The Trial of Chief Justice Roy Moore
Here is a copy of the court transcript of the trial
of Chief Justice Roy Moore (Page 2 of 2)
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HON. THOMPSON: Okay. MR. PRYOR: Your Honor, I would like to have one housecleaning measure taken care of. HON. THOMPSON: Okay. MR. PRYOR: The last exhibit that the Chief Justice offered is a House Appropriations Bill that is now pending in the United States Senate, and I just wanted the record to accurately reflect that that is a bill -- an Appropriations Bill that passed the House. It has not passed the Senate of the United States. It has not become law. We do not object to its admission. We just wanted the Court to be aware of its exact status. Do I need to repeat it? HON. VOWELL: Do you agree with that? MR. JONES: Yes, sir. I haven't -- I can verify that it has passed in the House, so that's fine with me. Yes, sir. One other thing, Your Honor, I had some more copies of these I am going to give to the Clerk. This is an exhibit we have already entered and that's just -- makes copies for everybody. HON. THOMPSON: Thank you, Mr. Jones. Could we have the witness return to the stand. MR. JONES: He was -- He is on his way back, Your Honor. There he is. CROSS-EXAMINATION BY MR. PRYOR: Q: Good afternoon, Mr. Chief Justice. A: Good afternoon, Mr. Attorney General. Q: Mr. Chief Justice, I believe you testified on direct examination that you did not remove the monument because to do so would require you to violate the First Amendment, your oath of office, and the Ten Commandments? A: Yes, sir. Q: While the Glassroth case was pending in the federal courts after you were sued in the U.S. District Court for the Middle District of Alabama, you had attorneys represent you in that court; isn't that right? A: Yes. Q: Do you recall that they presented arguments on your behalf in those courts? A: Yes. Q: One of the arguments that they made on your behalf was that the monument was not a law respecting an establishment of religion in violation of the First Amendment; isn't that right? A: Yes, sir. Q: You made that argument in the District Courts, didn't you? A: Yes. Q: And you made it in the Eleventh Circuit, didn't you? A: Yes. Q: And you made that argument in the Supreme Court of the United States, didn't you? A: Well, we submitted that on -- Q: Right. A: Well, we asked for a petition for a writ of certiorari on other grounds, in other words, that they had on the part of a "Lemon test," but that was an argument we would have made -- Q: Right. A: -- in the United States Supreme Court. Q: Right. You asked the Court -- the Supreme Court of the United States to hear -- A: Yes. Q: -- your case and to hear that argument; isn't that right? A: Yes. Q: The District Court disagreed with your argument; isn't that right? A: Yes. Q: And the Eleventh Circuit disagreed with your argument? A: Yes. Q: And the Supreme Court of the United States decided not to hear your case; isn't that right? A: Yes. Q: You also presented an argument to the District Court about your oath, didn't you? A: Yes. Q: And you presented that argument in the Eleventh Circuit, didn't you? A: I did. Q: And in your petition to the Supreme Court of the United States, you asked them to hear that argument, didn't you? A: Yes. Q: And each of those -- well, let me start first. The District Court disagreed with that argument; isn't that right? A: Yes. Q: And the Eleventh Circuit disagreed with that argument? A: Yes. Q: And the Supreme Court of the United States decided not to hear your case? A: Yes. Q: Finally, as to your argument that the injunction violated the Tenth Amendment, you presented that argument in the District Court, didn't you? A: Yes. Q: And you presented it in the Eleventh Circuit, didn't you? A: I did. Q: And it was one of the points that you made in your petition to the Supreme Court of the United States when you asked them to hear your case, wasn't it? A: It was a writ of mandamus, yes. MR. HARRIS: Excuse me, sir? A: It was a writ of mandamus. I think that it was a -- Q: And the District Court disagreed with your argument; isn't that right? A: Yes. Q: And the Eleventh Circuit disagreed with the argument; isn't that right? A: Yes. Q: And the U.S. Supreme Court decided not to hear your appeal? A: Yes. Q: Now, earlier you also testified, I believe, that when the mandate was returned to the District Court, that it was your understanding that you should pursue the appellate process and the District Court should not enter an injunction; isn't that right? A: Well, repeat that again, please. Q: It was your understanding that, when the mandate came back to the District Court, that you were to pursue your appellate process -- A: Yes. Q: -- and the District Court was not to enter an injunction of the kind that it entered on August 5th; isn't that right? A: Well, the District Court had already entered an injunction, but they had stayed the injunction and there was a stay in effect when the mandate came down. Q: But you didn't think that the District Court should enter the injunction that it did on August 5th? A: Not lift the stay. Right. I did not think that they should have lifted the stay to impose the injunction after the mandate came down. Q: Okay. You asked, though -- After the August 5th injunction was entered by the District Court, you asked the District Court to stay that injunction, didn't you? A: After the August 5th -- Q: Yes. A: -- came down? Q: Yes. A: No. No. The District Court asked us if we had an objection, and we registered an objection. I believe that's what you are talking about. Maybe I am confused. But after the mandate came down, the District Court on -- MR. PRYOR: May I approach the witness, Your Honor? HON. THOMPSON: Sure. Q: I'd like to show you, Mr. Chief Justice, what has already been admitted into evidence as JIC Exhibit Number Ten, an order of the United States District Court in the Middle District of Alabama dated the 18th of August 2003. A: Right. Q: And do you -- If you would like, take a moment to look at it. Does that appear to be an order denying a request by you to stay the injunction of August 5th? A: Okay. Okay. Sure. This is -- This is the motion to stay. Okay. I've got my times crossed out. I thought you were talking about after the mandate and about the conference that the Court had. This is a motion to stay. Q: Right. A: Correct. Q: And the District Court denied your motion to stay the August 5th injunction? A: Yes, they did. They did. And then it went to the Eleventh Circuit. They denied it, and then the United States Supreme Court refused to stay the mandate. Q: Well, they actually denied an application for a stay -- A: On the mandamus. Q: -- of the injunction -- A: Yes. Q: -- on August 20th? A: Yes. August 20th is the very day that he had originally set. Q: The deadline -- A: I understand what you are talking about. Q: That's right. The deadline was set by the August 5th injunction? A: Sure. I was speaking earlier about the August 4th conference call. Q: Sure. A: And I thought that's what you were talking about. Q: Okay. Mr. Chief Justice, you stand by your testimony of August 22nd of this year before the Judicial Inquiry Commission that you would do it again, don't you? A: I would do everything that I have done again. Yes. I mean, what I have done is -- applies to the law. If that's -- I see what you are talking about when I said -- would I do it again. Q: Well, as you know, we have admitted into evidence the transcript of your testimony. I just -- I have the shorthand reference. I just wanted to know whether you stand by that testimony of that day? A: I stand by that testimony of that day, and I have not reviewed it but -- Q: Well, if you would like to review it, you can. A: If I may. Q: Sure. A: So that we can know -- here it is. Is this the whole thing? MR. JONES: That's -- That's the paragraph -- excuse me. That's