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Marriage between attorney, incoming judge complicates things in Western District court

When Jasmine Yoon begins her work as a federal judge this year, she may be hearing cases prosecuted by her husband’s office, raising questions about potential conflicts of interest and if one or the other is willing to resign or recuse themselves.

Last month, the U.S. Senate confirmed Yoon to fill a vacancy in the U.S. District Court for the Western District of Virginia, which has courthouses in Abingdon, Charlottesville, Danville, Harrisonburg, Lynchburg and Roanoke.

A University of Virginia graduate and Charlottesville local, Yoon is currently the vice president for corporate integrity, ethics and investigations at Capital One Financial Corporation. She will be the first Asian American federal judge in Virginia and the first judge of color in the district when she takes her seat.

She also happens to be married to U.S. District Attorney Christopher Kavanaugh, the government’s leading criminal prosecutor in the Western District of Virginia. As such, Kavanaugh’s office regularly prosecutes cases in the same court over which his wife will preside.

U.S. code mandates that a judge must disqualify herself from a case if her spouse is acting as a lawyer in the proceedings.

Yoon cited that code in her official response to a questionnaire for judicial nominees, in a section titled, “Potential Conflicts of Interest.”

“In the event of a potential conflict of interest, I would address it by reviewing and consulting the Code of Conduct for United States Judges and the rules and standards specified in 28 U.S.C. §455,” Yoon said.

Noting that her husband is a U.S. attorney, she said that she would recuse herself from any cases in which the U.S. is a party.

That arrangement might prove difficult for the court system and for Kavanaugh’s office.

“It could be a huge headache logistically on both ends of any case he’s assigned,” Mason Lowe, a professor at the College of William & Mary Law School, told The Daily Progress. “He would either need to withdraw from the case and have someone else in the office handle it, or she’d recuse herself.”

That could just be the beginning of the headache, even if Kavanaugh withdrew from a case.

“It still would be his office that’s dealing with it if she were involved,” Lowe said.

For someone being prosecuted by Kavanaugh’s office and the people who report to him, his marriage could be used as a pretext to remove Yoon from the case.

“Any defendant in a proceeding before the judge can raise an issue and seek some form of disqualification or suggest there’s a problem with reporting to a U.S. attorney who is married to the judge,” Michael Frisch, a professor at Georgetown University Law School, told The Daily Progress.

While it may not be common for a judge and attorney to be married, there have been instances where a judge has had a relationship with someone in the sheriff’s office or another person in law enforcement.

“It’s not in any matter unprecedented. It has to be handled on a situation-by-situation, case-by-case basis to avoid the appearance of any impropriety,” Frisch said.

One way to avoid any such appearance and to eliminate any logistical headaches would be for Kavanaugh to step down.

Last year, during the Virginia State Bar’s evaluation of judicial candidates, Yoon said her husband would do just that.

According to a report from that evaluation committee, Yoon’s claim that Kavanaugh would step down from his position if she were appointed to the bench “assuaged the committee’s fears of a potential conflict of interest.”

Frisch said that would be a much better solution than case-by-case recusals.

“It definitely solves the problem in a fuller way than individual disqualification in a particular case,” Frisch said. “Since he’s former and not in line of making decisions, that pretty much solves the problem.”

Kavanaugh, who was appointed to his role by President Biden in October 2021, is not yet "former." Instead, he is in the middle of a four-year term and it’s unclear if he plans to complete it. His office declined to comment to The Daily Progress on the matter.

Any conflict of interest will not arise until Yoon actually joins the court. The clerk’s office told The Daily Progress it does not know when that will happen.

But it could be as soon as July, when Judge Michael Urbanski, who Yoon will be replacing, assumes senior status.

In her judicial questionnaire, she left open the possibility of Kavanaugh’s resignation.

“If” he were still the U.S. attorney, Yoon said she would recuse herself from any U.S. cases “until he leaves office and from any matters that were active within the United States Attorney’s Office during his tenure as the United States Attorney.”

There is no evidence to suggest that Yoon misled the state bar about her husband’s plans, and Kavanaugh still has at least three months to step down before she joins the court.

While the bar’s report says that Yoon was found to be “highly qualified” to be a federal judge, that recommendation was made at least in part because of Yoon’s assurance that her husband would resign.

“If an ethical opinion is sought on a premise that turns out to be faulty, then maybe the ethical opinion has to be revisited,” Frisch said.

But there would be little recourse against Yoon if her husband chooses to stay in office. U.S. judges are appointed for life, and impeachment is rare.

“I could understand the concern people have, and I could understand how [Kavanaugh resigning] would ease some of the concerns,” Lowe said. “But the truth is, once someone is confirmed, there’s really no way to require that.”

He said it’s something that Americans may see happen in confirmation hearings for U.S. Supreme Court appointments: Candidates are asked questions by senators, but once confirmed, they’re not bound by the answers they provided.

“It’s something I think bothers a lot of people, but that’s the reality of the situation,” Lowe said.

Yoon’s appointment was championed by Democratic Virginia Sens. Mark Warner and Tim Kaine, who were the ones to nominate Yoon in the first place. Asked if they would like to see Kavanaugh step down, their offices offered the following statement:

“After reviewing the assessments of an independent panel of Virginia attorneys, Senators Warner and Kaine recommended Jasmine Yoon based on her strong record and experience. Based on their thorough review and her assurances, they are confident that she would take the necessary steps to avoid even the appearance of a conflict of interest.”

It is identical to a statement cited by the Roanoke Times when that paper wrote about the matter last November before Yoon’s confirmation.

The Daily Progress could not reach Yoon for comment.

Source: www.dailyprogress.com

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