Attempting to Hold a Miscreant U.S. Federal Judge Accountable Is An Exercise in Futility

The Honorable Carl J. Barbier: A Case Study

BACKGROUND

There are four ways to attempt to hold a miscreant U.S. federal judge accountable:

(1) File a civil lawsuit against the corrupt federal judge;

(2) File a Complaint of Judicial Misconduct against the miscreant federal judge;

(3) File a proposed impeachment resolution with the U.S. House of Representatives; and

(4) File material related to the misconduct of the U.S. federal judge with the U.S. Department of Justice or the Federal Bureau of Investigation.

I. File a Civil Lawsuit Against the Corrupt Federal Judge

The U.S. Supreme Court noted that there are only two incidents where absolute judicial immunity does not apply: (1) where the actions of the judge are not considered to be judicial acts; and (2) where the judge acts in a complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9 (1991).

A judge presiding over a multidistrict litigation (MDL) case does not have absolute judicial immunity because:

(1) Multidistrict litigation is unconstitutional. MDL involves no case or controversy. MDL infringes individual plaintiffs’ procedural due process rights. In MDL, the judge, lead counsel, Plaintiffs’ Steering Committee (PSC) attorneys/dealmakers, and the defendant(s) are not adversaries. They are cohorts expeditiously seeking judicial efficiency and the common objectives of closure, limited liability, and profit.

(2) In MDL, the presiding judge acts in the clear absence of all jurisdiction because he exceeds the authority Congress granted to MDL judges.

A. The Civil RICO Lawsuit Filed Against Judge Barbier, et al

Judge Barbier does not have absolute judicial immunity in MDL No. 2179. (See Donovan v. Barbier, et al. Complaint, Pgs. 26 to 30).

On November 5, 2020, Donovan files a civil RICO complaint (Donovan v. Barbier, et al.) against Judge Barbier (the MDL No. 2179 transferee judge), co-liaison counsel, and two fund administrators on behalf of his business, himself, and those parties who were injured as a result of the tortious conduct of the RICO MDL No. 2179 defendants and who are not able to assert their rights because they have been denied access to the courts. Donovan files this lawsuit because he believes the U.S. federal justice system is not a sanctuary for the JPML and MDL judges to use for the purpose of carrying out their own massive, sophisticated, nefarious protection racket in the name of “judicially-efficient” MDL and to hold the RICO MDL No. 2179 defendants responsible for their “Eight-Step” fraudulent scheme which limits the liability of BP and turns MDL No. 2179 into “the MDL No. 2179 Enterprise.” Justice for the BP oil well blowout victims was never a consideration. As set forth in the complaint, the ongoing injuries to the plaintiffs caused by the tortious conduct of the RICO MDL No. 2179 defendants far exceeds the damages resulting directly from the BP oil well blowout.

This Complaint was filed after a careful consideration of context, that is, the entire course of judicial proceedings, rather than isolated incidents. Indeed, it was only after the benefit of hindsight developed over a period of more than ten years of representing plaintiffs in MDL No. 2179 that Donovan realized this Civil RICO Complaint was justified and appropriate.

On November 23, 2020, before Donovan even presents a summons to the clerk for signature and seal, the JPML files a Conditional Transfer Order (CTO-140) for the purpose of initiating the transfer of the civil RICO complaint from the U.S. District Court for the Middle District of Florida to the U.S. District Court for the Eastern District of Louisiana.

On February 4, 2021, the JPML issues a Transfer Order transferring the civil RICO complaint to MDL No. 2179 and assigns the case to the Honorable Carl J. Barbier for the sole purpose of allowing him to promptly dismiss the case with prejudice under Louisiana law. The JPML ensured Judge Barbier and his Lead Counsel would not be held accountable.

The civil RICO complaint hit a judicially-sensitive nerve. The JPML’s concern was justified. If Donovan v. Barbier, et al. was allowed to proceed, the entire protection racket “house of cards” could come tumbling down. The manner in which the JPML and MDL judges have been allowed to run a protection racket, sanctioned by the Chief Justice of the United States, makes virtually every MDL a potential “MDL Enterprise.” CTO-140 was filed by the JPML to make Donovan v. Barbier, et al. disappear as expeditiously as possible.

