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Warren Wants to Close the Loophole Through Which Brett Kavanaugh and Maryanne Trump Barry Crawled

Kavanaugh ascended to the U.S. Supreme Court and Trump Barry descended from a federal appeals court—moves which enabled them to escape the consequences of their misconduct.

Brett Kavanaugh

Brett Kavanaugh, then-nominee to the U.S. Supreme Court, testifies before the Senate Judiciary Committee on Capitol Hill Sept. 27, 2018. (Photo: Jim Bourg-Pool/Getty Images)

Pray you now, forget and forgive.
— Shakespeare, King Lear

One went up and one went down. Each enjoyed similar benefits as a result of their travels. I refer to Brett Kavanaugh and Maryanne Trump Barry. Brett ascended to the United States Supreme Court and Maryanne descended from the United States Court of Appeals for the Third Circuit. Their travels enabled them to escape the consequences of their misconduct.

Because of his ascension, Brett avoided facing any consequences for claims of sexual misconduct that followed him through his confirmation process, and more pertinently, complaints about his ethical misconduct during his confirmation hearing.

Because of his ascension, Brett avoided facing any consequences for claims of sexual misconduct that followed him through his confirmation process, and more pertinently, complaints about his ethical misconduct during his confirmation hearing.

The misconduct during his confirmation hearing came about because of his inadequately developed sense of propriety that manifested itself when, during the hearing before the Senate Judiciary Committee which was considering his appointment to the United States Supreme Court, he modeled himself after the White House juvenile (who in a recent moment of petulance described himself as having "great and unmatched wisdom"). Equally petulant during his confirmation hearing, Brett screamed and yelled at the committee which was trying to determine whether he was fit to serve on the United States Supreme Court. He said the hearing was "a calculated and orchestrated political hit job ...revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups."

By the time the Senate voted on Brett's confirmation, 83 complaints had been lodged against him with the Committee on Judicial and Disability because of, among other things, his puerile conduct before the senators. After his ascension, the committee said he was no longer subject to the federal judiciary's internal ethics review process. That is because the act does not give the committee the ability to investigate grievances against members of the Supreme Court. Brett is home free for life. So is Maryanne.

Maryanne is the sister and incidental (and probably not unwitting) beneficiary of the illegal conduct of her baby brother, a man whose complete lack of anything bordering on ethical behavior has resulted in his making huge amounts of money through his dishonest and corrupt business practices. His family, including Maryanne, have been the beneficiaries of his corrupt behavior.

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According to a report in the New York Times there were, among other things, many examples of successful tax fraud by the Trumps when dealing with assets owned by their father. The results of that fraud were that the Trump and his siblings made huge amounts of money by cheating the federal government on the estate taxes owed on account of their father's death and undervaluing assets that were transferred to them in order to avoid payment of gift taxes, to give but two examples of their corrupt behavior. Other instances of fraudulent conduct were disclosed at length in the New York Times' investigation.

Following the conclusion of the New York Times investigation, a complaint was filed with the appropriate Judicial Conduct Council by lawyers concerned about [Maryanne's] apparent ethical breaches while a federal judge, as the incidental beneficiary of her baby brother's corrupt behavior.

Notwithstanding her participation in family fraud, Maryanne is not without a sense of propriety. When her baby brother became the president of the United States, Maryanne notified the court that she would no longer be hearing any cases and would relinquish her staff and her chambers. The only benefit she retained following her retirement was her salary. Not only did she remain entitled to her salary following her retirement, but she remained subject to the rules pertaining to judicial conduct that apply to all federal judges except those on the Supreme Court. As a result she could be investigated for perceived misconduct.

Following the conclusion of the New York Times investigation, a complaint was filed with the appropriate Judicial Conduct Council by lawyers concerned about her apparent ethical breaches while a federal judge, as the incidental beneficiary of her baby brother's corrupt behavior. Maryanne did not, it seems, want to wait to find out what the council would conclude as to her participation in family fraud. Instead, she fully retired from the court. That deprived the council of jurisdiction to determine if, in fact, she was subject to any form of discipline because of her involvement in her baby brother's criminal activities. Her descent from the court into the world of everyday mortals was a great result for Maryanne if not for the reputation of the federal judiciary.

Sen. Elizabeth Warren (D-Mass.) has now come up with a plan to put an end to the immunity for consequences of bad behavior by federal judges that now protects them. She wants to close the loophole through which Brett and Maryanne crawled. As she explained: "My plan extends the authority of the Judicial Conference to former judges so that individuals under investigation cannot simply resign from the bench to avoid accountability." She also wants to extend the Code of Conduct for United States Judges to Justices sitting on the Supreme Court. If Sen. Warren's proposals were adopted, Brett–Maryanne results would no longer occur.

He went up, she went down. The American public went nowhere. Neither did the investigations into their misconduct. As the Trump would say: SO SAD.

Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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