Question Garland

House committee plans to question Garland

The Supreme Court nominee recused himself from a complaint against a fellow judge accused of rape.

By Rachael Bade and Josh Gerstein

President Barack Obama’s Supreme Court nominee, Merrick Garland, recused himself from a recent judicial complaint against a judge under his purview who was accused of raping a 16-year-old murder witness decades ago.

But now a House committee is preparing to ask questions about the timeline of who in the federal court bureaucracy and at the Justice Department knew about the allegations against Richard Roberts, the retiring chief judge of U.S. District Court in Washington, and when they knew it.

Garland is likely to be among those questioned, a source on the committee said. However, a spokeswoman for Garland told Politico on Tuesday that he wasn’t aware of the allegations against Roberts until a little more than a week ago.

Just days before he was nominated for the high court vacancy, Garland, chief judge of the United States Court of Appeals for the District of Columbia Circuit, removed himself from any involvement in a judicial complaint filed against Roberts. Garland and Roberts are longtime colleagues.

Utah native Terry Mitchell on March 16 publicly accused Roberts of raping her multiple times during trial preparations when she served as a witness in a serial murder case 35 years ago. Roberts, then 28, prosecuted and won that trial as a civil rights attorney for the Justice Department.

Roberts, through his attorney, last week called the allegations “categorically false,” while acknowledging an intimate, consensual relationship with Mitchell at the time. Roberts retired from the court the same day.

Mitchell had taken her allegations to the Utah attorney general in 2014, whose office picked an ex-federal judge to investigate the matter. In August 2015, the judge, Paul Cassell, now a professor of law at the University of Utah, found “significant evidence that Mr. Roberts did indeed engage in sexual relations with Ms. Jackson-Mitchell on multiple occasions under the guise of ‘witness preparation.’”

Cassell said it would not be feasible to prosecute Roberts for rape or statutory rape, but he recommended referring the matter for investigation, noting that the case raised ethical and constitutional issues.

The Utah attorney general’s office referred that report to the D.C. Circuit Court in a judicial misconduct complaint dated March 7.

“There were obvious concerns due to the ages of the individuals and the fact that a relationship was alleged to have occurred between a witness and a prosecutor,” the letter read, summarizing what the office did to investigate the allegation. “It was suggested we contact you to file a misconduct complaint.”

As leader of the circuit court, Garland would have been in a position to decide, along with several other judges on the Judicial Council of the D.C. Circuit, whether to reprimand Roberts. Or Garland could have sought to punt the matter to another circuit. But since Roberts was a longtime colleague, according to a court spokesperson, Garland took himself out of any decision.

“Chief Judge Garland became aware of the conduct at issue when the complaint was received on March 11,” the D.C. Circuit said in statement. “He recused himself that day, consistent with Title 28, United States Code, Sections 351-364 and the applicable rules of the Judicial Conference, because of his longstanding professional relationship with Judge Roberts.”

A spokeswoman said Garland and Roberts had worked together at the Justice Department and in the U.S. Attorney’s Office in Washington, before serving together as federal judges for nearly two decades. In at least one instance, Garland and Roberts sat in judgment of another jurist facing ethical complaints, 5th Circuit Judge Edith Jones.

While interviews on the Roberts matter had been going on behind closed doors for months — Congress also knew about it before it became public — news of the accusation came to light only on March 16, when Mitchell filed suit in a Utah federal court against Roberts for sexual assault.

Roberts announced his retirement that day.

On March 18, the Judicial Council of the D.C. Circuit dismissed the Utah attorney general’s complaint against Roberts in a document that doesn’t name Roberts by name but refers to a judge who retired on March 16. Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the D.C. Circuit ruled in an “acting” capacity to dismiss the original complaint because “action on the complaint is no longer necessary because of intervening events.” Henderson was referring to Roberts’ retirement for medical reasons, which she approved after Garland had recused himself.

Roberts is slated to receive full retirement benefits awarded to a judge, including salary and health care.

In addition to the ongoing litigation in Utah, the House Oversight Committee, led by Chairman Jason Chaffetz (R-Utah), now says it plans to seek answers about when the court and the Justice Department first learned of the allegations and what they did in response, according to a source on the panel. No hearings have been scheduled yet.

Deputy Attorney General Sally Yates told reporters Monday that a complaint sent to the Justice Department’s Office of Professional Responsibility had been received by that office. However, she declined to say what action DOJ could take against a former employee like Roberts. Sometimes such cases result in referrals to bar authorities.