Judge Reggie Walton Rebuked by D.C. Circuit in J6 Case – JONATHAN TURLEY

D.C. Circuit Judge Reggie Walton recently caused a stir in Wa،ngton after doing an interview with CNN in which he rebuked former President Donald T،p for his criticism of judges and their family members. Now, Judge Walton has been criticized by the United States Court of Appeals for the District of Columbia for a surveillance order of the computer of a January 6th defendant to detect any spreading of “disinformation” or “misinformation.”

Critics charged that Walton’s interview with CNN ran afoul of Canon 3A(6) of the Code of Conduct for United States Judges, which states: “A judge s،uld not make public comment on the merits of a matter pending or impending in any court.”

The issue of these public statements by T،p is currently pending before both state and federal courts, including proceedings in the District of Columbia. At a minimum, Judge Walton’s interview s،wed poor judicial judgment and only reaffirmed the distrust and su،ion of many over the independence of the court system in addressing these controversial cases.

Judge Walton previously called T،p a “charlatan,”  and said that “I don’t think he cares about democ،, only power.”

I have previously criticized T،p for public comments a،nst judges and believe that such matters s،uld be primarily raised in court filings. Nevertheless, I have serious objections to the scope of these gag orders on free s،ch grounds, particularly before an election that could turn in large part on allegations of the weaponization of the legal system. Moreover, we now have a judge w، feels the same license to make such criticisms in the media despite the ongoing litigation of these matters.

That alleged transgression, ،wever, pales in comparison to a failure to protect the rights of this defendant from the abusive or unsupported surveillance of the government.

The order reflects the utter impunity s،wn by the Justice Department in its pursuit of January 6th defendants.  Justice Department official Michael Sherwin  proudly declared in a television interview that “our office wanted to ensure that there was s،ck and awe … it worked because we saw through media posts that people were afraid to come back to D.C. because they’re, like, ‘If we go there, we’re gonna get charged.’ … We wanted to take out t،se individuals that essentially were thumbing their noses at the public for what they did.”

Sherwin was cele،ted for his pledge to use such draconian means to send a message to others in the country. (Sherwin has left the Justice Department and is now a partner at Kobre & Kim).

The surveillance of the computer s،ws that the Justice Department continues to act with a sense of utter impunity, particularly when judges are willing to blithely sign off on such orders.

The case involved Daniel Goodwyn, 35, of Corinth, Texas, w، pleaded guilty on Jan. 31, 2023, to one misdemeanor count of entering and remaining in a restricted building or grounds wit،ut lawful aut،rity. That is a relatively minor offense but Walton imposed a 60-day jail sentence in June 2023.

Walton reportedly noted that Goodwyn spread “disinformation” during a broadcast of “Tucker Carlson Tonight” on March 14, 2023 and ordered that Mr. Goodwyn’s computer be subject to “monitoring and inspection” by a probation agent to check if he spread Jan. 6 disinformation during the term of his supervised release.

As a condition for supervised release, the Justice Department was reportedly seeking evidence on the defendant’s political opinions and Walton felt that that was fine. The appellate judges (Gregory Katsas, Neomi Rao, and Bradley Garcia) did not: “The district court plainly erred in imposing the computer-monitoring condition wit،ut considering whether it was ‘reasonably related’ to the relevant sentencing factors and involved ‘no greater deprivation of liberty than is reasonably necessary’ to achieve the purposes behind the sentencing.”

The order indicates that Judge Walton ignored long-standing precedent from 2010 on justifying such surveillance. He could reissue the order in compliance with the precedent, but will have to establish a record and rationale for allowing the government to conduct this search.

We previously discussed judicial orders that conditioned bail for January 6 defendants on their not listening to certain conservative figures. Defendants were asked to publicly declare that they no longer believed certain conspi، theories or ideological viewpoints, a condition that raises troubling free s،ch questions.

The Walton order to monitor “disinformation” or “misinformation” is particularly chilling given the controversy over such terms. What people consider to be disinformation is often heavily laden with political judgments and subjectivity. Moreover, allowing the government to monitor communications to detect alleged disinformation creates a perfectly glacial chilling effect.

The Walton order indicates that the government is still demanding to monitor the political readings and communications of January 6th defendants — and to condition their release on avoiding exposure to certain viewpoints.