During the previous Congress, some commentators called on the Senate Judiciary Committee, then controlled by Democrats and chaired by Senator Dick Durbin of Illinois, to demand the testimony of Supreme Court Justices Clarence Thomas and Samuel Alito over allegations of ethical breaches, securing their presence by subpoena if necessary.[1] The Committee did not subpoena the Justices, with Durbin citing the likely lack of sufficient votes and worrying that the Senate would not be able to enforce the subpoenas anyway.[2] During the same Congress, Durbin asked Chief Justice Roberts to testify about judicial ethics, an invitation that Roberts declined.[3]
These incidents naturally raised the question of what, if anything, Congress could do to compel federal judges to comply with its investigative demands. One possibility is contempt: Congressional committees can issue subpoenas, and defying a subpoena can be a contempt of Congress. A congressional committee has subpoenaed a sitting Justice before, namely in 1953, when the House Un-American Activities Committee subpoenaed Justice Tom Clark, albeit for testimony about his activities while serving as Attorney General. Clark did not testify but agreed to answer written questions, and the episode concluded without a direct confrontation over enforcing compliance.[4] There is also impeachment. Presumably Congress could impeach a judge for refusal to respond to what it regards as proper investigative demands. But impeachment being as a practical matter almost impossible, using the contempt power seems more plausible. So has a federal judge, or for that matter a state judge, ever been held in contempt of a legislative body?
Although modern courts and commentators appear to be unaware of the episode, this happened in New York in 1871. I learned of it through Platt Potter’s 1871 American edition of the famous nineteenth-century treatise on statutory interpretation by Sir Fortunatus Dwarris.[5] The first edition of Dwarris on Statutes had been published in London in 1830-31, and a much-abridged version was published in this country in 1835.[6] Potter, a New York state judge of some renown, had undertaken to produce an updated edition of the oft-cited treatise featuring American additions and citations. Among the material Potter added to Dwarris was a chapter about parliamentary privilege and the legislature’s power to punish for contempt. In this chapter Potter addresses whether an American legislature had ever held a judge in contempt:
In the whole history of this government, and of the general harmonious workings of its system in the division of its sovereignty into the three distinct and co-ordinate departments of its power, . . . only a single case has occurred, in the nation or in any state, in which a conflict has arisen between them, by which, one of these co-ordinate departments has attempted to coerce another, to wit: one branch of the legislative body, the assembly of the state of New York, attempting to hold the judicial department of the same state, responsible for a claimed breach of privilege of the assembly, in issuing process of arrest by attachment against a member of assembly, for contempt, in the disobedience to a subpoena issued out of a criminal court of original jurisdiction of the said state. The case was novel, and unprecedented. It was the occasion of excitement and interest. . . . The judge appeared [before the legislature] and argued the question in defence of his co-ordinate department of the government.[7]
Interested, I looked to the next page for the account of this clash of competing legislative and judicial privileges, only to find the following:
That’s right, the accused contemnor in the case that Potter’s treatise was about to describe was none other than Judge Platt Potter himself.
The Subpoena Episode
The confrontation arose out of a grand jury investigation in 1870 in Saratoga County, New York. The grand jury sought the testimony, as a witness, of Henry Ray, a member of the Assembly.[8] Ray responded to the grand jury’s subpoena by claiming legislative privilege. The asserted immunity, like other protections for legislators, was part of the law of parliamentary privilege, a law developed through centuries of conflict between Parliament and the Crown, a law partly codified in the U.S. Constitution and incorporated to varying degrees in the law of the American states. Upon receiving Ray’s response invoking privilege, the district attorney applied to Judge Potter for an attachment, which Potter approved, and Ray was arrested and brought before the grand jury to testify.[9]
Learning of this, the state Assembly directed its Committee on Grievances to investigate and prepare a report. Pursuant to that charge, the committee subpoenaed Potter along with the district attorney who issued the subpoena and the deputy sheriff who made the arrest. In addition to questioning them, the committee analyzed the law and historical precedents. In New York, a statute provided that a member “shall be privileged from arrest on civil process during his attendance at the session of the House to which he shall belong, except on process issued in any suit brought against him for any forfeiture, misdemeanor or breach of trust in any office or place of public trust held by him.” The committee relied on this statutory immunity – its theory being that although the grand jury was investigating crimes, the process as to Ray was civil in nature – but it also relied more broadly on the common law of parliamentary privilege. The committee’s report concluded, and the Assembly agreed, that Potter and the others should be “summoned and required to appear before the bar of this House for a high breach of its privilege” and then subjected to what judgment the House deemed fit.[10]
