must avoid service on boards of organizations where it "reflects adversely on their impartiality." Federal judges cannot even attend a brown bag lunch at a law firm out of concern that it might indicate the firm wields "special influence" over the judge. Judges plainly cannot sit on the board of an organization like FREE that takes money from interested parties to host judges on vacation-style trips designed to advance one side's perspective in a particular area of the law.

The nation's leading judicial ethics expert, Professor Stephen Gillers of New York University School of Law, has reviewed the results of the investigation and is available for comment at 202-998-6264. Monroe Freedman, Lichtenstein Distinguished Professor of Legal Ethics at Hofstra Law School, may also be reached for comment at 212-459-0350.

CRC's searchable database of which judges have taken which corporate-funded junkets has been updated to include years 1999-2001, and is available for searching at www.tripsforjudges.org.

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