the paragraph where the phrase he has just referred to came from. A: Okay. This -- Q: There's the entire transcript, Mr. Chief Justice. A: Well, if it's possible for me to read this -- Q: Sure. A: May I read the whole thing? Q: Certainly. A: Because I think -- I think it's important to know when I said I would do it again. "Chief Justice Moore, we welcome you here. We know that these have been busy times for you. We appreciate your presence here today." Q: You want to read the entire transcript? A: Well, I think -- Q: I don't mind you reading it, Mr. Chief Justice, but I would ask that you just read it to yourself to speed things along. HON. THOMPSON: The transcript has already been stipulated to. It's already into evidence. A: You know, I didn't want to read the whole transcript. I wanted to read what I said, and this is the whole transcript of what Mr. Jauregui said. So -- Q: Okay. A: If I may read this paragraph. HON. THOMPSON: Please. A: I am upholding my oath. I have nothing to apologize for. I'm upholding the First Amendment. I am upholding the Constitution of Alabama, and we were too ashamed to acknowledge God. When we let a federal judge come in and tell us -- call it the "rule of law," that we can't acknowledge God as the Justice System says we must, as the Constitution says we must, then we have got a problem. I did what I did all the way through, not from what you read in the papers, not from what you imagine about politics or religion or forcing my beliefs on somebody else. I did what I did because I upheld my oath, and that's what I did. So, I have no apologies for it. I would do it again. I didn't say I would defy the court order. I said I wouldn't move the monument, and I didn't move the monument, which you can take that as you will. But, you know, I think you have to have respect for the Court, but I also have respect enough for the Court to tell them when they have no jurisdiction in this matter under the Tenth Amendment of the United States Constitution, which declares that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In other words, the establishment of the Justice System doesn't belong with the federal government in Alabama. One more: But in any event, I respect you guys and ladies -- and that's my statement. If you have no question -- if you have a question, I will be glad to answer it. And that was it. Q: And you stand by that testimony -- A: Yes, sir. Q: -- Mr. Chief Justice? And -- And your understanding is that the Federal Court ordered -- ordered that you could not acknowledge God; isn't that right? A: Yes. Q: And if you resume your duties as Chief Justice after this proceeding, you will continue to acknowledge God as you have testified that you would today -- A: That's right. Q: -- no matter what any other official says? A: Absolutely. Without -- let me clarify that. Without an acknowledgment of God, I cannot do my duties. I must acknowledge God. It says so in the Constitution of Alabama. It says so in the First Amendment to the United States Constitution. It says so in everything I have read. So -- Q: The only point I am trying to clarify, Mr. Chief Justice, is not why, but only that, in fact, if you do resume your duties as Chief Justice, you will continue to do that without regard to what any other official says; isn't that right? A: Well, I'll do the same thing this Court did with starting of prayer; that's an acknowledgment of God. Now, we did the same say thing that justices do when they place their hand on the Bible and say, "So help me God." It's an acknowledgment of God. The Alabama Supreme Court opens with, "God save the State and this Honorable Court." It's an acknowledgment of God. In my opinions, which I have written many opinions, acknowledging God is the source -- a moral source of our law. I think you must. Q: You bring up opinions. Sometimes you've written dissenting opinions, haven't you? A: Yes. Q: And sometimes you've been the only member of the Supreme Court of Alabama to write a dissenting opinion; isn't that right? A: Absolutely. Many times. There is only one dissenting in all the courts. That's a -- and many times one judge will dissent and others not. Q: And if you write a dissenting opinion and the other eight associate justices have another opinion, when a case returns to the Circuit Court, which opinion is the Circuit judge supposed to follow? A: With the majority. Q: Thank you. MR. PRYOR: That's all of my questions. HON. THOMPSON: Thank you, Mr. Pryor. MR. PRYOR: Respondent? MR. JONES: Nothing further. Nothing further from the Chief Justice. HON. THOMPSON: Thank you. Chief, you may step down. Do any members of the Court have any questions for this witness before he is excused? HON. VOWELL: I have a question. Mr. Chief Justice, I am afraid that there's some part of your testimony that I don't quite understand. You say that you don't intend to violate the Court order; is that correct? CHIEF JUSTICE MOORE: I don't -- sir, say it again, please. HON. VOWELL: Well, let me state it more clearly. If you return to your office, would you follow the injunction, which is a final injunction issued by the United States District Court? CHIEF JUSTICE MOORE: The injunction was to move the monument. The monument has been moved. You can't follow something that's already been done. HON. VOWELL: If you return, what, sir, would you do with the monument? CHIEF JUSTICE MOORE: Well, I certainly wouldn't leave it in the closet out of the view of the public. I certainly wouldn't -- wouldn't hide the Word of God when it's an acknowledgment of God. Exactly what I would do with it I haven't decided. HON. VOWELL: If you ordered -- CHIEF JUSTICE MOORE: It wouldn't stay in the monument -- I mean, in the closet, I will assure you that. HON. VOWELL: Would you put it back in the rotunda from which it was removed? CHIEF JUSTICE MOORE: I wouldn't -- I haven't decided what I would do with it. HON. VOWELL: Well, I think you should let us know that. It seems to me a very important issue as to whether if you would return to office you would obey the Court order to remove it. CHIEF JUSTICE MOORE: Obeyance of the Court order was to remove it from where it was. It has been removed. There would be nothing to obey. Now, what I would do with the monument I haven't even thought about it, quite frankly, except I would not leave it in a closet. I have not entered any ideas in my mind of where I would put it or what I would do with it. HON. VOWELL: I see. CHIEF JUSTICE MOORE: But I would not leave where it is. MR. HOWELL: Thank you, sir. HON. THOMPSON: Any additional questions from the Court? (No response). HON. THOMPSON: Thank you, Mr. Chief Justice. Respondent may call its next witness. MR. JONES: That's all we have, Your Honor. HON. THOMPSON: You rest? MR. JONES: Yes, we rest. HON. THOMPSON: Any rebuttal? MR. GIBBS: No, sir, Your Honor. HON. THOMPSON: Okay. You may proceed with closing arguments. MR. HARRIS: Excuse me one moment. (Thereupon, a discussion was held off the record.) MR. GIBBS: May it please the Court. In this -- In this case, the facts of what happened here are clear. In this case, Chief Justice Roy Moore participated in lengthy litigation in the United States District Court, in the Middle District of Alabama, in the Eleventh Circuit and sought review in the United States Supreme Court on an issue involving the Ten Commandments monument in the rotunda of this building. He litigated, he raised all the claims that he has -- that he had to raise, and he lost. The exhibits that we've presented in evidence here showed the judgment of the District Court at the various times, the injunction, careful consideration given to the arguments raised by the Chief Justice, the Eleventh Circuit in consideration they gave to these arguments, and then the United States Supreme Court's refusal to hear the case. It is clear that when the case came back to the Middle