Potter appeared at noon on February 16, 1870. According to a newspaper account, “[Potter] was a tall, venerable gentleman, attired in deep black, wearing an old-fashioned collar, which was encircled by a wide silk cravat. He stood erect, and throughout the ceremony that followed maintained that grave dignity characteristic of the Judges of the old school.”[11] After an initial skirmish over whether Potter could address the Assembly through counsel, Potter spoke in his own defense, a speech that his treatise reprints over some twenty pages.[12]
Potter’s defense is interesting for a few reasons. Potter led with judicial independence: The judiciary “is entrusted with an equal portion of the sovereign power of the state,” and it is “entirely independent” of the legislature. The contempt proceedings, he said, threatened “to overawe” the judges and “destroy their independence.” Potter then proceeded with a defense of his conduct on the merits. He read the state privilege statute to preclude any broader privilege stemming from the common law or practice elsewhere. And the statute did not protect Ray, Potter insisted, because the attachment was not “civil process.”[13] I do not go into the merits of the opposing contentions here, but Potter’s speech and the Assembly’s report are well worth reading, and I hope that highlighting some of the interesting aspects of the episode here will help to recover their understanding of the relevant law and improve our understanding of how interbranch conflicts play out.
At the conclusion of Potter’s remarks to the Assembly, the committee chairman offered a resolution stating that Potter “was guilty of a high breach of the privileges of this House, and censurable therefor; and that he be reprimanded by the Speaker.”[14] There are different accounts of what the Assembly did with this resolution. The Assembly’s compilation reports that there was debate and then an amendment was offered by Assemblyman Thomas Alvord, another member of the committee. Potter’s treatise and some other accounts, however, say that the original resolution “received no support, and was withdrawn.”[15] In any event, Alvord’s proposal was adopted, and it provided that Potter had indeed committed a breach of privilege – a contempt, that is – but that he had done so due to a “mistaken” understanding of the law, not with “intention or desire to interfere with the independence or dignity” of the Assembly.[16] There was no further punishment.
That disposition was not good enough for Potter, and here begins an interesting story of political actors – Judge Potter, in particular – attempting to shape the public perception of these events. Potter, it turns out, had significant political experience and some well-placed friends, and he was prepared for the confrontation. An Albany judge was apparently standing ready to entertain a habeas petition should Potter be arrested. That petition was unnecessary given the Assembly’s discharge of Potter, a disposition that Potter and his allies cast as a way for the legislators to “escape from their awkward condition” without subjecting their faulty reasoning to judicial scrutiny.[17] Potter’s public-relations efforts were helped by the fact that the figure who led the charge against him, the committee chairman, was soon to flee the country in a cloud of corruption, of which more will be discussed shortly.
Platt Potter: Democrat, Republican, Judge
At this point it will be useful to say a bit more about Judge Potter and the political context of the case. Potter was some seventy years old by the time of this confrontation, and he had been involved in politics a long time. Indeed, the state legislature was not foreign terrain for him, as he had served briefly in the Assembly back in 1831, representing Hamilton and Montgomery Counties as a member of the Jacksonian Democratic Party.[18] Potter remained in politics for decades after that stint, eventually playing a role in the state party’s antebellum schisms over slavery. In 1848, when two rival groups of delegates went to Baltimore to represent New York’s Democrats at the national convention, Potter was part of the more anti-slavery faction, which abandoned the convention after the national party decided to seat both groups of purported delegates. Potter stuck with the Democratic Party, however, holding leadership positions again in the early 1850s.[19]
Potter was a significant enough figure that in 1856 a question about his partisan allegiance made the newspapers around the state. Early in that year he was nominated, apparently without his knowledge, as a delegate to a national convention of the nascent Republican Party. In a February letter to the editor of the Albany Atlas, reprinted in the New-York Daily Times and other papers, Potter explained that while he was repulsed by the efforts of the competing factions of the state Democratic Party to placate “the Slave power,” he was not ready to leave his longtime political home and join a new party.[20] A old acquaintance’s letter in response, also published in the Times, urged Potter to make the switch.[21]
