Why Is Missouri's Republican AG Andrew Bailey Protecting a Judge Who Abused Children?

AP Photo/David A. Lieb

This report is part 28 of an investigative series looking into reported corruption in the Missouri judiciary and family courts. For the rest of the investigation, visit the catalog here.

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If you thought Republican-led states were any safer for civil rights, think again. Missouri has a new attorney general, Republican Andrew Bailey, who is currently throwing the weight of the state and its resources behind defending family court Judge Eric Eighmy. Eighmy is the infamous judge who jailed and tortured America’s Got Talent stars the Rockett children in order to coerce them into living with the parent they did not prefer.

For a recap, the children, who were both teens at the time, refused to go live with their mother. In an effort to coerce them to do so, Eighmy dragged them to the detention center under his office and jailed them for an hour — stripped of their socks and shoes — and then threatened them with foster care if they refused to obey him. Later, the judge issued an order across state lines for a Louisiana sheriff to arrest the children and throw them in the juvenile detention center for two days, in solitary confinement, where they were subjected to abuse through strip searches, sleep deprivation, interrogation, and psychological trauma.

Related: Shocking Lawsuit Alleges Mo. Family Court Judge Unlawfully Imprisoned, Terrorized ‘America’s Got Talent’ Stars

When the children’s father, Bart Rockett, sued Judge Eighmy for civil rights violations on behalf of the children, the state of Missouri, through then-AG Eric Schmitt’s office, took up the case for the bad judge. Schmitt is also a Republican. Eighmy, represented by Schmitt’s office, already lost his first bid for immunity in December in the District Court. Instead of chalking it up as a losing case, Bailey, newly appointed on January 3, appealed the bid for immunity from consequences to the Circuit Court of Appeals, where arguments were heard last Thursday.

The panel of three federal judges was not impressed with Bailey’s representative, Michael Talent, the deputy solicitor general, and his weak arguments in favor of judicial tyranny. The federal court made it abundantly clear which way it was leaning.

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“What is the judge’s authority and basis for seizing the children?” asked Judge Lavenski Smith. Talent responded, “Judge Eighmy didn’t denominate what authority he was operating under… the question for immunity purposes is less about whether he exercised an authority lawfully given and more about whether what he did is something judges do.”

Not easily persuaded, the judge asked, “How frequently in Missouri or in any other state that you’re familiar with, do judges take people to holding cells?”

Talent couldn’t answer that question and stuttered awkwardly before trying to defend the outrageous behavior by comparing it to Stump v. Sparkman. In that SCOTUS ruling, the court, full of people who wore black robes, decided in 1978 that it was fine that a fellow judge had forcibly sterilized a woman against her will because he did it from the bench. Slate reported:

The obvious problem with this doctrine is that the judges who stand to benefit from a system that ensures their legal lack of accountability are the ones who decide whether they themselves should get immunity. The case of Stump v. Sparkman offers a glaring example of how this framework can subvert the very idea of justice. In 1971, a judge from Indiana’s Dekalb County Circuit Court, Harold D. Stump, ordered 15-year-old Linda Sparkman to be surgically sterilized.* Sparkman’s mother had been worried that her daughter was hanging around with older boys. And so, in what I can only assume was an effort to prevent her daughter from getting pregnant, she went to the court and asked Judge Stump to order the operation.

Stump said yes. Really, that’s all he did. He didn’t file any paperwork with the court’s clerk or open a case file. There were no hearings, no presented evidence. He didn’t even tell the 15-year-old Sparkman the truth about her operation—she was told she was going in for an appendectomy. It was only four years later, two years after she’d been married and was trying to have kids, that she discovered what had really been done to her.

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When the case was appealed to the federal circuit court, it ruled against the judge, but the Supreme Court overturned that ruling and encoded absolute judicial immunity into the fabric of our justice system. It may be the worst Supreme Court ruling on the books next to Roe v. Wade.

It was that argument the 7th U.S. Circuit Court of Appeals cited in siding with Sparkman and unanimously reversing a lower court’s decision. This couldn’t have been a judicial act, the appeals court reasoned, because there were no statutes on the books that could have justified sterilization.

But when the case made its way to the Supreme Court, the 5–3 majority ruled Sparkman’s judicial immunity was absolute. And they did so in a way that redefined, in a broad way, the definition of a “judicial act.” Writing for the majority, Justice Byron White ruled that a judicial act must be one undertaken by a judge in his official capacity and must be one a judge normally performs (in this case, not the specific act of issuing a sterilization order but the act of issuing orders more generally). The court ruled that Stump’s behavior passed that test, and so, despite the appeals court’s ruling that he’d violated Sparkman’s due process rights, the judge was off the hook.

If only Eighmy had ordered the children into his courtroom while the proceeding was still in session, he would probably be off the hook too. But pretending to have judicial authority in the hallway of the court will most likely be a bridge too far, even for the judges who want to protect their own immunity. You can hear some clips of the oral arguments in my Twitter thread below.