District in August of this year and the injunction was entered that at that point Chief Justice began -- that Chief Justice Moore began to violate the Canons of Judicial Ethics. You have only to look at this statement of August 14 of this year. And I am reading from page four, "As Chief Justice of the State of Alabama, it is my duty to administer the justice system of our state, not to destroy it. I have no intension of removing the monument of the Ten Commandments and the moral foundation of our law. To do so would, in effect, result in the disestablishment of our system of justice in this state. This I cannot and will not do." This is the statement -- the typed statement that he issued on August 14th. You saw the taped statement -- the tape of the statement that he gave in which he said the same thing. So, on August 14th of this year, Chief Justice Moore publicly, vehemently stated that he would -- he had no intention whatsoever of obeying a court order, a court order entered in a case where he had been a litigant, had had the opportunity to raise each and every claim that he wanted to raise, where he was -- his case was considered, not just by one judge in the Middle District, but by three judges of the Eleventh Circuit, and then the United States Supreme Court decided they did not think the case was worthy of consideration. On August 14th, he made a public statement that he would not follow the law. Then when the deadline from the injunction entered by the Middle District came and went on August 20th of this year, the Chief Justice did not do what he had been ordered to do in a lawful, valid, unstayed injunction. He -- On the twenty-first, made another statement. And you saw that statement, the JIC Exhibit Nineteen, his written statement -- typed statement of August the 21st, again, shows his refusal, that his refusal was deliberate, that he had no intention -- had never had any intention of complying with the order of the Middle District to remove the monument. And that intent is supported by his actions, or rather his lack of action, because the day to remove the monument came and went and it stayed -- and it remained unmoved. There was a suggestion in opening statement about how Chief Justice Moore was never found in contempt of court. That was through no action taken by Chief Justice Moore. In its order, the Middle District had talked about imposing fines in a geometric progression on the State of Alabama, and in order to avoid that, not Chief Justice Moore, but the other justices on the Alabama Supreme Court acted to prevent a contempt finding, but it is clear that even absent a contempt finding, Chief Justice Moore never did anything to come into compliance with that court order. His -- The fact that he was not found in contempt is not relevant here because by his actions Chief Justice Moore displayed that he had no intention of ever complying with the law as is required by the Canons of Judicial Ethics. A judge is required to comply with the law. And then in his appearance before the Alabama Judicial Inquiry Commission on the twenty-second he said -- again, he showed that his -- in his -- that he was unrepentant. That he did not and would not and he has not today acknowledged that he had done anything wrong, that he had any duty to follow the law, his duty to follow the Court order. In fact, he says -- and he just read it to the Court -- he would do it again. He would do it again. A judge who publicly, repeatedly states that he is not obliged to follow a judge's order, a court order, that has not been stayed, despite his efforts to obtain stays from every level of this judicial system, a judge who says that is in violation of that Canon which requires a judge to comply with the law, at a minimum, is in violation of that Canon. There's some suggestion that he had -- the ability to somehow rely on the language that -- I think Mr. Jones elicited about the -- the Eleventh Circuit opinions about the -- at the appropriate time, or there will become a time when he'll be required to comply with the law -- when the time comes, that he will have to comply with the law. Well, when he went back to the district judge in August, and on August 18th, he asked for a stay, and he didn't get a stay. Then he went to the Eleventh Circuit and he asked for a stay, and he didn't get a stay, and the Eleventh Circuit refused to recall the mandate. Then he went to the U.S. Supreme Court to get a stay, and they refused to give him a stay. It was clear by then -- it could not have been more clear -- that when -- the time was now to comply with the law. The time was now when you can't get a stay and when you didn't even ask for a timely stay from the Eleventh Circuit, after they had initially ruled against him. So, when you go back and you attempt to get a stay from the District Court, from the Eleventh Circuit, the very court that -- whose opinion has the language about while the appellate remedies continue, when you go back to that court and they don't give you the stay, and you go to the U.S. Supreme Court and they don't give a stay, at that point it is clear that the time -- in the Eleventh Circuit's opinion, when Judge Carnes talks about the official will have to follow the law, it is clear that at that time that's the time to do it. Now is the time. You can't -- you have a valid order, it's not stayed, that's the time to follow the law. And he didn't, and he had no intention of doing it. You can look at his August 14th statements, and he didn't do what the judge told him to do. And it -- Then he goes so far as, when he appears in front of the Judicial Inquiry Commission to say, "I would do it again." So, those are the facts that are before this Court. So the question then becomes -- the charges in this case -- the six violations, the first is a violation of Canon 2A, which requires that the judge respect and comply with the law. It's clear that that -- that Chief Justice Moore did not respect and comply with the law in this case. The second violation that's alleged is a violation of Canon 1, which requires that a judge uphold the integrity and independence of the judiciary. This, like the remaining charges of the Canon violations in this case, concern -- Chief Justice Moore's actions do not occur in a vacuum. Chief Justice Moore's actions in refusing to comply with the law do set an example. They do have an effect on the public. His -- His defiance, his refusal to follow the Court order in this case, was very public. And that public refusal to follow the Court order undercuts the entire working of the judicial system. It undercuts the ability of the courts to do business. If the Court's order is -- is not an obligation, but a matter of choice -- I appeared in front of a judge once, and I had the -- lacked the wisdom to, at some point, take issue with one of his rulings after he had ruled, and he informed me rather quickly that, you know, Mr. Gibbs, it's a ruling, not a negotiation. Now, this is an order, not a negotiation. A Court issues an order to a litigant, that litigant must do as told, unless he can obtain relief by appeal; and that's what Chief Justice Moore tried to do in this case. He was unsuccessful. But a losing ligament must obey an order of the Court. When you have as an example the Chief Justice of the judicial system -- the head of the judicial system who is not obliged to follow a court order but can choose, it's optional whether to obey a Court order or not, then what message does that send to the public, to other litigants, to people who rely on the judicial system for relief? Well, the message it sends is, well, if you don't like the Court order, you don't have to follow it. Now, that absolutely undercuts the integrity and independence of the judiciary. It absolutely violates the Canon 1 requirement that a judge must observe high standards of conduct so that the integrity