Potter soon did take the plunge. In July 1856, Potter played a significant role at the “radical” or “free” Democratic convention in Syracuse, which repudiated the views expressed at the national Democratic convention and pledged to support John C. Frémont, the national Republican nominee for president. That same month, the New-York Tribune reported that Potter spoke at a meeting of thousands of Republicans in Schenectady, with the reporter calling him a former Democrat.[22] By 1857, Potter was selected as one of eight vice presidents of the state Republican party and was one of its nominees for the Supreme Court’s Fourth District. He won the election and won reelection in 1865. In 1870, when the subpoena incident occurred, Potter remained a Republican and remained active in party politics. Indeed, the run-in with the legislature may have helped his standing with his party, for a delegate at the next Republican state convention nominated Potter as chairman of the convention “for his being a distinguished jurist, and for his having been arraigned by a Democratic Legislature for contempt.”[23]
Shaping the Narrative
The legislature’s confrontation with Potter garnered attention at the time, but Potter and allies in the bar tried to publicize it and to present it to posterity as a clash between a dutiful judge and an overreaching legislature. Potter put the account in his treatise, as we’ve seen, but he also published it in a pamphlet and sent copies to judges and lawyers, in New York and beyond. Some of these people responded with supportive letters, and Potter or his allies later had them published too. The collection of supportive letters from eminent figures is presented as a sort of amicus brief in Potter’s favor, with the preface that the letters “may serve for useful reference, should a like occasion bring the question of legislative privilege up for consideration.”[24] The title page of the volume is below.
Some of the correspondents will be familiar today. They included the future President Chester A. Arthur, future U.S. Supreme Court Justice Ward Hunt, numerous state judges, former U.S. Attorney General Caleb Cushing, and other public officials, academics, and members of the bar.[25] Included at the end of the volume is an excerpt from a commendation from the New York state bar upon the occasion of Potter’s retirement from the bench.
A few of the responses come across as perfunctory, thanking Potter for the material and perhaps adding a complimentary remark on his oration, but most of the letters (or those chosen for publication, anyway) go to the merits of the case and its importance. Many of them laud Potter for standing up for the independence of the judiciary. One goes so far as to say that Potter’s performance was “worthy of a Story, a Marshall or a Kent.”
There is another aspect to the correspondence that is not altogether flattering to the correspondents, particularly the judges among them. A few writers join their praise for Potter with insults aimed at the legislature – a mass of “tyros” and “nincompoops,” says one, “blockheads” and “ignoramuses,” says another – and one of the judges wonders whether it might be proper to call the Speaker or the committee before the courts to “teach him, or them, more law . . . [and] more manners.”[26] Some of the letters also refer to a partisan angle to the confrontation, with a future Wyoming territorial judge – who would later have his own fight with a legislature – stating that the New York legislature’s “Democratic element” was motivated by “the desire to humble” the Republican Potter.[27]
Principles and politics were not totally separate in these letters but instead blended together. That is, as some saw it, Potter had to stand up for the courts because otherwise New York’s corrupt Tammany Hall machine would evade accountability: “[Without] such action every scoundrel like Bill Tweed may defy the government and escape all penalty due for his wrong doing.”[28]
Bill Tweed is better known to us as “Boss Tweed,” and perhaps it is inevitable that a political story set in 1870 New York has to involve Tweed and his ring in some way. The leader of the Assembly’s proceedings against Potter, the chairman of the Committee on Grievances, was a member of the Tweed ring, one Thomas C. “Tom” Fields. At around the same time as he was pursuing Potter for contempt, Fields was procuring the passage of a statute providing a fund for claims by certain firemen, a statute that Fields and company would then use to defraud the public through false claims. In 1872 Fields fled the country to escape justice, apparently first to Cuba, eventually settling in Quebec until his death.[29] The book containing Potter’s speech and the supportive letters informs the reader that Fields was a crook and a fugitive,[30] which was not strictly relevant to the legal merits of the subpoena dispute but was probably too good to pass up mentioning. As for Tweed, he was in trouble too, with the Times publishing financial details of his frauds in July 1871, and his arrest following soon thereafter.[31] New York’s “better classes,” a group that would certainly include Judge Platt Potter, rejoiced.
