Reporting on abuse by federal judges means cracking open a culture of fear
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Kerry Johnson knows the American justice system inside and out. Her very first job in journalism was at the Legal Times in 1996, then a decade at the Washington Post, and then 15 years as NPR's justice correspondent. Decades covering the closed world of the federal judiciary. But even for a seasoned pro, trying to crack open that world...

It can be tricky. I've been doing this a long time, and these conversations are among the most sensitive I've ever had. For the past year and a half, Kerry has been investigating the power dynamics between federal judges and their staff, in particular, their clerks. These judges are basically in control of the clerks' lives, both during the point of the clerkship and then almost forever after because they're like a major reference. Anytime somebody wants another job in the legal industry, they're like,

And they're supposed to be, in the best of circumstances, they're supposed to be like lifelong mentors giving you advice about how much to work, the kinds of jobs to take, when to dial back, when to pay attention to your family. That's the best of times. At worst, Carrie found a troubling pattern. Judges who harass, bully, or control their law clerks, often with little oversight or scrutiny. The judge was the HR department. The judge was my boss. The judge was a colleague there.

The judge was everything. He had all the power. This is one former law clerk who worked for a federal judge in Alaska a few years ago. It started immediately. The inappropriate conversations, there was a lot of talk about the judge's personal relationships, about sexual relationships. That inappropriate behavior escalated into sexual harassment and, she alleges, assault.

Other clerks reported bullying, discrimination, or racially problematic comments from judges. And yet a culture of secrecy made many of these sources afraid to speak out. That voice you just heard wasn't actually the real voice of the law clerk from Alaska, though they are her words verbatim. We're using a voice actor because she was too afraid to talk into a microphone. How?

How many former law clerks did you talk to for these stories? More than 50 current and former law clerks to federal judges and some other people who currently work or used to work in other jobs in the federal courts. And of that more than 50, how many agreed to go on the record in one way or another? Two or three. ♪

Consider this. Federal judges are appointed for life. They operate with little outside scrutiny or oversight. And a culture of secrecy in federal courts can deter whistleblowers from speaking out. So today for our weekly reporter's notebook series, Carrie Johnson takes us inside her investigation. The challenge of using anonymous sources to bring accountability to the courts. From NPR, I'm Scott Detrow.

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It's Consider This from NPR. Federal courts are currently at the epicenter of the legal fight over President Donald Trump's authority. Constitutional challenges to his executive orders and actions often first end up in front of one of the several hundred federal judges across the country. You need them to be as good as they can possibly be in a situation where they are sort of a focal point of a major national crisis and the bulwark of our democracy. So the

They need to get their affairs in order. This is Gabe Roth, executive director of Fix the Court, a group that fights for more accountability in federal courts. Earlier this year, a survey of federal court staffers suggested the vast majority had experienced no wrongdoing on the job. And yet another part of the survey was more troubling. Fewer than half of respondents believe workers are encouraged to report misconduct. People are still scared about retaliation. They're scared that if they report horrendous

This is exactly what Kerry Johnson found as she began to report on the power dynamics between federal judges and their law clerks. Almost none wanted to go on the record.

So I wanted to talk with Carrie about how she wrestled with such a challenging story and what it told her about the inner workings of the federal judiciary. We started by asking people to share their experience, reach out to us via email. And I went back and I reached back out to, you know, dozens and dozens and dozens of people.

And to start the conversation with them, I would say, do you think you want to talk on the record, which to me means I'd use your name, use the information. Maybe we can go on tape sometime. Do you want to talk on background, which would mean I would take the information, but I wouldn't use your name in any way or identifying characteristic? Or do you want to be totally off the record? Like, I'm going to take this information, but I really can't do anything with it. And the overwhelming majority of people with whom I spoke said, I need to be off the record.

I'm so afraid. And they were so afraid when they were in the jobs. They were so afraid even years after they had these jobs. And so what happened was I wound up spending, I don't know, hundreds of hours talking to people and hearing about some of their most painful experiences. I cannot tell you how many of these people cried, men and women. And at the end, I would ask them,

Do you think you might consider going on background with us eventually so I could share at least some of this information? And in a bunch of cases, some of them finally agreed to do that. But it was hard going. So let's just talk for a moment about that period when you are a reporter and you're trying to get somebody to go on the record or go on background. There's different extreme ends of this, right? And you are on this extreme end of like the most sensitive thing where you're trying to be really careful for their benefit and for your event of it.

