Judges cannot provide analysis on executive orders, MD ethics panel says

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Maryland judges cannot provide bar association members with information or legal analysis on White House executive orders, the Maryland Judicial Ethics Committee found in an opinion published on Tuesday.

The opinion, published in response to a judge and a Maryland State Bar Association section council member’s inquiry, states that a judge’s participation in providing legal analysis on the White House executive orders “might reasonably raise a question of impropriety,” contrary to the Maryland Code of Judicial Conduct.

“Although judges appropriately participate in general educational activities through the MSBA and other bar organizations, in our view, for the current and recalled/senior judges who serve on these MSBA committees, the evaluation and analysis of White House Executive Orders is so specific that it would constitute the practice of law and, moreover, can be seen as indirectly advising the members’ clients themselves,” the Maryland Judicial Ethics Committee wrote.

The ethics committee added that providing legal analysis on executive orders could also be viewed as engaging in “partisan political activity,” which is prohibited by the judicial conduct code.

In the opinion, the ethics committee also recognized that the executive orders have spawned numerous lawsuits nationwide, mostly in federal courts, but noted that similar lawsuits could be filed in Maryland courts—a fact that could potentially call into question a judge’s independence, integrity and impartiality.

Andre M. Davis, a retired senior judge for the U.S. Court of Appeals for the 4th Circuit, said he thinks the ethics committee “reached the right decision.”

“You’re going to have some judges who are very supportive of one reading of the executive orders or some of the executive orders, and you’re going to have some judges who take a very different view of those executive orders,” Davis said in a phone call Thursday. “Some of those differences are going to be rooted in politics… and so it kind of draws judges into a real political debate.”

Davis added that while judges can and should be active in bar associations, he believes there are some matters they should not get involved in.

“This opinion, I think, strikes the right balance between the role of judges as senior members of bar associations who can contribute in appropriate ways against the risk that judges could become involved in inappropriate activity within the bar association,” Davis said, noting the opinion gives judges guidance.

Raphael Santini, president of the MSBA, said the ethics committee’s opinion addresses a limited issue and has a narrow application.

“We respect the opinion of the Judicial Ethics Committee, and it should be observed in this narrow application by all members of our profession,” Santini said in a statement on behalf of the MSBA. “We will continue to welcome judicial participation in a wide variety of MSBA activities, including continuing legal education, events, leadership and more as allowed under this opinion and prior opinions.”

Through March 7, Trump has signed 89 executive orders, according to the Federal Register, on a wide range of topics, from energy to immigration, emerging technologies to health care. Many of the orders have reversed longstanding U.S. policies, while others have been directed at undoing actions by his predecessor, President Joe Biden.

Trump has asserted an expansive view of executive power, and his flurry of orders has ignited a lively debate over the constitutional powers of the presidency. Many of his orders, including those having to do with extensive layoffs and the dismantling of federal agencies, have been challenged. Some of those disputes appear destined to be resolved only by the U.S. Supreme Court.