The Episode Today
In 1890, a legal journal praised Potter for standing up for judicial authority, with the author predicting that Potter’s speech “will always be regarded as an unanswerable vindication of the rights of the judiciary” for which Potter, then aged ninety, “deserves remembrance and honor.”[32] Yet despite the efforts of Potter and his allies in the bar, the incident has fallen into obscurity. For example, if one searches Westlaw, admittedly an incomplete universe with a recency bias, one finds the volume of Barbour’s Reports containing the proceedings but no other relevant cases or secondary literature. Neither is the episode mentioned in the leading accounts of the legislative contempt power and separation of powers.[33] When a Connecticut court quashed a legislative subpoena to a state judge in 2006, the court did not uncover the Potter episode.[34]
Nonetheless, some features of the episode remain instructive.
One lesson concerns the role of politics and publicity in the separation of powers.[35] Potter had decades of political experience, something today’s federal judges usually lack. Certainly no one on the Supreme Court has that kind of background. But however experienced or deft Potter may have been, Potter had a good hand to play. That was not because of the inherent nature of the clash. A legislature’s desire to protect its members from distraction or harassment so that they may conduct the people’s business is hardly beyond the pale. As the Assembly warned, a member’s absence could temporarily flip partisan control of the house and, in any case, as the Assembly explained by invoking the support of Thomas Jefferson’s Manual of Parliamentary Practice, the absence deprives constituents of their voice, a great evil.[36] But Potter and his allies in the bar could bolster their claims for judicial authority by making the courts seem essential for holding the crooks like Boss Tweed and Tom Fields to account.
Given the current partisan alignment in Congress, talk of subpoenaing Supreme Court Justices over judicial ethics has faded. That the conversation has moved on is a good thing for the courts’ institutional power, as arguing that one technically complied with then-existing rules about lavish gifts was not favorable terrain for a confrontation with a competing branch (at least a savvy one). Today, an extremely aggressive presidential administration and its allies are threatening the courts with more than a request for testimony. The increasing unpopularity of the president and near-daily revelations of corruption petty and grand should favor the courts in a clash – at least if political actors (including those on the bench) have the desire and the skill to take advantage of those circumstances.
For another lesson, we can return to Potter’s treatise and consider whether it fulfills the treatise’s conventional function of evenhandedly describing and systematizing the law. As Potter described his aim in the preface, “the author has endeavored, as a general rule, to state established principles and adjudications, rather than his own opinions of the law.”[37] If not earth-shattering, Potter’s version of Dwarris had the virtues of being solid and sober. The section on legislative privilege, though, arouses some suspicion in light of Potter’s personal investment and his efforts to shape history’s understanding of the events. After the transcript-like presentation of his speech and the legislature’s resolution of the case, Potter returns to a treatise-like exposition of the British precedents, but there is some condescension – he says he hopes to prevent future recurrences of incidents “unbecoming to the character of intelligent legislators” – and a vehement italicized paragraph here and there.[38]
Everyone knows the saying that only a fool serves as a lawyer in his own case. And there is the venerable principle that no person may be a judge in his own case (nemo judex in causa sua). Potter’s performance suggests a new cautionary adage: No one should be a treatise writer in his own case.
[1] Anna Commander, Supreme Court Justice Samuel Alito Needs to Be Subpoenaed—Legal Analyst, Newsweek (May 18, 2024, 8:07 PM), https://www.newsweek.com/supreme-court-justice-samuel-alito-needs-subpoenaedlegal-analyst-1902239; Michael Macagnone, Asking Clarence Thomas to Testify in Senate Could Spark a Showdown, Roll Call (April 14, 2023, 9:27 AM), https://rollcall.com/2023/04/14/asking-clarence-thomas-to-testify-in-senate-could-spark-a-showdown/.
[2] Jennifer Bendery, Senate Judiciary Chair on Serving a Subpoena to Samuel Alito: ‘It’s Not Going to Happen,’ HuffPost (June 15, 2024, 8:00 AM), https://www.huffpost.com/entry/dick-durbin-supreme-court-samuel-alito-subpoena_n_666c6b4de4b0c029c19dc7dc.
[3] Robert Barnes, Chief Justice Roberts Declines Durbin’s Request to Testify in Senate on Ethics, Wash. Post, April 26, 2023, at A4.
[4] Craig Alan Smith, Tom Clark under Fire: The Consequences of Congressional Investigations of Supreme Court Justices, 38 J. Sup. Ct. Hist. 139, 155-57 (2013). The committee was investigating the employment of an alleged communist spy within the administration, and it subpoenaed former President Harry S. Truman in the same inquiry. Id.
