Before I accept an expert witness engagement, I run a conflicts check. The case, the client, and the counsel all have to clear it. An expert with a bias is an expert with no value. I worked my way through college and built a career on one asset nobody can lend you, which is a reputation for fairness.
Federal judges answer to the same rule, and two Minnesota judges are finding out how it feels. The Justice Department has asked them to step aside from immigration-related cases after both spoke to The New York Times about Operation Metro Surge, the administration's immigration enforcement campaign. The department can't fire a judge or pull one off a case by itself. It filed a misconduct complaint with the Eighth Circuit, filed separate recusal motions, and now waits while the courts decide. I think the judges handed DOJ a loaded argument. A judge who publicly sizes up a litigant's conduct invites a fair question about open-mindedness.
Judge Patrick Schiltz sat for a 90-minute interview and said the government's actions "created a grave threat to the rule of law." Judge John Tunheim said agents weren't "arresting, in my view, people who were dangerous criminals on the street." Schiltz now oversees the government's effort to revoke the citizenship of Salah Osman Ahmed, who pleaded guilty to a terrorism charge in 2009. Tunheim presides over the case of Hester Sophia Weihmann, a South African permanent resident whom prosecutors allege voted illegally in 2024. She is accused, not convicted. Two days after DOJ filed its complaint, Schiltz repeated many of the same points at a law school symposium, and DOJ cited those remarks in its motion.
The federal judiciary's code of conduct tells judges not to comment publicly on the merits of a pending or impending case, and its commentary says that restraint lasts until the appeal is over. Explaining court procedure and giving scholarly talks are allowed. A separate federal statute requires a judge to step aside in any proceeding where the judge's "impartiality might reasonably be questioned." That test needs no proof of actual bias. It asks how things look to a reasonable person, the same question I ask myself before every engagement.
Party labels explain nothing here. Schiltz is a George W. Bush appointee who clerked for Antonin Scalia. Tunheim was appointed by Bill Clinton. Scalia's recusal memo in the Cheney duck-hunting case accepted the reasonable-questioning test and held that it turns on the facts as they existed, not as they were reported. In Minnesota, the facts sit on the record in the judges' own words.
Hollywood grasped this decades ago. In The Verdict, Paul Newman's ambulance-chasing lawyer faces a high-end defense attorney and a politically connected judge. The film needs no bribe to make its point. Audiences distrust that bench on sight.
The standard can't bend with the speaker's party. In the Cornell fraternity case, one of the men named in the lawsuit asked a New York judge on Oct. 7 to remove Attorney General Letitia James as special prosecutor, arguing her public statements show prejudgment. Gov. Kathy Hochul says James will follow the facts. These are allegations, not findings, and no court has ruled. A judge hears arguments Oct. 29 on one challenge. If I posted opinions about a case before taking the engagement, I'd expect to be struck from it, and I'd deserve it.
The judges have a fair answer. Schiltz says a February advisory opinion from the Judicial Conference's ethics committee lets judges speak about the rule of law and judicial independence, and Minnesota's federal bench says the interviews stayed within the rules. Schiltz also reported 96 instances of ICE disobeying directives in 74 cases. The code itself says it is not meant for tactical advantage. When DOJ went after Judge James Boasberg over remarks at a closed-door judges' meeting, Chief Judge Jeffrey Sutton, a Bush appointee, dismissed the complaint. Ethics experts expect DOJ to lose its bid to sideline Schiltz and Tunheim.
But the same advisory opinion warns judges against commenting on pending cases or speaking in ways that call their impartiality into question. Defending the courts in general is one thing. Telling a reporter that a government ignoring court orders invites anarchy or authoritarianism, then hearing that government's denaturalization case, is another. DOJ argues that a judge who has taken sides on enforcement can't preside over its largest denaturalization effort. Whether those remarks reach a terror-support case or an election-fraud prosecution is a question the judges should answer on the record.
The procedure has its own problem. Schiltz and Tunheim will decide the motions themselves. I wouldn't let a client audit its own books, and I'm not sure a judge should grade its own impartiality. DOJ hasn't helped its cause either. Attorney General Todd Blanche announced the complaint at a press conference, an odd way to object to judges talking to reporters.
Three changes would help. Judges should speak through written opinions in active cases involving the government and leave interviews to law professors. The Judicial Conference should draw a brighter line between defending the courts and characterizing a litigant. Recusal motions that turn on a judge's own words should go to a different judge as a matter of course. Congress holds the removal power, and it takes a two-thirds Senate vote reserved historically for serious misconduct. Judges who can't stay impartial should recuse. Those who won't answer to Article I.
I coach youth sports. Picture a referee who tells a reporter before kickoff what they think of the home team, then works the game. Aristotle called the judge "a sort of animate justice." People accept verdicts they dislike because they believe no thumb sat on the scale. Judges who want that trust can earn it the way I do, by passing the conflicts check and keeping their opinions to themselves until the case is over.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He writes about issues in finance, constitutional law, national security, human nature, and public policy.