Did Emil Bove violate judicial ethics code with appearance at Trump rally?

WASHINGTON (CN) — Third Circuit Judge Emil Bove may have violated the federal judiciary’s ethics code when he attended a politically-charged rally held this week by President Donald Trump, legal experts and lawmakers said Wednesday.

And experts said that the controversial jurist’s appearance at Trump’s event — in which the president addressed inflation and flung insults about immigrants from what he referred to as “shithole countries” — adds to a trend of nominally impartial federal judges who have increasingly embroiled themselves in partisan politics.

Bove, a former Justice Department official confirmed to the appellate bench over the summer, was spotted in the audience at Trump’s speech, held Tuesday evening at the Mount Airy Casino Resort in Mount Pocono, Pennsylvania. The judge told reporters he was there “as a citizen coming to watch the president speak.”

But Bove’s appearance at the event, which took on the aura of a political rally, instantly raised questions about whether he had run afoul of ethics guidelines that bind federal judges.

“It’s kind of startling to me that he would decide this was an OK thing for him to do,” said Charles Geyh, a law professor at Indiana University’s Maurer School of Law. “It’s almost as though he is making a statement by doing it, because he can’t have been oblivious to the implications of attending a rally that can only be described as a political rally for a president with whom he worked.”

According to Canon 2 of the U.S. Courts Judicial Code of Conduct, judges should “avoid impropriety and the appearance of impropriety in all activities.” The standards define impropriety as actions that “reasonable minds” would conclude threaten a jurist’s impartiality. Canon 5 of the code of conduct holds that a judge should also refrain from political activity, such as campaign events or political speeches in support of a candidate.

The prohibition on political activity also bars “any other political activity” except for certain “extrajudicial activities,” such as teaching at a law school or attending fundraising events held by law-related organizations.

Geyh pointed out that the process for determining whether a judge has violated the canons is fact driven, and he stopped short of making a definitive statement as to whether Bove’s attendance at the Pennsylvania Trump rally ran afoul of those guidelines. But he said there was a “serious question to be raised” about whether the Third Circuit judge had violated the code of conduct.

“In the context of attending a political rally — and that couldn’t have been anything other than a political rally in support of the president — it sure does seem to be the kind of political activity that judges are admonished to avoid if they can manage it,” said Geyh.

The professor added that the judicial code of conduct also refers to judges as “acting at all times,” both on and off the bench.

“The rule is so basic,” said Stephen Gillers, a professor at New York University School of Law. “I would have assumed that Bove would have learned it in new judges’ school, but maybe he was out that day. I suppose he thought that just joining the crowd at the rally was not political, but of course it is.”

Gillers added that “no doubt” the chief judge of the Third Circuit will need to resolve complaints against Bove about his conduct.

And Carl Tobias, chair of the University of Richmond School of Law, pointed to federal statute governing conflicts of interest which he said “expresses concern about undermining public trust in an impartial judiciary.”

“Bove’s attendance in a front-row seat at the political rally raises concerns about judicial independence,” he said.

Judicial reform advocates have already filed a formal complaint against Bove for attending Trump’s Tuesday rally. Reform-minded organization Fix the Court on Wednesday told Third Circuit Chief Judge Michael Chagares that it “should have been obvious” to Bove that the rally was a “highly charged, highly political event that no federal judge should have been within shouting distance of.”

In an interview Wednesday, Fix the Court director Gabe Roth told Courthouse News he couldn’t think of another sitting federal judge who had attended was “in essence was a political pep rally.”

“You’ve got to take off your team hat once you don your robes, and that’s clearly the opposite of what’s going on here,” he said.

On Capitol Hill, many lawmakers appeared to be finding out about Bove’s attendance at the rally for the first time on Wednesday. But Democrats, many of whom had raised questions about the judge’s closeness to the president during his confirmation process, were quick to slam his appearance.

Senate Minority Whip Dick Durbin, the top Democrat on the Senate Judiciary Committee, said Bove’s conduct was “outrageous.”

