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Federal District Court Judge Initiates Complaint Against Himself Over Anti-Obama Email

BY Sarah Lai Stirland | Friday, March 2 2012

A federal district court judge in Montana initiated the process against himself on Thursday for sending out an e-mail to six friends that joked that President Obama's dead mother had sex with a dog. Judge Richard Cebull asked Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals (himself the subject of a former investigation) to start an investigation into the question of whether the act of forwarding the joke constitutes judicial misconduct.

The complaint may have been a savvy pre-emptive move aimed to stem the growth of the controversy as the news of the politically-charged e-mail has blown up in the past few days from being featured in the local papers the Great Falls Tribune and the Billings Gazette to several of the major news outlets in the United States. Various individuals have started online petitions to get the judge to resign, and watchdog group Common Cause on Friday filed a complaint itself with the Ninth Circuit. The group's president also called for the judge's resignation.

In its complaint, the group pointed to the Great Falls Tribune's article as evidence of Cebull's inability to do his job as an impartial judge, since he explained the forwarding of the e-mail not as a racist comment, but as an expression of his "anti-Obama" views.

The e-mail, sent from the judge's office computer, suggested that Obama was conceived as a result of his mother having sex with a dog at a party. The e-mail came with this preface: "Normally I don't send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine."

On Thursday, Common Cause President and CEO Bob Edgar called on the Cebull to resign, saying that he had violated Canon 2 of the Code of Conduct for U.S. Judges, which sets out rules on ethical standards by the U.S. Judicial Conference. The code calls on judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Edgar also suggested that Cebull had violated the conference's rule on political activity by judges. Canon 5 says that judges should abstain from political activity.

Common Cause is also spreading the word online by discussing the incident on its Facebook page and blogging about it on its web site. In the meantime, the Montana Human Rights Network has started an online petition calling for the judge's resignation. As of Friday, the campaign has received 1,100 signatures, said Travis McAdam, executive director of the group. The group plans to deliver those signature to the judge, and attach it to its ethics complaint, which the group plans to file with Kozinski and the Judicial Council of the Ninth Circuit early next week. For her part, Mia Farrow, who is politically active, on Friday tweeted a link to a statement from the chairs of the Congressional Black Caucus, the Congressional Hispanic Caucus and the Congressional Asian Pacific American Caucus condemning the judge for his, well, lack of judgement. Farrow has 34, 462 followers. And someone has of course started an "Impeach Richard Cebull" Facebook group.

McAdam said that his group believes that among other things, Cebull violated the rules on judicial misconduct because of the partisan nature of his e-mail.

"Where we think he's gotten himself into trouble is, in defending his actions, is that first he admitted that he's circulated racist material, which we think is a violation of his code of conduct, but then as part of his rationale, he's said publicly that 'Yeah, I know this is racist, but that's not why I sent it along to other people, I sent it along because I'm anti-Obama,' and so we think in their justification for doing it, he's used a straight up, partisan electoral argument," McAdam said. "A lot of his public defense just further implicates him as not living up to the standards of conduct we expect from a federal judge."

Judge Cebull also wrote to President Obama on Thursday apologizing for the e-mail.

"I sincerely and profusely apologize to you and your family for the email I forwarded," he wrote. I accept full responsibility; I have no-one to blame but myself. I can assure you that such action on my part will never happen again."

Professor Stephen Gillers, an expert in legal ethics at the New York University School of Law, said that the only way that Judge Cebull would be removed would be by impeachment and conviction in Congress, and "that's not going to happen."

He noted that Judge Alan McDonald, federal district court judge in Idaho who had made racially-charged comments during several court proceedings several years ago by passing notes to his clerks, had been publicly reprimanded, but not impeached. Gillers also argued that Cebull would not be able to claim, during the course of the investigation, that he didn't violate judicial ethics because he was acting as a private citizen.

"The fact that Cebull used government equipment and his official email address, in my view, eliminates any claim that his conduct was purely private and not a violation," Gillers told me in an e-mail. "Further, the fact that it was in an email, which contained his name and can be re-circulated without limit also undermines a 'purely private' defense."

But it seems that Cebull is aware of all this, and believes that the more transparent the proceedings against him the better. In asking Kozinski to start an investigation as to whether he violated judicial ethics, Ceball told Kozinski that he waived any confidentiality that might apply in the proceedings. So this incident may very well continue to play itself out online and in public.