II. File a Complaint of Judicial Misconduct Against the Miscreant Federal Judge

Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct. (28 U.S. Code § 351).

The complaint of judicial misconduct is considered confidential by the court, the chief judge’s review of the complaint is conducted in secret behind closed doors, and information about the complaint and attached exhibits must not be publicly disclosed by any judge or judicial employee, or by any person who records or transcribes testimony. As a result of this lack of transparency, dozens of misconduct complaints could be filed against a U.S. district court judge without the public ever knowing.

In an unintended moment of candor Justice Gorsuch explains why corrupt federal judges are never held accountable. In February 2017, Judge Neil Gorsuch made the following comment to Nebraska Republican Senator Ben Sasse in response to President Trump‘s anti-judiciary attacks: “Any attack on brothers and sisters of the robe is an attack on all judges.”

It is clear that a federal judge, who desires to maintain the prestige of the bench and does not want to alienate his colleagues, would consider any complaint of misconduct or impeachment proceeding initiated against a fellow brother or sister of the robe by an outside party to be an attack on all judges. On September 26, 2019, Bloomberg Law published an article titled, “Judges Policing Judges: True Disciplinary Actions Are Rare,” wherein the data from the Administrative Offices of the U.S. Courts for judicial disciplinary actions taken from 2010 to 2018 supports this conclusion (10,957 complaints of judicial misconduct were terminated, 121 miscreant judges were allowed to retire thereby terminating an investigation of the complaint by their peers, 33 complaints resulted in the subject judge receiving a meaningless judicial slap on the wrist). Although 121 subject judges were allowed to retire with full pensions, not a single complaint of judicial misconduct was referred to the Judicial Conference to determine whether to certify the matter to Congress, which would then decide whether to initiate impeachment proceedings. Allowing a miscreant judge to retire without punishment and still receive a full pension does not protect the integrity of the judicial branch and uphold the public trust.

A. The Complaint of Judicial Conduct Filed Against Judge Barbier  

On August 23, 2021, Donovan files a Complaint of Judicial Misconduct against Judge Carl J. Barbier with the clerk of the United States Court of Appeals for the Fifth Circuit. Donovan files this complaint pursuant to the Judicial Conduct and Disability Act, 28 U.S.C. § 351 - 364. This judicial complaint arises out of Judge Barbier’s misconduct in the six cases listed in the complaint. Donovan further alleges Judge Barbier, in his capacity as the presiding judge over these cases, has violated the Canons of the Code of Conduct for United States Judges, namely Canons 2A, 3 and 3B(3). The specifics referred to in this complaint are supported in the record and are set forth in the supporting exhibits.

Although the evidence of Judge Barbier’s misconduct is clear and convincing, the Chief United States Circuit Judge dismissed the complaint based on nothing more than empty air. She did not review the court documents, exhibits, or interview the witnesses.

III. File a Proposed Impeachment Resolution with the U.S. House of Representatives

In the House Report impeaching G. Thomas Porteous, Jr., judge of the United States District Court for the Eastern District of Louisiana, The Committee on the Judiciary emphasized financial entanglements by a judge with persons having business before the court is well recognized as constituting the “gravest sort” of judicial misconduct. This type of conduct violates Federal law as well as several of the Canons of Judicial Ethics that are designed to ensure that parties receive a fair trial by an impartial judge - a judge that is neither soliciting nor accepting things of value from attorneys who are appearing in front of him.

Any person alleging that a federal judge has engaged in conduct which is reasonably likely to result in a substantial and widespread lowering of public confidence in the integrity and impartiality of the judiciary may file material related to the conduct of the federal judge with the U.S. House of Representatives. Material related to the conduct of a federal judge might reach the House and be referred to committee prior to the adoption of a resolution directing a committee to conduct an investigation. Historically, this has included petitions and materials from citizens.