“Mr. Bove is a loyalist to President Trump, but I hoped that after he received this appointment to the federal bench at the second-highest court in the land, he would show better judgment,” the Illinois Democrat told Courthouse News.

Asked whether Senate Democrats would act against Bove, Durbin said he was still thinking about it.

Connecticut Senator Richard Blumenthal said he hadn’t heard about Bove attending the rally but the “norm is that federal judges should stay away from any partisan or political event.” He added that the Trump administration had double standards “for almost everything.”

Asked about Bove’s conduct by Courthouse News, Rhode Island Senator Sheldon Whitehouse simply replied: “Least surprising thing ever.”

Republicans, however, were more tight lipped about whether Bove should have made an appearance at Trump’s speech. Iowa Senator Chuck Grassley, chairman of the Senate Judiciary Committee, told reporters that he would need to check with the judiciary’s administrative office before he offered a comment. Louisiana Senator John Kennedy declined to comment. House Speaker Mike Johnson told Courthouse News Wednesday morning he hadn’t “heard anything” about Bove attending the Trump rally.

Missouri Senator Josh Hawley, meanwhile, drew a distinction between federal judges who attend events hosted by political campaigns and ones held by the White House.

“If a campaign hosts a dinner, a judge can’t go do that,” he said. “That’s a gift from a campaign. I think an event by a public official is fine. It’s within his discretion.” Hawley added that judges should be “mindful” of the appearance of impropriety but reiterated it was at the discretion of the jurists themselves.

And he argued that Bove’s close personal connection with the president “cuts in favor of him.”

Geyh, though, was not convinced by Hawley’s argument. “I think he’s completely wrong,” he said.

The professor pointed out that the judicial canons direct judges to act at all times in a manner that promotes public confidence in the courts’ impartiality. “If you were looking at the hundreds of people out there paying attention to this event, how many of them are going to be saying, ‘Who is officially the sponsor of this rally?’”

Geyh argued that Hawley was pointing to a “technical distinction” under the judicial canons governing political activity but countered that the rally was “indistinguishable” from those held when Trump was a candidate.

But beyond the ethical implications of Bove’s appearance at this week’s rally, Geyh also stressed that his conduct pointed to a broader and more concerning trend of the blurring lines between the judiciary and partisan politics.

“The norms within the judiciary have been that as soon as you’re appointed, you step back from politics — you just do,” he said. “But if you are going out of your way to preserve a partisan connection by showing up for rallies, it’s kind of a new normal for some judges.”

And it’s not just Bove, Geyh said. He pointed to the pushback from some federal judges after the U.S. Judicial Conference in 2020 suggested that its guidelines block jurists from affiliating with the conservative Federalist Society as one example.

“We’re seeing judges who are increasingly willing to be overly partisan in their orientation, which is a new development, and I think it’s at the heart and soul of the declining legitimacy of the judiciary,” said Geyh.

The White House, for its part, has forcefully rejected the implication that Bove’s attendance at Tuesday’s rally was a partisan move or that it violated ethics guidelines. Asked for comment on Tuesday night, the Trump administration pointed Courthouse News to an X post from White House deputy communications director Steven Cheung which accused reporters of “pearl-clutching.”

“An American citizen is at an event listening to the president of the United States speak,” he wrote. “In your world, you’d rather give rights to illegal criminals over Americans.”

Bove has been a controversial figure since he was nominated to the Third Circuit earlier this year. He faced sharp questions from Democrats during his confirmation process about his political loyalty to the president but strongly rejected them.

The now-federal judge was also scrutinized for his role in mass deportation operations coordinated with the Justice Department while he was serving as the agency’s acting deputy attorney general. U.S. District Judge James Boasberg this week demanded that a whistleblower who claimed Bove suggested the Justice Department ignore court orders related to deportations testify in contempt proceedings against the agency.

Follow @BenjaminSWeiss