On DOJ's petty and small — but also alarming — complaint against a federal judge

Chad Mizelle filed the judicial complaint against Judge Ana Reyes after a hearing over one of Trump's anti-trans orders. Also, for paid subscribers: Closing my tabs.

In the midst of all of the questionable and outright illegal Trump administration actions, a three-page letter filed by Attorney General Pam Bondi’s chief of staff could easily get lost in the mix — but it shouldn’t.

On Friday evening, Bloomberg News’s Erik Larson and Zoe Tillman reported that Chad Mizelle had filed a judicial complaint with the chief judge of the U.S. Court of Appeals for the D.C. Circuit accusing U.S. District Judge Ana Reyes of “hostile and egregious misconduct“ during the two-day hearing over the constitutionality of President Donald Trump’s anti-transgender military executive order.

“The transcript reveals multiple instances where Judge Reyes’ misconduct compromised the dignity of the proceedings and demonstrated potential bias, raising serious concerns about her ability to preside impartially in this matter,” Mizelle wrote to Judge Sri Srinivasan, an Obama appointee who is the chief judge of the D.C. Circuit, about Reyes, a Biden appointee who sits on the district court in D.C. (Under law, such complaints go to the chief judge of the circuit where a judge sits.)

It is an almost unbelievably petty and small letter — but, in this moment, it is also exceptionally alarming and could be the launch of a new attack on judicial independence from the Trump administration.

The extremely weak grounds for Mizelle’s complaint are discussed at length below, but, broadly speaking, this is a clear effort to “work the refs” that should be quickly shut down as unjustified and inappropriate. It is, first, an attempt to undermine the credibility and eventual ruling from the district court judge in the case. Second, it is an effort to begin arguing the merits of the case to the chief judge of the D.C. Circuit.

Beyond that, though, Mizelle’s complaint could send a significantly more chilling message about judicial independence to judges in more right-leaning circuits — making Srinivasan’s response here all the more important.

So, what is happening?

The bottom line is that Reyes clearly believes that at least aspects of Trump’s anti-trans orders are likely motivated by animus, and Mizelle doesn’t like that.

Mizelle worked in various roles across the first Trump administration, ending up as the acting general counsel at the Department of Homeland Security, and then worked for Jared Kushner’s Affinity Partners investment firm for at least some of the time in the past four years before joining the second Trump administration in the Justice Department. He is also the husband of U.S. District Judge Kathryn Mizelle, one of Trump’s final judicial nominees confirmed in his first term. Multiple reports announcing Chad Mizelle’s role in Trump’s second term highlighted him as being a “longtime ally” of Stephen Miller.

Reyes is a Harvard Law School graduate who clerked for a federal appeals court judge and was a partner at a BigLaw firm before being nominated to the bench. Reyes also is a Latina lesbian immigrant.

To start on the letter, let’s first be clear that Mizelle was not a lawyer before Reyes. Two other Justice Department attorneys were representing the government at the hearing. Jason Lynch was making arguments, and Jean Lin was there in a supporting role. Notably, neither of them have filed any motion before Reyes seeking disqualification.¹

Mizelle was not even apparently at the hearing, as he only discusses the allegations through reference to the transcript. It shows, because Mizelle both cherry picks quotes from the two-day hearing to make his allegations and is either unaware of or intentionally ignoring the legal issues before the court.

Essentially, Mizelle’s complaint declares two moments as representing “unacceptable misconduct” that justify “further investigation to determine whether these incidents represent a pattern of misconduct that requires more significant remedial measures.” In order to describe the moments that way and recommend that action, Mizelle simply removes all context from the hearing — presenting the moments as somehow unrelated to the testing of legal theories that judges regularly engage in with counsel during arguments and excluding Reyes’s repeated comments about how well Lynch was representing the government.