The House’s role is not to punish a federal judge for bad behavior, but simply to determine whether articles of impeachment should be brought. Under our Constitution, the American people must look to the Congress to protect them from persons unfit to hold high office because of serious misconduct that has violated the public trust. Where, as in the case of Judge Barbier, the evidence overwhelmingly establishes that a federal judge has committed impeachable offenses, the House’s duty requires it to bring articles of impeachment and to try him before the United States Senate.

The House has impeached 19 individuals: 15 federal judges, one Senator, one Cabinet member, and two Presidents. The Senate has conducted 16 full impeachment trials. Of these, eight individuals - all federal judges - were convicted by the Senate. (John Pickering (1804); West H. Humphreys (1862); Robert W. Archbald (1913); Halsted Ritter (1936); Harry E. Claiborne (1986); Alcee Hastings (1989); Walter L. Nixon, Jr. (1989); G. Thomas Porteous (2010)). (Report of the Impeachment Trial Committee on the Articles Against Judge G. Thomas Porteous, Jr. 1 n.1, S. Rept. 111-347 (2010)).

In sum, since 1803, the House of Representatives has impeached only 15 judges and only 8 of those impeachments were followed by convictions in the Senate. Justice Samuel Chase is the only Supreme Court Justice the House has impeached, and in 1805 the Senate acquitted Chase.

A. The Proposed Resolution to Impeach Judge Barbier  

Donovan sent a proposed resolution in support of the impeachment of Judge Barbier for high crimes and misdemeanors to the U.S. House of Representatives. The resolution has been forwarded to the House Committee on the Judiciary for review.

Although Judge Barbier has engaged in conduct which might constitute one or more grounds for impeachment under Article I of the Constitution, there are two challenges to initiating an impeachment process against a federal judge.

The first problem is political in nature. For example, a Democratic U.S. Representative is hesitant to initiate an impeachment against a federal judge who was nominated by a Democratic President.

The second problem is that most U.S. Representatives believe initiating an impeachment process against a federal judge is an exercise in futility. “I retire,” is all the subject federal judge needs to say in order to terminate the investigation and evade punishment under 28 U.S.C. § 351-364 or impeachment by the Congress. Moreover, if he or she retires at age 65 or later, a pension for life is guaranteed.

Nonetheless, following an investigation into the conduct of U.S. District Court Judge Carl Joseph Barbier, as set forth in Articles I through VI of the proposed resolution, the House Committee on the Judiciary, in conjunction with its duly authorized Task Force on Judicial Impeachment, should conclude that Judge Barbier has engaged in conduct which is reasonably likely to result in a substantial and widespread lowering of public confidence in the integrity and impartiality of the judiciary. Accordingly, impeachment is warranted.

IV. File Material Related to the Misconduct of a U.S. Federal Judge with the U.S. Department of Justice or the Federal Bureau of Investigation

Even though aspects of a federal judge’s conduct may appear to support a criminal prosecution, the DOJ faces numerous practical obstacles that would necessarily impact its considerations as to whether prosecution was in order for certain categories of conduct. One problem in particular involves the statute of limitations - a potentially insurmountable hurdle in a criminal prosecution, but not a bar to impeachment. For example, the last federal judge to be impeached and removed from office was Judge G. Thomas Porteous, Jr. in 2010. Although impeached, some of Judge Porteous’s most corrupt conduct was time-barred by the statute of limitations.

It is important to note that in Donovan v. Barbier, et al., a civil RICO complaint, the statutes of limitations are tolled and the defendants are estopped from asserting statutes of limitations as defenses. (See Donovan v. Barbier, et al. Complaint, Pgs. 30 to 33).

A. An FBI Investigation of Judge Barbier’s Conduct May be Required

The last federal judge to be impeached and removed from office was Judge G. Thomas Porteous, Jr. in 2010 at the age of 64. Similar to Judge Barbier, Judge Porteous was a judge of the U.S. District Court for the Eastern District of Louisiana (“EDLA”).