and independence of the judiciary may be preserved as charged in the complaint. And the fourth violation is that the Canon 2 requirement that a judge avoid impropriety and the appearance of impropriety in all of his activities, that Canon 2A requirement that a judge conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. And the last is the Canon 2 violation that the judge avoid conduct prejudicial to the administration of justice, which brings the judicial office into disrepute. I submit to you that all those Canons -- all those Canons are violated by Judge -- Chief Justice Moore's actions in this case because Chief Justice Moore's actions in this case undercut the ability of the judicial system to do its work by issuing orders and expecting those orders to be followed, not -- by the losing litigant. If that conduct -- if conduct that says that an order is an option, it's not an order, it's not binding, is the rule, then it would have -- it will have disastrous effects on the judicial system as a whole. And it is that, the failure to comply with the law as is required by the Canons, and the devastating effect of this example from the highest official -- the highest official in the judicial system, it is that example that violates -- that shows the violation of these other Canons. Again, what happened here -- what happened here is clear. Chief Justice Moore had a full and fair opportunity to litigate the issues in this case just like many other litigants, just like many other litigants. He lost. Maybe he was right. Maybe he was wrong. But he had a trial. He had an opportunity to get it reviewed and he lost. A losing litigant doesn't have a choice about following a court order. That order is binding. Chief Justice Moore attempted to get relief from the order. He was unsuccessful. In order to comply with the law, in order to comply with the Canons of Judicial Ethics, he had no choice but to follow the order. And when he chose not to follow the order, then he violated the Canons of Judicial Ethics. And for that, this Court must hold him accountable and should find that he has violated the Canons as charged in the complaint in this case. Thank you. HON. THOMPSON: Thank you, Mr. Gibbs. Respondent. MR. JONES: May it please the Court, Chief Justice Moore, Attorney General Pryor, my fellow counsel. As I look around, I have to wonder amongst all these right and learned attorneys what a lawyer from the briar patch down in Luverne is doing here. It's overwhelming. But I can say this, I can say this, "God has chosen this time and this place so that we can save our country and save our courts for our children." Now, I would like to take credit for that, but I must give credit to that to the speaker who said that, and that was Attorney General Bill Pryor on April the 13th, 1977, at a "Save the Ten Commandments Rally." But -- HON. THOMPSON: Would you please refrain from clapping or making any other gestures. You may proceed. MR. JONES: Thank you, Your Honor. I do agree that this is the time. Now, you know, it's hard for an attorney like me to make a closing without telling a story. So, there's a story that I think is very appropriate here. It is a story of a man who was a tight rope walker, and he decided he was going to walk a tight rope between two tall buildings. And so, of course, it was publicized that he was going to do this, and when he got there, there was a crowd. So, he climbs up on the building, and as he gets to the top of the building the crowd is down there, and he looks down at the crowd and he says: Do you believe that I can walk across this tight rope? Do you believe I can do it? The crowd yells: We believe you can do it. So, he gets on the tight rope and he walks across to the other side. When he gets to the other side, he looks down and he says: How many of you believe that I can ride a bicycle across this tight rope? Of course, the crowd goes wild and says: We believe you can do it. So he, gets on his bicycle and he goes back across to the other side. He gets to the other side and he looks down at the crowd and he says: How many of you believe that I can go across this tight rope in a wheelbarrow? And, of course, they all say: We believe, we believe you can do it. And he says: Okay. Says: Which one of you want to get into the wheelbarrow? Now, I say that because of this: We are here today on a very important issue. But let me say this: As I look and see things across this state, when we run for political office, we prominently display what church we go to, or how many years we have taught Sunday School, we prominently display that on our literature. When we are elected to office, we take an oath, even as judges here on this court took, that says, you will fulfill your duties, so help me God. When we take that oath, we place our hand on a Bible, not any other document, a Bible. When our courts begin, just like we did today, they begin it in prayer. Not just this court, but the court that I am honored to serve in Crenshaw County does it every time. When our legislators begin, they begin their legislative sessions with a prayer. Every year -- every year our appellate courts attend a church service called the "Red Mass," asking for the blessing of the -- of God on the Court. Our currency promptly states, "In God we trust." The United States Supreme Court, when they begin their sessions, they say, "God save the United States and this Honorable Court." Our Pledge of Allegiance, and I have to -- I have to admit, you know, I didn't always know how to say the pledge of allegiance. When I first joined the Rotary Club down in Luverne, when I was a much younger person, a very nice fellow down there by the name of Ed Turner took me aside and explained to me how you say the Pledge of Allegiance. He said, look, you don't ever say it any other way but "one nation under God." He said because you don't ever want to separate God from the nation. The Luverne Rotary Club still says the pledge that way today. We said it that way last Monday. So, we are here today, standing on the ground, looking up, looking up, and the question is, who is going to get in the wheelbarrow, and we are here because somebody finally got in the wheelbarrow. Chief Justice Moore finally got in the wheelbarrow. That is what he has done. Now, counsel for the Judicial Inquiry Commission has characterized what he has done as supporting anarchy, a license for anybody that wants to to go out and disobey an order. And you've read the trial brief and what they have said today, but we have cited in our trial brief an article by Mr. Tuomala, and I hope I am pronouncing that correctly. That's who I think it is. And he in there -- and I just want to refer to it real quickly. He quotes in there, Brigadier General Paul K. Van Riper, and it's an address he made upon assuming command of the Second Marine Division. You see just like what he's -- what we have just heard, the military, above everybody, depends on what? Orders. You can't think of an institution in our society that is more dependent on orders than the military. This is what the Brigadier General said. He said, "For most of us these four values [faith, family, Constitution and Corp] will normally be in balance, and we need make no decisions in regard to their priority. Occasionally, however, conflicts can arise. If it does, use the order in which I have presented them to make a judgment. For example, if our Corps asks you to do something that would violate your oath to support and defend the Constitution, don't do it. Or if the Nation asked you to act in a manner which violates your faith, don't do it. Those who live by faith, remember family and friends, defend our Nation, and honor the Corps will be a source of pride to all who stand in and behind them on the frontiers of freedom." The same -- the same applies here. The same applies here. There will not be anarchy. There