In Tuesday's appellate brief, Microsoft criticized Judge Thomas Penfield Jackson for giving interviews to the press while the case is still being litigated. Are judges allowed to speak publicly about pending cases?
No. Judges are supposed to keep their thoughts to themselves, even about cases that haven't been filed yet or that other judges are presiding over. The American Bar Association's Model Code of Judicial Conduct, which has been adopted by most U.S. jurisdictions, says,
A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.
The federal court system--which is where the Microsoft case is being litigated--has adopted an even stricter version of this rule, adding,
The admonition against public comment about the merits of a pending or impending action continues until completion of that appellate process. If the public comment involves a case from the judge's own court, particular care should be taken that the comment does not denigrate public confidence in the integrity or impartiality of the judiciary.
This is because appellate courts often remand cases back to the trial level. So until the appeals process is exhausted, Jackson could once again find himself presiding over the case.
Jackson could face two consequences for violating his hush orders. First, Microsoft could file an ethics complaint with the D.C. Circuit's judicial council, which could then issue an official reprimand. The second and more likely option is for Microsoft to use the interviews--and the fact that several were conducted (though not printed) before Jackson issued his final ruling--to ask the appellate court to remove Jackson from the case, or otherwise cast doubt on his impartiality.
Jackson got himself into this sort of trouble while presiding over the criminal case against the then-mayor of Washington, D.C., Marion Barry. After Barry's conviction but prior to his sentencing, Jackson spoke about the case at Harvard Law School. Barry's lawyers filed a motion to disqualify Jackson from the case. The appellate court denied the motion in a 2-1 ruling but agreed that Jackson had violated judicial ethics.
Explainer thanks Stephen Gillers, vice dean of New York University Law School, and Professor Steven Lubet of Northwestern University Law School for their assistance.