At one point, Reyes referenced an email she received in chambers suggesting that she develop a relationship with Jesus. As detailed by Mizelle, Reyes told Lynch: “What do you think Jesus would say to telling a group of people that they are so worthless, so worthless that we’re not going to allow them into homeless shelters? Do you think Jesus would be, ‘Sounds right to me’? Or do you think Jesus would say, ‘WTF? Of course, let them in.’?“ By Mizelle’s telling, this was “questioning [Lynch] about his religious views.”

What Mizelle ignored is that this is a case that turns in part on whether animus motivated Trump’s executive order. It was in that context — and in light of a Trump administration decision reversing protections for transgender people in need of space in homeless shelters — that Reyes raised the question. While Mizelle attempted to turn it into some sort of attack on Lynch’s faith, it was clear that Reyes was using the email in an admittedly ham-handed attempt to generalize the courtroom discussion about the motivations behind Trump’s policies. When he didn’t bite, she moved on.

Another part that Mizelle ignored — and perhaps more central to this complaint — is that Reyes raised the email in reference to the outside animosity that has been sent her way due to her role as the judge on the case. These directed attacks on Reyes have included Fox News’s Laura Ingraham accusing Reyes of bias because she is a lesbian hearing a case over one of Trump’s anti-transgender orders.

The other moment that forms the basis of Mizelle’s complaint came in the midst of a discussion about the language in the executive order, which Mizelle only characterizes as “an exchange about discrimination.” Reyes said: “I made a change to my standing order when I was in the back. My new standing order says that no one who has graduated from UVA Law School can appear before me. So, I need you to sit down, please. I need you to sit down.” Mizelle noted that after Lynch sat down, “the judge continued her hypothetical about UVA law graduates being banned from her courtroom because ‘they’re all liars and lack integrity’” — which directly tracked her comments about the executive order. Mizelle concluded: “Only after Judge Reyes used counsel as a physical prop did she instruct him to come back up to continue the proceedings.”

Let’s be clear: Reyes is a very active judge. She pulls real-life examples and analogies out and just sort of lays them out to the lawyers in front of her to see how they go. This seemed important to her in this case in particular because, throughout the arguments, Lynch regularly said that he had no information to help him answer her questions. At one point, she told the government lawyers bluntly in response to their non-responsiveness that they were the lawyers in front of her defending the administration, so she expected answers from them. Reyes’s desire to get answers when none were forthcoming pretty transparently led her to seek answers through analogies and examples. That was all that this was.

And, as I noted above, whenever there could have been any possibility that a lawyer could have felt that they were being treated harshly by Reyes, she made clear that she thought the lawyers were doing a very good job of representing their clients — as she did there with Lynch, the UVA grad.

It’s very disturbing to see these brief moments — both of which were attempts to get answers from a largely non-responsive government lawyer defending a policy being challenged as being unconstitutionally discriminatory — form the basis of a judicial complaint.

It’s also, as I noted above, clear that Mizelle is either unaware of what’s going on in the case or intentionally trying to ignore the legal issues that were debated out in the two days of arguments.

In a paragraph that Mizelle claimed is provided “[f]or background” to Srinivasan, he presents arguments that are specifically at issue in the case before Reyes. “The Military EO, consistent with a separate executive order specifying that ‘sex’ refers to an individual’s immutable biological classification as either male or female, explains how use of pronouns that inaccurately reflect an individual’s sex is also inconsistent with those high standards [for military service],” he wrote.

Literally in the next paragraph, Mizelle continued, “At issue during the hearing was simply ripeness and success on the merits. Judge Reyes, however, took issue with the Government’s positions on many other issues, including whether there are only two sexes (male and female).”

What does “consistent with” mean, Chad?

As everyone in the courtroom was aware, Reyes “took issue” with that because that definition of “sex” from the January 20 anti-trans executive order was incorporated into the military executive order — and was specifically addressed in the amended complaint submitted by the service members and potential service members challenging the order. In short, that discussion was part of Reyes’s consideration of the likelihood of success on the merits.

This complaint is inappropriate, and Srinivasan should defend the independence of the judicial branch in quickly rejecting it.

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