Regrettably, judicial corruption has been allowed to thrive in EDLA.

(1) The “Wrinkled Robe” Investigation

Judge Porteous was impeached as a result of information obtained during the FBI’s “Wrinkled Robe” investigation into corruption in connection with the relationship of certain bail bondsmen (“the Marcottes”) to State judges of the 24th Judicial District Court of Louisiana, where Judge Porteous had presided prior to becoming a federal judge. Judge Porteous accepted numerous things of value, including expensive meals, drinks, hunting, fishing, gambling trips, a trip to Las Vegas, home repairs, and car repairs, for his personal use and benefit, while at the same time taking official actions that benefitted the Marcottes. These official actions by Judge Porteous included, while on the State bench, setting, reducing, and splitting bonds as requested by the Marcottes, and improperly setting aside or expunging felony convictions for two Marcotte employees. Porteous also engaged in a corrupt scheme with attorneys, Jacob Amato, Jr., and Robert Creely, whereby Porteous appointed Amato's law partner as a “curator” in hundreds of cases and thereafter requested and accepted from Amato & Creely a portion of the curatorship fees which had been paid to the firm. During the period of this scheme, the fees received by Amato & Creely amounted to approximately $40,000, and the amounts paid by Amato & Creely to Judge Porteous amounted to approximately $20,000. Judge Porteous also made intentionally misleading statements at the recusal hearing intended to minimize the extent of his personal relationship with the two attorneys. The pattern of illegal activity occurred for at least 8 years (i.e., from 1993 to 2001).

Compared to the conduct of Judge Barbier in MDL No. 2179, Judge Porteous was a judicial saint.

(2) The Corrupt Relationship Between Judge Barbier, the MDL No. 2179 Lead Counsel, and Fund Administrators

Beginning in or about August 2010 and continuing through the present, Judge Barbier, knowingly and intentionally colluded with the MDL No. 2179 lead counsel and fund administrators to conceive, develop, and/or facilitate a sophisticated and deceptive “Eight-Step” fraudulent scheme to maximize judicial efficiency and/or their compensation in exchange for limiting the liability of BP. Justice for the plaintiffs/claimants was never a consideration.

(3) The Corrupt Relationship Between Judge Barbier and Mikal C. Watts

On May 19, 1998, Judge Barbier was nominated by President Bill Clinton to a seat on the U.S. District Court for the Eastern District of Louisiana.

On October 8, 2010, Judge Barbier, while presiding as transferee judge over the BP oil well blowout of 2010 multidistrict litigation (In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179), appointed Mikal C. Watts as one of the initial fifteen members to the MDL No. 2179 Plaintiffs’ Steering Committee (“PSC”). Watts was appointed to the PSC based largely on the fact that he claimed to have more than 40,000 clients. In reality, these 40,000 clients did not exist.

Mikal C. Watts is well-known as a mega-donor to the Democratic Party.

As alleged in Article I of the proposed impeachment resolution, Judge Barbier committed a politically-motivated fraud on the process of allocating common benefit fees in MDL No. 2179 by awarding $18,290,494.18 to Mikal C. Watts even though Judge Barbier knew that Watts had been indicted for falsely claiming to represent 40,000 oil spill claimants in MDL No. 2179.

In sum, the question is simple. Why did Judge Barbier award $18,290,494.18 in common benefit fees to Mikal Watts? It certainly wasn’t for legal services rendered. A reasonable person may justifiably conclude that Judge Barbier’s award of $18,290,494.18 to Watts was either a poorly disguised political donation to the Democratic Party or part of another nefarious scheme.

Following an investigation, similar to “Wrinkled Robe,” into the conduct of U.S. District Court Judge Carl Joseph Barbier, the MDL No. 2179 lead counsel, fund administrators, and Mikal C. Watts, by any reasonable interpretation of the evidence, the FBI should conclude that Judge Barbier has engaged in conduct which warrants charging Judge Barbier with violations of criminal law relating to judicial corruption.