Federal Judicial Security Update

Beltway Bulletin from the Fall 2024 issue of The Federal Lawyer magazine

“Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected.”

-Justice Joseph Story

The impartial administration of justice requires that judges be free to make decisions without fear of reprisal from disappointed litigants, lawyers, or other interested individuals. Unfortunately, however, today many federal judges, as well as other courthouse personnel, do not enjoy that freedom.¹

Since 1789, the U.S. Marshals Service has been responsible for protecting the federal judicial process, including judges, prosecutors, jurors, witnesses, and other court officials, as well as members of the public who visit federal courthouses.² In a disheartening sign of the times, Ron Davis, director of the U.S. Marshals Service, testified to Congress earlier this year that serious threats against federal judges have more than doubled over the past three years, rising from 224 in 2021 to 457 in 2023.³ In total, the Marshals investigated 1,061 threats and potential threats to protected persons in fiscal year 2023.⁴

Judges have been threatened in person, over the phone, by mail, by email, by doxxing,⁵ and in recent months via swatting, an extremely dangerous tactic that involves an anonymous fake emergency call summoning armed law enforcement teams to a judge’s home to respond to a violent crime.⁶ Such tactics are made possible by relatively easy internet access to judges’ personally identifiable information (PII).

Through organized and consistent advocacy and in collaboration with U.S. District Court Judge Esther Salas and members of the Federal Judges’ Association, the FBA was instrumental in securing the enactment of the Daniel Anderl Judicial Security and Privacy Act in 2022 (Anderl Act), named for Judge Salas’ son, who was shot and killed at the judge’s home by a disgruntled lawyer. The Anderl Act will help protect judges and their families by facilitating the removal of their PII from internet databases, but only if Congress appropriates funds to enable implementation of the Act’s protections. In other words, the Anderl Act authorizes the Judiciary and the Department of Justice (DOJ) to take certain actions to protect judges, but it does not provide the funds necessary for the Judicial and Executive branches to exercise their new authorities. For that, Congress must enact appropriations—or spending—legislation.

After significant advocacy by the FBA and other stakeholders, President Biden included $10 million in his Fiscal Year (FY) 2025 Budget Request for a new DOJ grant program authorized by the Anderl Act. The funds would be available to state and local government database managers to defray the costs of scrubbing judges’ PII from their systems. During Capitol Hill Day and since, FBA members mobilized to urge Congress to provide the full $10 million sought by the Administration, a particularly difficult task since there are tight fiscal constraints that impact existing programs, as well as any decisions to fund new grant programs. We were pleased to see FBA’s advocacy and the advocacy of judges and their association pay off with an initial victory on June 26, 2024, when the House Appropriations Subcommittee on Commerce, Justice, and Science (CJS) approved the draft Fiscal Year 2025 bill funding DOJ and included a $10 million allocation for the Anderl Act’s new state and local government grant program. This is noteworthy because the overall DOJ allocation was reduced in the draft bill by 3% and because it reflects the bipartisan interest in helping federal judges via this new program. The full Appropriations Committee approved the bill, including the $10 million allocation, on July 9. We do not expect that further House action on the CJS Appropriations bill would put the $10 million allocation at risk.

Additionally, separate appropriations legislation passed by the House Appropriations Committee for FY 2025 would provide $777.4 million to the judicial branch for court security expenditures. This amount is an increase from the $750.2 million provided for court security for FY 2023 and 2024, and the bill text specifically authorizes the Judiciary to use these funds for purposes authorized by the Anderl Act.

On July 25, the Senate Appropriations Committee approved its CJS bill, which also appropriates $10 million for the Anderl Act’s DOJ grant program, and on Aug. 1, the Senate Appropriations Committee approved its judicial branch funding bill, including $797.5 million for court security. Like the House version, the Senate bill text specifically authorizes the Judiciary to use these funds for purposes authorized by the Anderl Act. Although we do not expect Congress to enact final versions of these appropriations bills before FY 2025 begins on Oct. 1, 2024, we predict Congress will agree to Continuing Resolutions that extend the FY 2024 spending levels at least until after the November elections and that we will get a final decision on Anderl Act funding in late Fall or early in 2025.

In light of this elongated timeline, it remains critical for FBA members to keep the issue of judicial security in focus for key members of the House and Senate Appropriations Committees, especially as 2024 draws to a close and the 118^th Congress scrambles to conclude unfinished business before adjourning. We encourage each of you to respond when the FBA Government Relations Committee requests your assistance. Your efforts in support of the Anderl Act and funding for its implementation will benefit not just judges and their families, but you, your clients, and our judicial system as a whole.

Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. before joining ArentFox Schiff. She also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. Jackson has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation. Dan Renberg has helped numerous clients since joining Arent Fox as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included as one of the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America.

Endnotes

1 Lindsay Whitehurst, Threats to Federal Judges Have More Than Doubled in “Alarming” Spike, U.S. Marshals Director Says, AP News (Feb. 14, 2024, 4:18 PM), https://apnews.com/article/threats-federal-judges-us-marshals-alarming-a6a5398d6d09cf057eb5317592c8d299.

2 U.S. Marshals Serv., Fact Sheet: Judicial Security (2024), https://www.usmarshals.gov/sites/default/files/media/document/2024-Judicial-Security.pdf.

3 Whitehurst, supra note 1.

4 U.S. Marshals Serv., supra note 2.

5 Dox, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/doxxing (last visited Jul. 23, 2024).

6 Whitehurst, supra note 1; see also Holmes Lybrand, U.S. Marshals Director Calls Increase in Threats to Judges and Prosecutors “A Substantial Risk to Our Democracy”, CNN (Feb. 14, 2014, 10:59 AM), https://www.cnn.com/2024/02/14/politics/threats-to-judges-increase/index.html; Joseph Tanfani et al., Judges in Trump-Related Cases Face Unprecedented Wave of Threats, Reuters (Feb. 29, 2024, 12:00 PM), https://www.reuters.com/investigates/special-report/usa-election-judges-threats/; Nick Visser,  Judge Faces Death Threats, Jurors Doxed Amid Multiple Trump Indictments, Huff Post (Aug. 16, 2023, 11:30 PM, updated Aug. 17, 2023), https://www.huffpost.com/entry/trump-jurors-judge-doxxed-death-threats_n_64dd8826e4b00205f646d383; Holmes Lybrand, Federal Judge Overseeing Election Case Against Trump Was Victim of Swatting Incident, CNN (Jan. 8, 2024, 3:52 PM), https://www.cnn.com/2024/01/08/politics/judge-chutkan-trump-case-swatting/index.html; Lydia Wheeler, US Marshals’ Blind Spots Leave Judges Vulnerable to Threats, Bloomberg Law (Dec. 7, 2023, 4:00 AM, updated Dec. 7, 2023, 9:30 AM), https://news.bloomberglaw.com/us-law-week/us-marshals-blind-spots-leave-judges-vulnerable-to-threats.