Emil Bove, who recently was confirmed in a 50-49 Senate vote to be a judge on the US Court of Appeals for the Third Circuit, can and legally must be disqualified from hearing cases involving challenges to President Donald Trump’s actions and policies.
Trump is clearly counting on Bove’s personal loyalty to rule in his favor in any cases that come before Bove. His expectation was confirmed when he posted on Truth Social: “He will end the Weaponization of Justice, restore the Rule of Law, and do anything else that is necessary to MAKE AMERICA GREAT AGAIN. Emil Bove will never let you down.”
So much for an impartial court system.
But Trump may have been too clever by half. Federal law requires judges who have a personal relationship with a party to recuse themselves from cases. The president may have used a judicial appointment slot to appoint an appeals court judge who will be barred from hearing Trump-related cases, just the opposite of what he wanted.
Justices and judges whose impartiality might “reasonably be questioned” must disqualify themselves from proceedings, under 28 U.S. Code Sec. 455. The code includes a litany of reasons a judge must be disqualified, including conflicts as vague as having “personal bias” to specific instances of serving as an attorney for one of the parties or expressing a public opinion about the merits of the case they are hearing.
Additionally, the US Supreme Court has been emphatic that due process of law, guaranteed by the Constitution, requires an impartial decision-maker.
Bove was previously Trump’s private personal defense attorney in multiple criminal cases. In People v. Trump, Bove unsuccessfully defended Trump against 34 felony counts of falsifying business records as hush money to porn star Stormy Daniels.
Trump then hand-picked Bove as principal deputy attorney general, a role in which he did Trump’s bidding at the Department of Justice. According to a high-level whistleblower, Bove told subordinate DOJ lawyers they may need to tell courts “fuck you” if they don’t like courts’ decisions and instructed them to ignore court orders during a contentious legal battle in an immigration case. Bove has denied the accusations.
At the DOJ, Bove sent memos to the acting FBI director instructing the FBI to “effectuate the termination” of FBI employees involved in investigating and prosecuting Jan. 6 insurrectionists and directed the firing of numerous line prosecutors working on the cases.
It is all but self-evident that Bove’s personal and professional loyalty to Trump demonstrates that his “impartiality might reasonably be questioned” when it comes to matters involving Trump.
Bove has clearly shown that he has a personal bias or prejudice in favor of the president. Keep in mind that to be disqualified, Bove’s impartiality must only “reasonably be questioned,” not necessarily proven beyond a reasonable doubt. And there is little doubt Bove’s loyalty to Trump, both as his personal defense attorney and as a DOJ official, at least reasonably call his impartiality into question.
Recusal isn’t optional. Both state and federal laws provide that judges are required to recuse themselves if grounds exist to do so.
A judge may be subject to punishment for not recusing themselves, depending on the circumstances. If proper grounds for recusal did exist, and the judge was aware, there may be penalties levied against the judge for not doing so. Wrongful failure to recuse may also be grounds for appeal which could result in the case being dismissed or remanded for a new trial. If a judge refuses a recusal request, a party may move to have him recused.
Because it’s unlikely Bove will agree to recusal, parties challenging Trump may need to regularly move for Bove’s recusal from cases involving Trump, citing reasonable questions as to Bove’s impartiality.
Trump may have twisted the arms of 50 Republican senators to get Bove confirmed. But Bove is likely to be required to recuse himself from most cases related to Trump that come before him on the Third Circuit. In the case of Bove, Trump’s efforts to stack the federal judiciary with MAGA loyalists may not work out as he planned.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
Author Information
Erwin Chemerinsky is the dean and a professor at UC Berkeley School of law.
Miles Mogulescu is an attorney, Oscar-nominated documentary filmmaker, and former senior vice president at MGM/UA.
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