won't be this mass refusal to obey court orders. That won't happen. In fact, I would suggest that possibly, possibly there may even be more respect for the judiciary because of a man with conviction and conscience that finally got in the wheelbarrow. Now, counsel for the Judicial Inquiry Commission have basically said there is no other remedy for what the Chief Justice has done other than removal. As I read their trial brief and have heard their arguments here today, as I understand it, they think that is the only appropriate remedy. They have cited you a number of cases in your trial brief, a number of cases. I've made copies of those cases, five of them, five of them. And I would ask you to please read those cases. Please read those cases and see what they have cited to you and the conduct that took place in those cases, and compare those, if you would, to the cases before you today. Now, they may correct me, and I am sure they will if I am wrong, but I have not found a single case where a judge was disciplined for disobeying a single court order. Not one. And they haven't cited you one. The difference between this case and those cases is substantial, substantial. Please read those cases. There's not any dishonesty here. There's not any neglect of duties here, none of the things that these other judges had in their cases. There's been no history of disciplinary proceedings, nothing like that. This is a totally different and separate case. And if the Court would indulge me, I know we don't have the opportunity, as is the procedure of this court, to come back after your finding and give you any evidence in mitigation, or otherwise, of whatever you may do. But I do want to point out to you a couple of cases that have come directly from this Court. I believe the last judge that was removed by the Court of Judiciary was in 1999. That case involved a judge who did several things, and I will just list them for you. He made incorrect statements to investigators. He presented a false, worthless, and misleading deposit slip to State examiners to try to cover a $23,000 charge-back they had made to him. He cashed eight personal checks from funds in his own office that turned out that his checks were returned because they were insufficient, and he did not pay those checks until three years later when the examiners found it and brought it to his attention. The judge also failed to properly maintain his office. And once that was brought to his attention, he made absolutely no effort whatsoever to correct those deficiencies. Now, that judge was the last judge that was removed from office, and even with those facts, the Court was not unanimous that that judge be removed. I would also point out one other case to the Court, and that is the Court of Judiciary Case Number 26. In that case, a judge was charged with inappropriately touching females under the age of 21 under his jurisdiction as a district judge. He was also accused of inappropriately touching females over the age of 21 that were employees in the courthouse. That was the charges against him. He was -- he was found to have violated Canons 1, 2, 2A and 3A. That was the finding of the Court. His punishment was suspension without pay for six months. That was what his punishment was by the Court. Your Honors, we believe that Justice Moore has not violated the Judicial Canons of Ethics. He has been suspended -- disqualified from his office for almost 90 days now. We would ask Your Honors to please let him go back to the position that he was elected to do. At this time, I would call on Justice Butts to finalize our closing. MR. BUTTS: Your Honors, Chief Justice Moore, Attorney General Pryor, fellow counsel. You know, so many times in this life we just seem to be completely lost. Is this one of those times? After this verdict when you are alone with your thoughts, can you answer and be satisfied with your answer to such questions as: Did I serve my God today? Did I do the right thing today? How will history view my actions? You may be sure history will judge us all. You may be assured that as President Kennedy once wrote, "Only the very courageous will be able to keep alive the spirit of individualism and dissent which gave birth to this nation, nourished it as an infant, and carried it through its severest test to the attainment of its maturity." Throughout history, there are many examples of courage, or as Ernest Hemingway liked to call it "grace under pressure." You need look no further than the story of Senator Edmund Ross of Kansas who was elected as a radical to the United States Senate. And when the impeachment of Andrew Johnson occurred, after he succeeded President Lincoln after his assassination, Edmund Ross was the one Senator that kept Andrew Johnson from being removed from office. Senior Ross was quoted as saying, but prior to casting his vote, "I looked down into my open grave." Yet, Senator Ross has given a place of honor in standing alone with his convictions and with his conscience in doing the right thing. So, how do you Judge Roy Moore? You cannot doubt his courage. You cannot doubt his love of God. You cannot doubt his love of country. You cannot doubt his love of family. You cannot doubt his faithfulness to his oath of office. So, how did we arrive here at this moment in time? The Judicial Inquiry Commission pursued Roy Moore for ten years until it finally ran into ground with the charges he faces today. The Attorney General would have you believe that this is only a simple issue, that an order given by a man, a federal judge to move a granite monument from public view. The Attorney General would say to you that the rule of law requires you to obey that order. If you believe the Attorney General in that argument, then this case can go no further. You will then have convicted Roy Moore. At that point, the only thing left for you to decide is his punishment. But if you are true to yourselves, you will examine Roy Moore, the man, and Roy Moore, the public official. Keep in mind, as you examine Roy Moore, his actions that lead him here today are not only the results of his beliefs but also directly the results of actions by Federal Judge Myron Thompson. Please also bear in mind that Judge Thompson made the statement that he, Judge Thompson, cannot define religion. That, in fact, it would be dangerous to define it. What led us here today is simple: How can an individual who cannot define religion hold that Roy Moore is guilty of the establishment of religion? If Roy Moore is then true to his oath, how can he be guilty of any ethical violation? Chief Justice Moore's defense is quite simple: (1) the order of Myron Thompson was unlawful, because it placed Chief Justice Moore in a position of violating his oath, or audibly risk being held in contempt of court; (2) Chief Justice Moore's oath under the Constitution requires him to acknowledge God as the moral foundation of our law. Adherence to his oath placed him at odds with the injunction of Federal Judge Myron Thompson. Justice Moore's oath is to the Constitution, not to any one man. To the prosecutions' way of thinking, a federal judge has issued a lawful order to remove a display of the Ten Commandments because it violates the establishment of religion clause of the Constitution. By the prosecutions' thinking, since a federal judge issued an order, then it must be a lawful order to remove the monument display. The problem with the prosecutions' thinking and those that agree with him, is simply that they have entered into and share the belief that the opinion of judges about the meaning of the Constitution and not the Constitution itself is the law of the land. As a result, if you believe that way, then the prosecution believes that one's oath of office is an allegiance to the judiciary, rather than to the Constitution. This subjective interpretation of oaths by the