Recusal Motion Denied

Judge Beryl Howell of the United States District Court for the District of Columbia has denied the defendants recusal motion in the Perkins Coie litigation

Though this adage is commonplace, and the tactic overused, it is called to mind by defendants’ pending motion to disqualify this Court: “When you can’t attack the message, attack the messenger.” Defendants filed this motion less than two weeks after this Court issued a temporary restraining order barring defendants from enforcing against plaintiff Perkins Coie LLP three of the five sections of Executive Order 14230 (“EO 14230”), issued by President Donald J. Trump on March 6, 2025, 90 Fed. Reg. 11781 (Mar. 11, 2025), targeting the law firm with punitive measures due to the law firm’s representation of clients whom the President dislikes or who sought relief through litigation that the President opposes. When the U.S. Department of Justice engages in this rhetorical strategy of ad hominem attack, the stakes become much larger than only the reputation of the targeted federal judge. This strategy is designed to impugn the integrity of the federal judicial system and blame any loss on the decision-maker rather than fallacies in the substantive legal arguments presented.

The opportunity presented by the defendants’ motion, which invokes 28 U.S.C. § 455(a) to disqualify this Court, is welcomed to set the record straight, because facts matter. To begin, this Court agrees wholeheartedly with defendants that “[f]air proceedings free from any suggestion of impartiality are essential to the integrity of our country’s judiciary.” Defendants’ Mot. to 1 Disqualify Judge Beryl Howell (“Defs.’ Mot.”) at 1, ECF No. 34. No judicial ruling exists in a vacuum but rests on the facts presented in “Cases” or “Controversies” necessary for the exercise of a federal court’s jurisdiction, U.S. Const. art. III, § 2, and every litigating party deserves a fair and impartial hearing to determine both what the material facts are and how the law best applies to those facts. That fundamental promise, however, does not entitle any party—not even those with the power and prestige of the President of the United States or a federal agency—to demand adherence to their own version of the facts and preferred legal outcome. “Factfinding,” after all, “is the basic responsibility of district courts,” Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) (citation omitted, alteration accepted), and “[i]t is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

This reminder about the role of the federal courts seems necessary given the opening line in defendants’ pending motion, expressing “the need to curtail ongoing improper encroachments of President Trump’s Executive Power playing out around the country.” Defs.’ Mot. at 1. This line, which sounds like a talking point from a member of Congress rather than a legal brief from the United States Department of Justice, has no citation to any legal authority for the simple reason that the notion expressed reflects a grave misapprehension of our constitutional order. Adjudicating whether an Executive Branch exercise of power is legal, or not, is actually the job of the federal courts, and not of the President or the Department of Justice, though vigorous and rigorous defense of executive actions is both expected and helpful to the courts in resolving legal issues. Defendants then proceed, in the second line of their pending motion, to describe as “meritless” every lawsuit challenging the President’s “agenda that the American people elected him to carry out.” Id. This blanket denigration of the merits of all the lawsuits filed across the country certainly reflects palpable frustration with court rulings issued to pause, temper, or reverse Trump Administration actions, but this is a testament to the fact that this country has an independent judiciary that adheres to an impartial adjudication process, without being swayed merely because the federal government appears on one side of a case and the President wishes a particular result.

While obviously not able to speak to the merits of all the cases “around the country” provoking defendants’ frustration, a quick survey of the cases over which this Court is presiding challenging the current Administration’s actions show that, contrary to the defendants’ posturing, the outcomes have followed the facts and the law. When the facts and applicable law appear likely to favor the actions taken by the current administration, for example, this Court has ruled in the government’s favor. See, e.g., Min. Order, U.S. Inst. of Peace v. Jackson, No. 25-cv-804-BAH (D.D.C. Mar. 19, 2025) (denying motion for a temporary restraining order filed by plaintiffs in a case against President Trump and ten other Executive Branch defendants for terminating ten board members and the acting president of the U.S. Institute of Peace). In another case, even the government conceded that binding Supreme Court precedent required the legal result reached by this Court if the facts were found to be sufficiently similar to that precedent, which the Court found they were. See Wilcox v. Trump, — F. Supp. 3d –, 2025 WL 720914, at *10 (D.D.C. Mar. 6, 2025); id. at *1 (“Humphrey’s Executor remains binding on this Court, as defendants rightly acknowledge.” (citing Defs.’ Opp’n at 8 n.2)); Defs.’ Cross-Mot. for Summ. J. & Opp’n to Pls.’ Mot. for Summ. J. at 8 n.2, Wilcox v. Trump, No. 25-cv-334, ECF No. 23 (D.D.C.) (filed Feb. 21, 2025) (“[T]he government acknowledges that whatever little remains of Humphrey’s Executor is binding on this Court until overturned by the Supreme Court.”). Thus, in the latter case, the action taken by the President was declared null and void, since the facts and applicable law entitled the plaintiff to a favorable judgment. The neutral administration of justice required no less.

The D.C. Circuit has warned that consideration of a motion for disqualification “is never taken lightly,” since “[i]n the wrong hands, a disqualification motion is a procedural weapon” that, “[i]f supported only by rumor, speculation, or innuendo,” might be used, among other nefarious purposes, as “a means to tarnish the reputation of a federal judge,” United States v. Microsoft Corp., 253 F.3d 34, 108 (D.C. Cir. 2001) (en banc) (per curiam), or to “reduce[] the judicial process to little more than a skirmish in a partisan battle,” In re Flynn, 973 F.3d 74, 85 (D.C. Cir. 2020) (en banc) (per curiam) (Griffith, J., concurring). This larger concern about the overall damage to the rule of law and the federal judicial system from the feckless impugning of the decision-making process of individual federal judges has prompted Chief Justice John G. Roberts, Jr., to criticize “regrettabl[e] . . . attempts” by “[p]ublic officials . . . to intimidate judges,” including by “suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations.” John G. Roberts, Jr., 2024 Year End Rep. on the Fed. Judiciary 7 (Dec. 31, 2024), https://perma.cc/QU5A-r9YB.

Here, defendants rely only on “speculation[ and] innuendo” in seeking to get another Judge assigned to preside over this case. The clear absence of any legitimate basis for disqualification requires denial of the pending motion. See, e.g., United States v. Haldeman, 559 F.2d 31, 139 n.360 (D.C. Cir. 1976) (“[I]n assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. . . . Nothing in [§455] should be read to warrant the transformation of a litigant’s fear that a judge may decide a question against him into a ‘reasonable fear’ that the judge will not be impartial.”); Garrett v. Ohio State 4 Univ., 60 F.4th 359, 371 (6th Cir. 2023) (warning of the “significant toll” “exact[ed]” on the judiciary by “needless recusals,” including “facilitat[ing] judge-shopping” (quoting In re U.S., 572 F.3d 301, 308 (7th Cir. 2009))).

(Mike Frisch)