[5] Fortunatus Dwarris, A General Treatise on Statutes: Their Rules of Construction, and the Proper Boundaries of Legislation and of Judicial Interpretation (Platt Potter ed., Albany, William Gould & Sons 1871) [hereinafter Potter’s Dwarris].
[6] Fortunatus Dwarris, A General Treatise on Statutes; and Their Rules of Construction (Philadelphia, John S. Littell 1835).
[7] Potter’s Dwarris, supra note 5, at 572. Whether Potter was correct in calling the incident the first in this country depends on how far back one goes and which grounds for contempt one considers. For example, in the late 1750s, the colonial Pennsylvania Assembly ordered a judge jailed for contempt in response to libels against the house. Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 240-46 (1943). And note that Parliament had confined judges for breach of its privileges. Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 31 (2007).
[8] The committee report described the investigation as involving “an alleged case of false pretenses” but does not spell out Ray’s relevance to the case. A Compilation of Cases of Breaches of Privilege of the House, in the Assembly of the State of New York 182 (Albany, Argus Co. 1871) [hereinafter Assembly Compilation]. There is some possibility that Ray was more than a bystander, in light of a claim that the investigation was aimed at one of Ray’s business agents, who induced a farmer to sign a promissory note through false representations. Letter to the Editor, The Hon. Henry Ray and the Saratoga Grand Jury, N.Y. Tribune, Jan. 26, 1870, at 5.
[9] Assembly Compilation, supra note 8, at 182.
[10] Id. at 181-82, 187, 189-90, 204.
[11] The Struggle in Albany, The Sun (N.Y.), Feb. 17, 1870, at 1.
[12] Potter’s Dwarris, supra note 5, at 581-604. Despite not being a court case, an account of the proceedings, including the speech, can also be found in volume 55 of Barbour’s Reports of Cases in Law and Equity in the Supreme Court of the State of New York 625 (1870), which is retrievable on Westlaw at 55 Barb. 625.
[13] Potter’s Dwarris, supra note 5, at 582-92.
[14] Assembly Compilation, supra note 8, at 222.
[15] Compare id. at 222-23, with Potter’s Dwarris, supra note 5, at 605. There are also some differences in the report of Potter’s speech across the different texts in which it can be found. Compared to the Assembly compilation, the other sources add a couple of pages of argument and include some more rhetorical flourishes.
[16] Potter’s Dwarris, supra note 5, at 605; Assembly Compilation, supra note 8, at 222-23.
[17] Breach of Privilege, Independence of the Judiciary, and Limitation of Legislative Power 33-34 (n.d.) [hereinafter Argument and Letters]. I will have more to say about this unusual publication below, in note 24.
[18] 5 Appletons’ Cyclopædia of American Biography 91 (James Grant Wilson & John Fiske eds. 1888); Voice of New York, Poughkeepsie Journal, March 2, 1831, at 3.
[19] E.g., Democratic State Convention, The Daily Sentinel (Rome, N.Y.), Sept. 7, 1854, at 2 (reporting his election as one of several vice presidents of the state convention); Democratic State Nominations, Rome Sentinel, Oct. 16, 1850, at 2 (listing him as a member of the Democratic State Committee); Protest of the New York Delegates, Buffalo Daily Republic, May 30, 1848, at 2; The Utica Convention, Albany Atlas, Feb. 1848, at 18; Free Soil State Convention, Rome Sentinel, Aug 22, 1849, at 1-2 (reporting that Potter attended the convention of the free-soil faction of New York Democrats in 1849).
[20] Letter from Platt Potter, of Schenectady, N.Y. Daily Times, Feb. 26, 1856, at 3; Letter from Platt Potter, Esq., N.Y. Tribune, Feb. 13, 1856, at 6; Letter from the Honorable Platt Potter, Buffalo Daily Republic, Feb. 13, 1856, at 2. Potter’s letter was dated February 7. The unwanted nomination is shown in Republican State Committee, N.Y. Daily Times, Feb. 1, 1856, at 4.
[21] John W. Edmonds on the Republican Party, N.Y. Daily Times, Feb. 20, 1856, at 2.
[22] Important Political Movement, Weekly Herald (N.Y.), July 26, 1856, at 1; Free Democrats at Syracuse, Buffalo Daily Republic, July 25, 1856, at 2; Political Items, N.Y. Tribune, July 18, 1856, at 3.