prosecution changes the oath from one of allegiance to the law to an oath of allegiance to an office holder, in this case, a federal judge. Roy Moore took an oath that, quote, "I will support the Constitution of the United States and the Constitution of the State of Alabama so long as I continue to be a citizen thereof, and that I will faithfully and honestly discharge the duties upon which I am about to enter, to the best of my ability, so help me God." As Professor Jeffrey Tuomala has so stated, "There's an essential difference between an oath promising to support the Constitution and an oath of allegiance to a person or persons." For example, compare the military oath of enlistment that a subject of the Queen of England, where they have the oath of enlistment, with what the oath of enlistment that a citizen of the United States swear upon military service. A Canadian, for example, states, "I do swear that I will be faithful and bear true allegiance to Her Majesty, Queen Elizabeth the Second, Queen of Canada, her heirs and successors according to law, so help me God." An American, on the other hand, states, "I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic. That I will bear true faith in allegiance to the same, and that I will obey the orders of the President of the United States and the orders of the officers appointed over me according to regulations and the Uniform Code of Military Justice, so help me God." The point is, that a servant or subject of Canada or England has no duty of individual judgment. Their oath is to the Queen herself, so that in that instance one can more easily justify compliance with an unlawful order of the Queen that goes contrary to conscience and law, because the oath is one of the allegiance to the Queen and not to the law. What makes this so striking and instructive is that the prosecution has been quoted as saying that the Ten Commandments is the cornerstone of American law. The key to understanding the prosecution's stance is they believe that courts make laws and, by extension, that the official's oath of office is one of allegiance to the judiciary and not to the Constitution itself. The basis of the six charges against the Chief Justice is not that he violated the First or Fourteenth Amendments of the United States Constitution or of any law in active pursuant thereto, but rather that he failed to comply with an existing and binding court order directed at him. All six charges are basically the same. What is important to keep in mind is that the essence of the charge is a violation of a court order. The charge is "failure to comply with the court order." The mistake that has been made here is simply that the Judicial Inquiry Commission has equated a court order with law. Failure to comply with an order is illegal, only if the order is itself illegal -- I'm sorry. Failure to comply with an order is illegal only if the order itself is legal, just as conviction for violating a law is valid only if that law is valid. Every 18-year-old soldier, sailor, airman and Marine, who has ever worn a uniform, understands the difference between a lawful and an unlawful order. He or she knows that they may not be convicted under the Uniform Code of Military Justice for failure to obey an unlawful order. The difference between the Attorney General and the Chief Justice does not appear to be in their understanding of the First Amendment. It appears to be, primarily, a difference in their view of the law-making power of courts and the meaning of the oath. Chief Justice Moore's position is that he has sworn an oath to uphold and defend the United States Constitution and the Constitution of the State of Alabama. In partially fulfilling his duty, the Chief Justice placed a monument memorializing the moral foundation of American law in the rotunda of the judicial -- Alabama Judicial Building. Additionally, several provisions of the Alabama Constitution acknowledged the law of God as the foundation of law in Alabama. The Constitution begins with these words in the Preamble, "In order to establish justice, insure domestic tranquility and secure the blessings of liberty to ourselves and to our posterity, invoking the favor of Almighty God, do ordain and establish the following Constitution: All men are equally free and independent. They are endowed by their creator with certain inalienable rights, so help me God." By Constitutional provision and statute, the Chief Justice is the head of the judicial system in Alabama. It is his duty to make sure that judicial personnel have a proper understanding of the law, and that they administer justice properly. The Canons of Judicial Ethics, under which the Chief Justice is being prosecuted, placed additional duties on all judges to properly administer the law. For example, all judges are supposed to participate in establishing, maintaining, and enforcing high standards of conduct. Judges are encouraged to speak, write, lecture, teach and participate in other activities concerning the law of the legal system and the administration of justice. The purpose of ethical conduct is not simply to ensure that justice will be done in individual cases, but that the public will be assured of what they have a right to expect. In short, the posting of the Ten Commandments provides the standards of personal conduct for judges and court personnel, the basis for law, and the assurance to the public of the integrity of the system and the rule of law. Thus, the Chief Justice has a duty to expound the law, as does every lawyer in the State of Alabama. The foundation of the civil law is a -- is that standard of justice which is summarized in the Ten Commandments. That foundation is expressly recognized in the Alabama Constitution. When a federal court tells a chief justice that he may not perform his duties as required by law, it is the Federal District Court judge who is violating the law, not the Chief Justice. It's ironic that the very conditions that Chief Justice Moore addressed with the monument -- ignorance and disdain for the moral foundation of our laws, oaths and national creed -- are the very conditions that have led to the charges against him. How ironic. Chief Justice Moore is a graduate of the United States Military Academy at West Point. He is a veteran of the war in Vietnam. He understands the difference between a lawful order and an unlawful order. He knows why it was unlawful during the Vietnam War for Lieutenant Rusty Calley to shoot unarmed women and children, even if he was so ordered by his superiors. He understands the nature of his oath of office. It is an oath sworn before God and man to the Constitution. Failure to acknowledge God actually undermines the very Canons upon which Chief Justice Moore is being tried. The Canons of Judicial Ethics -- please note, the primary purposes of the Canons is to protect the public rather than to discipline an individual judge. Propriety is often in the eye of the beholder. A given individual will find conduct to be within or beyond the bounds of propriety to the extent that the person comports with that individual's own highly subjective views of propriety. The appearance of impropriety standards should be freely applied. Indeed, lack of specificity as to what conduct makes a judge vulnerable to a charge of appearance of impropriety raises serious due process concerns. To allow disciplinary proceedings to evaluate judicial decisions could force judges into ill-defined and standardless lines of propriety and impropriety. Holding such a sword over a judge's head would have a tendency to chill his independence. A judge would have to be as concerned with what is proper in the eyes of the judicial -- disciplinary commission as with what is the just decision. Let me read you one quick quote from a gentleman that I admire. Mr. Doug Phillips has said this more eloquently than I can say