Josh Hawley claims judicial nominee too soft on crime because of work on child porn case
When serving as a federal public defender in Kansas, Richard Federico was assigned the case of Charles A. Gann, a Great Bend man in his 40s accused of using the internet to seek out child pornography and communicate with others who were interested in the material.
Gann pleaded guilty to one count of distributing child pornography in 2018 and was sentenced to 13 years in prison.
Five years later, the case was a flashpoint in a Senate Judiciary Committee hearing on Wednesday, as Federico is on the precipice of a lifetime appointment as a judge on the U.S. Court of Appeals for the 10th Circuit, which covers cases in Kansas, Oklahoma, New Mexico, Colorado, Utah and Wyoming.
Two Republican Senators — Sen. Josh Hawley, from Missouri, and Sen. Marsha Blackburn, from Tennessee — homed in on Federico’s sentencing recommendation as Gann’s public defender, criticizing it for being about eight years below the federal sentencing guidelines for the charge. The prosecution for the case also recommended a sentence below the federal guidelines.
“Even as these cases go, and they’re always horrible, this is a really extreme one,” Hawley said of child pornography cases, a cause he has taken up on several occasions.
Hawley said he would not support Federico’s nomination, citing the sentencing recommendation as one of the reasons he was witholding his support.
“He chose to be a public defender,” Hawley said. “That’s fine, that’s his choice. But that’s not a get out of jail free card in the sense that that means we can’t ask about your choices as a lawyer. He could have recommended any number of a range of sentences.”
It is unlikely that Hawley’s opposition will stop Federico’s confirmation. He has bipartisan support, including both of the Republican Senators from Kansas and was introduced in committee by Sen. Jerry Moran. Sen. Roger Marshall said Federico has his support unless something drastic is revealed that might change his opinion.
“I have sat down and personally met with Mr. Federico, and I believe he is an impressive choice for this role,” Marshall said. “I respect his service to our country and the U.S. Navy and look forward to him bringing this same impartial integrity to the Court of Appeals.”
Still, Republican members of the committee have been quick to highlight cases in the records of former public defenders nominated to the federal courts in an effort to portray them as soft on crime.
Federico, who President Joe Biden nominated to the court in July, has worked in the federal public defenders office in Topeka since 2017. He also worked as a military judge in the Navy Reserve Trial Judiciary and served in the Navy’s JAG corps both as a prosecutor and as a defense attorney.
When questioned by Hawley, Federico said it was his professional responsibility to vigorously defend his client against the charges brought against him. He emphasized that Gann was assigned to him, but defended the importance of public defenders.
“What an amazing country that we live in that no matter who you are or what you’re charged with, even those we charge as our greatest enemies,” Federico said. “Not only do we give that person a lawyer, but we give that lawyer a professional charge that you will do your best, within the balance of the law, to represent them. That is a value enshrined in the constitution that we should all cherish.”
Democratic senators on the committee were also quick to point out that Federico was assigned the case and it was his responsibility to defend his client. Sen. Peter Welch, a Vermont Democrat who used to work as a public defender, thanked Federico for doing a job he said it often unpopular.
“There are many times when people were very angry at me because they oftentimes mistook the role I think a defense counsel plays, particularly public defenders, where you have no role, no benefit,” Welch said. “You just do the job of representing the person the court has assigned you to represent.”
Federico’s hearing is not the first time Hawley has drawn attention to a nominee’s record on people accused of child pornography crimes. During Justice Ketanji Brown Jackson’s nomination hearings to the U.S. Supreme Court, Hawley drew attention to sentences she handed down to people convicted of child sex crimes.
Hawley said he believes that the legal system is not imposing severe enough punishments on people accused of child sex crimes. He introduced a bill to increase the mandatory minimum sentences for people convicted of such crimes and co-sponsored a bill with Sen. Dick Durbin, an Illinois Democrat, to allow people to sue tech companies for child pornography posted by users to their websites.
He said the country is currently dealing with an epidemic of child sex crimes — internet service providers reported more than 31 million instances of child sexual abuse material online in 2021, according to the National Center for Missing and Exploited Children — and he wants nominees to the judicial branch to show they’re tough on such crimes.
“I am trying to send a message,” Hawley said. “I want people who come before the judiciary committee, whether they’re Republicans or Democrats, I don’t want them to come with records like that. And I don’t want people coming before us who are soft on this issue.”
Carl Tobias, a law professor at the University of Richmond, said he believes it’s likely Federico will be confirmed, despite facing questions he said were “vigorous and aggressive.”
“People like Hawley are outliers in the sense that nothing would satisfy him,” Tobias said. “And so he did find this one particular case where he could raise the issue and did. But I thought the response from the nominee was everything you could possibly expect.”
The Judiciary Committee is expected to vote on Federico’s nomination later this month, which would allow for a full vote on his nomination by the end of the year. Federico was nominated to replace Judge Mary Beth Briscoe, a Clinton appointee, after Jabari Wamble, the son-in-law of Rep. Emanuel Cleaver, failed to get a nomination hearing.