There's this other extreme where you're like, hey, man, this story is airing in an hour. Do you want to comment or not? Because we're still doing it right when you're talking to people who professionally live in the world of news. Maybe they've been sued. Maybe there's some sort of controversy they're involved in. You have the facts anyway. And you're just like, I need to know. Right. And that's a very clear cut thing where it's like it's transactional. There's a deadline. Right.

This is not that. This was a different circumstance. This was people who had basically raised their hands and agreed to talk with us and then got really nervous about it in a lot of respects. And, you know, they told us things ranging from experiences of sexual assault, people who had been surveilled or had papers thrown at them by their boss.

to more insidious things like being compelled to drink on the job or drink with other judges or basically judges exerting control over where these people worked years after the clerkships ended. And so it was very sensitive for them, and I felt the need to honor and respect that. At the same time, these are all lawyers, right? So they're extremely risk-averse. They're very careful in their language, and I had to kind of manage that situation too.

What in a situation like that do you feel like is your obligation to explain to somebody what it means to be part of a radio story, like what it means to them, to their lives, to their career?

I think this is hugely important and it's different than most of the other kind of reporting that I do. For a long time now, decades and decades, I've worked in Washington in institutions where people have generally been confirmed by the U.S. Senate and understand what the media does and have interacted with the media. They're public figures. They're public figures or at least quasi-public figures, right? They're people inside the Justice Department, the FBI, the Marshal Service, the courts, whatever.

And they generally know the rules and they know the tradeoffs. Absolutely. And these are people, most of the clerks I spoke with, had maybe never before talked with a reporter and certainly not talked out of school as they thought in this way. You know,

Many of these people still talked about their judge and that's what they said. Well, my judge, my judge put his hand on my knee. Oh, my goodness. You know, and it was extra important for me to take care with them and to listen to them for as long as they wanted to talk, really, before even broaching the idea of whether they would talk on tape for the radio. Let's get to that point, then. You have now gotten enough people to talk to you on background, but...

We're radio reporters. We do broadcast stories. And you did something really interesting to get around that hurdle. You actually used voice actors. We did. We asked people if they would be comfortable with us recording the sound of their voice. We wouldn't use it on the radio or for broadcasts, but we would find actors to basically say the same words verbatim with a sense of the emotion and a sense of...

you know, what they brought to the table in terms of their voice and what they experienced. This is a true compliment. You're kind of a crusty old school reporter, you know? I plead guilty. How did you feel about that approach? I felt that it was important to reflect some of the experiences of the people with whom I spoke because a lot of bad behavior is going on. Not every judge, maybe not even most judges.

But the power imbalance here is so great that I felt committed to the idea that we try to reflect these people's experience and share it with the world. And in fact, since our first story ran, I've heard from more people who have felt more willing to

to talk, at least on background, because something they heard in that first story really struck a nerve with them. And also, I think they got a sense of the care with which we approach these issues. Take us up to speed on what's happened since the story first came out in March then. Like you said, you got a lot of new tips. We got a lot of new tips, talked to a lot of new people, prepared another story running next week. And since that time, the federal courts have

The federal courts basically say they've done a lot since the Me Too movement to improve the internal systems because basically the courts police themselves. OK, so if you have a complaint, you really can't sue, generally speaking, because the federal civil rights law at issue here doesn't apply to the federal courts. It's a different branch of government. And so the internal system of the judiciary is basically what these people have to rely on if they have a problem.

And overwhelmingly, they don't trust it. They don't trust it because some judge down the hallway or some judge in the next building over might be hearing their complaint. And they're worried that, you know, they can't stay anonymous and that nothing really is going to happen to the judge who engaged in bad behavior or bullying. Yeah.

You know, one of the things I sometimes think about as we talk about the federal courts is that it's always interesting to me that when a ruling comes out, it's framed as a federal judge ruled. And it's almost like the individual doesn't matter. It's the power of that position. A federal judge who oversees a federal courthouse has made a decision, and that's what matters.

This is an example that, in fact, it often does matter who the specific people are in those roles. Well, you know, the interesting thing about this project is I heard complaints about all kinds of judges, young judges and old judges, male judges and female judges, judges who were appointed by Democratic presidents, judges who were appointed by Republican presidents. And so I don't think we can say that any particular characteristic or group of characteristics is like relevant.

really the source of the problem here. The source of the problem here appears to be that human beings are flawed. And when you give people that much power...

over everybody in their chambers and lifetime tenure, flawed people can sometimes take advantage of that power. That was NPR Justice Correspondent Carrie Johnson. This episode was produced by Monica Estatieva and Noah Caldwell. It was edited by Barry Hardyman and Adam Rainey. Our executive producer is Sammy Yannigan. It's Consider This from NPR. I'm Scott Detrow.

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