it. "The American legal establishment has strange priorities. Nowhere is this more evident than in the way covenant keepers and covenant breakers are treated by the political elites within the system. When a former president of the United States shattered his marriage covenant, disgraced his office, and broke at least two of the Ten Commandments by committing adultery in the Oval Office, and then bearing false witness to the people of the United States, the most trusted and high ranking legislators in our nation found him not guilty of crimes sufficient to remove him from office. When Chief Justice Roy Moore defended all ten of the Ten Commandments, he was charged with ethical violations." The prosecution talks about the Chief Justice being unrepentant. You can only be unrepentant to God, not to man. The Judicial Inquiry Commission takes the position that there is no statute of limitations on unethical conduct for judges. If you have ever received a speeding ticket or stopped for DUI or if you, as a judge, ever stepped on an attorney's private airplane for a golf trip to Augusta or to a Super Bowl game or made a trip anywhere and then sat on that attorney's case, you could be charged with an ethics complaint as early as tomorrow. So, remember, as you judge Roy Moore today, that tomorrow you may yourself be judged. Let me explain in concluding who Senator James W. Grimes of Iowa is. Senator Grimes was one of the Senators that voted against the impeachment of Andrew Johnson. Right before his death, he wrote these words, "I shall ever thank God that in that troubled hour of trial, when many privately confessed that they had sacrificed their judgment and their conscious at the behest of party newspapers and party hate, I had the courage to be true to my oath and to my conscience. Perhaps I did wrong not to commit perjury by order of a party, but I cannot see it that way. I became a judge acting on my own responsibility and accountability only to my own conscience and my Maker, and no power could force me to decide on such a case contrary to my convictions whether that party was composed of my friends or my enemies." And so to the Court of the Judiciary, we have done all we know that we can do to impress upon you that the Chief Justice, being true to his oath, has not committed any ethical violations. As Mr. Jones pointed out to you, the judges that have been tried by this panel, from judges charged with sexual misconduct to only receive six months in suspension, cannot be compared with the Chief Justice who has done nothing morally wrong. He has done nothing legally wrong. He obeyed his oath. He was true to his God and to his oath of office. Please be careful how we judge Roy Moore today. As we turn Chief Justice Roy over to this panel's judgment, remember the words of Harper Lee in To Kill A Mockingbird, "The one thing that doesn't abide by majority rule is a person's conscience." For the respect of all Alabama citizens, for the respect of this country, for the respect of God and all His righteous, find Chief Justice Roy Moore not guilty and restore him to the people of Alabama as Chief Justice. Thank you. HON. THOMPSON: Please. The Attorney General. MR. PRYOR: May it please the Court, Mr. Chief Justice, learned co-counsel. This case presents an all-or-nothing proposition. Either the Judicial Inquiry Commission is right and Chief Justice Moore is guilty and must be removed, or Chief Justice Moore is right and must be exonerated. There is no middle ground. My learned opposing counsel has invited you to read the cases that we have cited to the Court. He has stated that none of those cases involved a judge who refused to obey a single court order. I, too, invite you to read those cases. For none of them involve the highest judicial officer of a state refusing to comply with a federal injunction entered by a Federal District Court, affirmed by three judges of a U.S. Court of Appeals, and where the judge had an opportunity and did ask for stays from that District Court, stay from the Eleventh Circuit, and a stay from the Supreme Court of the United States, all of which were denied. None of those cases involved the highest judicial officer of a state in that context then coming before the Commission and saying, "I would do it again." The stakes here are high because this case raises a fundamental question: What does it mean to have a government of laws and not of men? The resolution of this case will answer that question for three groups of Alabamians: First, an answer must be provided to every judge in Alabama, because the judiciary is an independent, although imperfect, branch of our government. It is staffed by hundreds of trained lawyers who serve the public by administering justice. When an Alabama judge is presented with a controversy that poses a difficult legal problem, the judge must evaluate the law and the facts carefully, and then provide his best judgment subject to the review of other judges. A trial judge can be reversed on appeal, and an appellate judge or justice can be on the losing side of a divided panel. In our system, a judge must respect and follow the final decisions of other judges, even when he is convinced they are wrong. A trial judge with more years of experience and perhaps better judgment than any appellate judge, for example, must follow an order reversing the decision of the trial judge. The answer this Court must provide to every judge in Alabama is that no judge is above the law. Second, an answer must be provided to every public official in Alabama. When we think of the rule of law, one group of public officials immediately comes to mind: Police officers. Thousands of police officers each day enforce the law in the communities of our state. Each officer takes an oath to uphold the Constitution. Consider a police officer who concludes after careful study of that Constitution, and the history of the Constitution which he is sworn to uphold, that the Supreme Court of the United States was wrong in its decision of Miranda versus Arizona. The police officer finds himself in agreement with many judges, law professors and prosecutors, that the Fifth Amendment and the Sixth Amendment to the Constitution were not intended to require a police officer to warn a person under arrest that he has a right to remain silent, and he has a right to an attorney. Should that police officer follow his own view of the Constitution? Or should the officer respect the decision of the Supreme Court and warn an arrestee that he has a right to remain silent? Should the police officer follow his own view of the Constitution in the hope that the unwarned arrestee will confess to the crime? Should the officer risk that the courts will throw out the confession and allow a murderer or a rapist to go free because the police officer followed his own view of the Constitution and failed to warn the arrestee? The answer this Court must provide to every public official, including every police officer is that no official is above the law. Finally, this Court must provide an answer to every citizen who depends on the rule of law to protect our freedom. Each year, the Courts of Alabama hear and decide disputes between thousands of citizens. Fathers and mothers allow Courts to decide the custody of their children. Both the wealthiest chief executive officer and the shareholders of a corporation allow the Courts to determine whether the CEO cheated the shareholders. A permanently disfigured and disabled worker and the most powerful corporation allow the Courts to decide whether the company owes the worker any compensation for his injuries. Everyone of these citizens and thousands more who come before the Courts, must know that the final orders of the Courts will decide their disputes, even if that citizen disagrees with that order. Someone has to lose. And virtually always the losing litigant thinks