Federalist Society Member Judge Jennifer Elrod Leads the 5th Cir. Choir, Expanding Ochlocracy in Texas

Texas judges now get broader immunity than the U.S. president

A federal appeals court issued a remarkable decision last week finding that Texas judges are exempt from federal subpoenas in a lawsuit challenging a local bail system because they’re protected by sovereign immunity, even if they’re no longer defendants in the case.

The Sept. 19 ruling from the 5th U.S. Circuit Court of Appeals is a novel and dangerous extension of governmental immunities.

It further diminishes citizens’ ability to hold officials accountable by blocking the basic fact-finding processes that often produce the best evidence of systemic wrongdoing – like an agency-wide practice that happens to be unconstitutional — in cases that serve the public interest.

The issue of compelling testimony from officials has taken pressing urgency recently, due to former President Donald Trump’s defiant attitude about providing information in the multivarious investigations of his business dealings and attempts to subvert the U.S. elections system.

By and large, the answer that has emerged from the courts is that no individual is categorically exempt from the civic duty to provide evidence in legal proceedings, regardless of office.

Since July, state courts in Georgia have refused to quash subpoenas for 11 fake Republican electors, Georgia governor Brian Kemp, and U.S. Representative Jody Hice, in a grand jury investigation of Trump’s efforts to covertly overturn the 2020 election results in that state; a federal judge rejected a second attempt by U.S. Senator Lindsey Graham to avoid testifying before that same Georgia grand jury; and another federal judge affirmed a contempt conviction against former presidential adviser Steve Bannon for defying a congressional subpoena related to the 2021 Capitol attack.

This month, Trump’s former White House chief of staff, Mark Meadows, reluctantly complied with a subpoena for documents in a U.S. Justice Department probe into the Capitol attack. Even conservative activist Ginni Thomas, the wife of U.S. Supreme Court Justice Clarence Thomas, testified before the congressional committee on Thursday after initially indicating she wouldn’t appear.

The principle also applied to Trump himself, when the Supreme Court ruled unanimously in 2020 that a sitting president isn’t exempt from a state court subpoena. (The subpoena in Vance v. Trump was directed at Trump’s accountants – a “third-party subpoena” – but the court construed it as a subpoena to the president because it sought documents belonging to Trump.) Trump was fined $10,000-a-day for initially defying a subpoena in a New York state investigation of his business and was ultimately forced to appear for a nearly six-hour deposition in August.

Of course, well before Trump, the Supreme Court in 1974 held that President Richard Nixon had to comply with a DOJ subpoena seeking information about the Watergate scandal. And in 1997, it held that President Bill Clinton had to sit for a deposition in a civil lawsuit for sexual harassment allegedly committed before his election.

Still, despite those well-established precedents, and the bedrock underlying principles, the 5th U.S. Circuit Court of Appeals decided last Monday that Texas state district judges have immunity from subpoenas in a federal lawsuit against Harris County and its sheriff over its bail system.

The opinion was written by Judge Jennifer Elrod and joined by Judge Edith Clement, both of whom are former President George W. Bush appointees, and by Judge Carl Stewart, an appointee of former President Clinton.

The ruling undermines the supremacy of federal law by reinterpreting state sovereignty as a shield that can bar access to evidence necessary to vindicate rights under the federal Constitution.

Texas attorney general Ken Paxton, whose offices argued on behalf of the judges, didn’t respond to my questions. A representative of the 5th Circuit told me the judges cannot comment on the ruling.

The underlying lawsuit was filed by several people who were detained in Harris County after being unable to post a cash bond.

They’re represented by attorneys from the Earthjustice Legal Defense Fund, Civil Rights Corps and Hogan Lovells.

The 5th Circuit held in an earlier 2018 case that Harris County’s bail system was unconstitutional because it favored people who can afford cash bail.

But that decision was essentially overruled when a different panel of 5th Circuit judges dismissed a similar suit against Dallas County.

That panel held that sovereign immunity bars suits against some officials in that case and that federal courts should sit out the matter until Texas lawmakers iron out the details of proposed legislation to reform bail procedures.

The plaintiffs in the latest ruling dropped the judges from their case after that 2018 decision, deciding instead to simply subpoena them for testimony and documents.

After that, the 5th Circuit simply extended sovereign immunity again, exempting state officials and entities not only from lawsuit, but even from basic discovery in federal court.

The opinion ignored prevailing precedent:

Most courts that have considered the question have held that state officials are subject to federal subpoenas (sometimes with certain situational limitations), as briefs in the case by the Constitutional Accountability Center and the Civil Rights Corps pointed out.

Worse still, the opinion is lacking in analysis.

Federal courts commonly balance the need for discovery in a particular suit against the potential burden on an entity or official, but the 5th Circuit’s opinion is basically a blunt assertion of power by virtue of the state officials’ status.

Compelling them to answer questions in a private citizen’s suit offends the “sovereign’s dignity and authority over its prerogatives,” the 5th Circuit wrote.

That sort of reasoning does little to dispel the notion that U.S. judges are almost never held to account for misconduct or even unlawful behavior — largely because they’re judges.

More importantly, the ruling supports arguments that states have virtually unilateral power to decide what information they will provide in a myriad of legal disputes, or if they will provide any at all.

The decision could have serious repercussions, for example, for cases involving access to body-camera footage, wage abuse litigation or illegal pollution matters, if the state is implicated.

Spokespersons for the Civil Rights Corps and Earthjustice told me they were planning next steps and declined to comment further.