A federal appeals court judge appointed in 1987 by former President Ronald Reagan is accused of violating his code of conduct when he refused to let an attorney with the U.S. Department of Justice keep his mask on during a COVID-19 surge. 

“Remove your mask, if you would,” 5th U.S. Circuit Court of Appeals Judge Jerry Smith could be heard telling Josh Koppel on Jan. 6 during a hearing covered by the Associated Press (AP).

“I’d prefer to leave it on,” Koppel responded.

“We would prefer that you remove it, thank you,” Smith pressed.

Gabe Roth, executive director of the nonprofit Fix the Court, wrote in a letter to the 5th Circuit clerk that Smith violated a portion of the code of conduct detailing that a judge “should be patient, dignified, respectful, and courteous” to attorneys. “His initial response was plainly audible on the court’s audio recording, indicating that the mask was not impeding Judge Smith’s ability to hear him,” Roth wrote.

Smith, the Justice Department, and other court officials didn’t comment for the AP’s article.

Priscilla Owen, the court’s chief judge, will be reviewing the complaint, the AP reported.

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The case Koppel was arguing before Smith and two other judges involved former Louisiana District Attorney Harry Morel Jr., who was accused of “using his position as District Attorney to obtain sexual favors from defendants and members of defendants’ families.”

Stated in the case background:

“After initially declining to prosecute Morel, the US Attorney’s Office for the Eastern District of Louisiana later decided to prosecute Morel. Morel eventually plead guilty to one count of Obstruction of Justice with a maximum three-year sentence. The Plaintiff was upset by the lenient plea deal and what he viewed as corruption and conflicts of interest in the US Attorney’s Office. Therefore, Plaintiff decided to draft a letter to Judge Englehardt, presiding over the case, detailing Plaintiff’s concerns over the happenings in the US Attorney’s Office.”

The plaintiff, former FBI Agent Michael Zummer, alleged in the suit that the FBI retaliated against him for writing the letter.

Koppel, who is arguing for the federal government, initially tried to attend a hearing in the case virtually, but his request was denied. Koppel, the father of two young children, wrote in a motion Reuters obtained that traveling from Washington, D.C. where he resides to the hearing in New Orleans would require “extensive close contact with a large number of people at a time when COVID-19 community transmission is high and much remains unknown about the omicron variant.”

He continued in the motion:

3. Counsel for the government also has personal reasons to minimize potential exposure to COVID. In particular, the undersigned has two young children who are not yet eligible to be vaccinated. Although counsel for the government is fully vaccinated, the prevalence of breakthrough infections from the omicron variant creates a considerable risk that he could become a carrier for infecting his children.”

The court’s response was: “IT IS ORDERED that appellee’s unopposed motion to participate in oral argument remotely is DENIED.”

Listen to the full hearing:

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