he was right and the Court was wrong. This Court must provide the answer that no citizen, whether rich or poor, powerful or weak, is above the law. As I mentioned a moment ago, the judicial branch of our government, both our federal government and our state government, as human institutions are imperfect, they sometimes make mistakes, even terrible ones. We correct some of those mistakes on appeal. Sometimes the Appeals Court, even the Supreme Court, gets it wrong, too. Fortunately, our Constitution gives us remedies. I stand by my remarks from 1997, that we are called by God to do what is right. But we are called to exercise our Constitutional rights in fulfilling His will. We can elect law makers, legislators to change the law. We can elect presidents to appoint judges faithful to the law. We, the people, can even amend the Constitution itself. That is what our nation did when it abolished slavery, with the Thirteenth Amendment which overruled the abominable decision of the Supreme Court in Dred Scott versus Sanford. But the refusal of a party to comply with a Court order, whether the Court order is right or wrong, is not a remedy provided by the Constitution. Because Chief Justice Roy Moore, despite his special responsibility as the highest judicial officer of our state, placed himself above the law by refusing to abide by a final injunction entered against him and by urging the public through the news media to support him, and because he is totally unrepentant, this Court regrettably must remove Roy Moore from the office of Chief Justice of Alabama. The rule of law upon which our freedom depends, whether a judge, a police officer or a citizen, demands no less. Thank you. HON. THOMPSON: Thank you, Mr. Attorney General. I would like to thank counsel for their handling of this matter. Everyone has performed quite admirably. I want to thank all the people here in the rotunda for being a participant in the judicial process. The evidence having been heard in this matter, this Court will recess at this time. Mr. Jones, would you like to be heard? MR. JONES: I just want to be sure I hand you those cases, Your Honor, before you leave. HON. THOMPSON: Okay. I'll make sure that happens. We will recess at this time. And we will also attempt to do our best to give you sufficient notice when this Court's ruling has been made and to allow you sufficient time to return to this rotunda -- to this courtroom. At this time, unless there is anything further from the members of this Court, this Court stands in recess, and we will be releasing our decision on this case as efficiently and as expediently as possible. Thank you. (At which time, a recess was taken at 2:45 p.m. and the hearing will be reconvened.) (At which time, the hearing before the Alabama Court of Judiciary was continued at 11:17 a.m. on Thursday November 13, 2003.) HON. THOMPSON: Good morning. As Chief Judge of the Alabama Court of the Judiciary, it is my duty to report to you the decision of the Court. The complete, final judgment of this Court will be received -- released following the synopsis of this judgment. As a reminder, please remember -- please remember that no judge on this Court may comment on this case. The Court of the Judiciary is a constitutionally created Court, the soul function of which is to convene, to hear allegations of judicial misconduct. The case currently before the Court was commenced by the filing of a complaint by the Judicial Inquiry Commission alleging that Roy S. Moore, as Chief Justice of the Supreme Court of Alabama, willfully failed to comply with an injunction issued to him by the United States District Court for the Middle District of Alabama, thereby, violating Canons 1, 2, 2A and 2B of the Canons of Judicial Ethics. Specifically the complaint alleges that Chief Justice Moore failed to uphold the integrity and independence of the judiciary and failed to observe high standards of conduct so that the integrity and independence of the judiciary might be preserved as required by Canon 1; that Chief Justice Moore failed to avoid impropriety and the appearance of impropriety in all his activities as required by Canon 2; that Chief Justice Moore failed to respect and comply with the law and to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary as required by Canon 2; and that he failed to avoid conduct prejudicial to the administration of justice which brings the judicial office into disrepute. These are the issues which are properly before this Court. This Court has neither the authority nor the jurisdiction to decide the correctness of the decisions of the United States District Court or the United States Court of Appeals for the Eleventh Circuit. All of the members of this Court, after serious consideration of the evidence and testimony presented at this trial, find by clear and convincing evidence that Roy S. Moore while in his role of Chief Justice of the Supreme Court of Alabama did willfully and publicly defy the federal court order directed to him. In the American system of justice, the courts are open to all of the citizens of this country. A dissatisfied litigant has the opportunity to appeal an unfavorable ruling. When that person's legal remedies have been exhausted and the rule of law dictates that that person follow the order of the Court, in this case the Chief Justice exhausted all of his legal remedies and was unsuccessful in his attempts to stay the injunction issued by the Federal District Court. In defying that Court's order, the Chief Justice placed himself above the law. To quote the Supreme Court of the United States, "No man in this country is so high that he is above the law. All the officers of the government from the highest to the lowest are creatures of the law and are bound to obey it." This Court finds by unanimous decision and by clear and convincing evidence that Roy S. Moore, in willfully and publicly defying the valid Court order from the federal court violated Canons 1, 2, 2A and 2B of the Canons of Judicial Ethics as indicated in the complaint of the Judicial Inquiry Commission. During the trial of this matter, Chief Justice maintained his defiance testifying that he stood by an earlier statement given to him -- given by him to the Judicial Inquiry Commission in which he stated in part, "I did what I did because I upheld my oath and that's what I did. So I have no apologies for it. I would do it again." The Chief Justice showed no signs of contrition for his actions. Because of the magnitude of the decision with regard to sanctions for the Chief Justice's violation of the Canons of Judicial Ethics was a difficult one for this Court to make. Finding no other viable alternatives, this Court hereby orders that Roy S. Moore be removed from his position of Chief Justice of the Supreme Court of Alabama. This Court is now adjourned. (The hearing concluded at 11:22 a.m.)  ********STATE OF ALABAMA ELMORE COUNTY I, Jeana S. Boggs, Certified Professional Reporter and Notary Public in and for the State of Alabama at Large, do hereby certify on Wednesday, November 12th, 2003, that I reported in the matter of CHIEF JUSTICE ROY MOORE, case No. 33, now pending in the State of Alabama Court of the Judiciary; that the foregoing colloquies, statements, questions and answers thereto were reduced to 21 typewritten pages under my direction and supervision; that the excerpt transcript is a true and accurate transcription of the testimony/evidence of the examination of said hearing by counsel for the parties set out herein. I further certify that I am neither of relative, employee, attorney or counsel of any of the parties, nor am I a relative or employee of such attorney or counsel, nor am I financially interested in the results thereof. All rates charged are usual and customary. This the 12th day of November, 2003. Jeana S. 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