[23] The Republican State Convention, N.Y. Tribune, April 29, 1870, at 5; The Political Campaign, N.Y. Herald, Sept. 24, 1857, at 1; The Election, N.Y. Herald, Nov. 1, 1857, at 8; Platt Potter, Hist. Soc’y of the N.Y. Cts., https://history.nycourts.gov/figure/platt-potter/ (last visited May 9, 2025). As today, the “Supreme Court” is not New York’s high court, that being the Court of Appeals.
[24] Argument and Letters, supra note 17, at 34. This strange volume includes Potter’s speech, with its own separate title page showing publication in 1870 in Albany by Charles Van Benthuysen & Sons, plus the supportive letters. The title page for the whole volume, pictured above, is undated. Based on how the book describes some of the correspondents, it appears that it was published at the end of 1880 or the beginning of 1881. See infra notes 25 and 27. I do not know in what numbers this combined publication was distributed. Probably few. The scanned versions of it available online, which give us an illusion of ubiquity, all appear to originate from the same copy in the Cornell University Law Library.
[25] The descriptions of the correspondents help us date the publication of the letters. Arthur’s letter is dated March 10, 1870, but the book identifies him as “Vice President Elect,” id. at 45, which he would not be until a decade later. In March 1870, Arthur was working for the New York City Tax Commission. Thomas C. Reeves, Gentleman Boss: The Life of Chester Alan Arthur 50 (1975). Hunt’s letter is dated Feb. 19, 1870, but the book identifies him as “Judge of the Supreme Court of the United States,” Argument and Letters, supra note 17, at 34, an office he did not assume until January 1873.
[26] Id. at 42, 52.
[27] Id. at 63-64. The book identifies the writer, William Ware Peck, as “United States District Judge of Wyoming,” but he was actually a judge on the pre-statehood territorial court, beginning in 1877. Peck’s letter is dated February 12, 1870, at which time it seems that Peck was a lawyer in New York. Peck got the judicial appointment by convincing prominent people that he was a thorough lawyer, an upright character, and a good Republican. T. Alfred Larson, Exiling a Wyoming Judge, 10 Wyo. L.J. 171, 171 (1956). Too thorough, perhaps. Responding to complaints about his slowness in processing cases, the territorial legislature “sagebrushed” him, that is, redistricted him into an as-yet unorganized and unsettled corner of Wyoming. Id. at 172.
[28] Argument and Letters, supra note 17, at 48; see also id. at 43 (lauding Potter for standing up for judicial independence and routing the corrupt Tom Fields).
[29] Thomas C. Fields Dead; Another Member of the Tweed Ring Gone, N.Y. Times, Jan. 26, 1885, at 1; The Firemen’s Claims, N.Y. Times, May 21, 1873, at 7.
[30] Argument and Letters, supra note 17. at ii n.*.
[31] Tweed Under Arrest, N.Y. Times, Oct. 28, 1871, at 3. For one of the exposés, see More Ring Villainy, N.Y. Times, July 8, 1871, at 4.
[32] Irving Browne, The New York Court of Appeals, 2 Green Bag 277, 291 (July 1890).
[33] On the possibility of judicial contempt of Congress, see Josh Chafetz, Congress’s Constitution 195-98 (2017); Elizabeth B. Bazan & Morton Rosenberg, Cong. Rsch. Serv., RL32935, Congressional Oversight of Judges and Justices (2005); Todd Garvey, Cong. Rsch. Serv., LSB10962, Enlisting Assistance or Intruding on Judicial Independence? Compelling Testimony by Supreme Court Justices (2023); and Todd David Peterson, Congressional Investigations of Federal Judges, 90 Iowa L. Rev. 1 (2004). For discussion of a few recent incidents of state legislatures subpoenaing judges, see John DiPippa, “Your Honor, You Are Hereby Commanded to Appear …”: When a Legislative Committee Subpoenas a Sitting Judge, 47 U. Mem. L. Rev. 1193, 1193-97 (2017).
[34] Sullivan v. McDonald, No. CV064010696, 2006 WL 2054052, at *3, *7 (Conn. Super. Ct. June 30, 2006). The judge later agreed to testify. See Sullivan v. McDonald, 913 A.2d 403 (Conn. 2007).
[35] See Chafetz, supra note 33, at 16-25 (describing a conception of constitutional politics in which institutional conflicts are resolved based on specific circumstances and public engagement around them).
[36] Assembly Compilation, supra note 8, at 184-85, 189-90.
[37] Potter’s Dwarris, supra note 5, at v.
[38] Id. at 614, 652.