We suffer with total judicial immunity to this day as a result of the bad ruling in Stump v. Sparkman. If women should be up in arms about anything, they should start protesting the judicial immunity that was imposed upon us all when a woman was denied the justice she deserved by the black-robed mafia protecting one of their own.

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Bailey should be asked why he continues to fight this loser of a case for the disgraced Eighmy. PJ Media attempted to do just that, and after reminding Bailey’s office that we had submitted a request for comment that was never returned, we finally received one sentence: “We are declining to comment at this time.”

Bailey didn’t have any trouble providing comments to conservative press outlets when he announced his investigation into gender mutilations in Missouri recently. He claims to be willing to root out child abuse in the medical industry and shouts it to any camera nearby, and posts it to his Twitter account. But when pressed on the fact that his office is defending an admitted child abuser who happens to be a family court judge, he has nothing to say. (It’s important to note that Eighmy admits he did these things to the Rockett children. His argument is that he had the power to do it because he’s a judge.)

PJ Media has also submitted a FOIA request asking for the complete billing records in the Eighmy case so we can uncover how many tax dollars Bailey has spent on defending Eighmy against his own citizens. If they turn it over, we will publish it.

Related: Missouri Judge Loses Bid for Immunity for Jailing ‘America’s Got Talent’ Kids

The argument before the 8th Circuit Court of Appeals continued as the AG’s representative tried to make the case for a judge to have jailing power whenever he wants it. “Judges do normally engage in what may be termed as a seizure under the 4th Amendment by a show of authority,” Talent lamely explained. In other words, lots of judges illegally use their power of the black robe to toss people into jail, depriving them of liberty, so it should stand that Eighmy should be able to do this to two children because… all the other bad judges are doing it!

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“They do it, but not this way,” interrupted the honorable Judge David Stras. “I think this judge had a little bit of black robe disease and thought his power was a little bit more than it actually was. And usually, when you do something like this in state court, I used to be a state court judge, you actually go through some procedures. You don’t walk into a conference room, you don’t throw two kids into jail and make them take off all their shoes, put them in a holding pen, and when they come out, tell them they’re going to go to foster care if they don’t listen.”

Talent then lied to the judges three times, saying that the Rockett children approached the judge in the hallway of the courthouse. This is not true. When one of the presiding judges called Talent on it, he admitted that the judge approached the children. Talent also had a problem when he tried to liken what Eighmy did to a “motion for reconsideration.”

“It doesn’t look anything like a motion for reconsideration,” replied Judge Jonathan Kobes, sounding exasperated. “That would be a judicial function, and as Judge Stras indicated, there are procedures that go with that. An order would issue following that motion for reconsideration, and then it would be enforced, presumably by an executive official like a police officer or a deputy, or something along those lines.”

Talent tried to rebut this truth, arguing that “grave procedural errors don’t vitiate an act of judicial nature.” The judge disagreed, saying, “On its surface, it just doesn’t look like [a judicial act].”

“The children approached Judge Eighmy as a judge,” Talent said again, falsely. “The authority he used to seize them was his judicial authority.”

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“You’re saying the children approached him?” questioned Judge Smith. “I thought he approached the ensuing discussion that was happening in the courthouse lobby. Am I wrong about that?”

Talent then admitted he had been lying without apology. “I think that is correct, but the engagement with the children and the reason they followed him was because he was a judge.” I wish someone had followed up and asked Talent why he insisted three times that the children approached the judge when he knew that wasn’t true. Is the deputy solicitor general of the state of Missouri allowed to lie to federal judges without consequence? That was one of the questions we submitted to Bailey’s office that he declined to answer.

“I’m thinking that this doesn’t fall under any government authority at all,” rightly interrupted Judge Stras. “An executive official, you know, a police [officer] has to have at least probable cause or reasonable suspicion to stop and seize someone. He clearly didn’t even have arguable probable cause or arguable reasonable suspicion, so he wasn’t using executive authority.”

Judge Stras continued to destroy Talent’s argument with ease and skill. “And judicial authority ordinarily happens in a courtroom as Judge Kobes says, with some sort of process. So it doesn’t appear that he’s exercising judicial authority, and I don’t think there’s any legislative authority going on so it seems to me there was just no authority for what Judge Eighmy did.”

No lawyer I’ve spoken to thinks so, either. If the court rules against Eighmy again, it will be time for Bailey to stand down and let the Rockett children have their day in court. He should have done that when the District Court refused to dismiss the lawsuit. It is probable that Bailey didn’t think anyone was paying attention to this case, and he was getting lots of good press on the right for his admirable work to uncover child abuse in the medical industry.

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But I’ve been investigating court corruption in Missouri for three years with no help at all from any Republicans in Missouri. It’s time to start naming the people ignoring or supporting the corruption. Bailey has climbed to the top of my list.

If you would like to contact Bailey’s office to ask him why he continues to spend taxpayer funds on defending Judge Eighmy, his office contacts are below.

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