NH Supreme Court Crisis: Who Will Watch the Watchers?
From: A citizen for Transparency in the NH Justice System
Our founders designed a government in which no man, however learned or cloaked in robes, would be unanswerable to the people from whom his power is drawn. They did not merely establish courts, but enshrined the expectation of character. If those who sit in judgment cannot themselves stand before the people with a clear conscience and an honest account, then they are unfit to judge others.
BREAKING – Judicial Accountability on Trial in New Hampshire
On July 31, 2025, the New Hampshire Judicial Branch, through its general counsel, Erin Creegan, filed a remarkable motion seeking to "clarify" the subpoena process, effectively trying to block the Chief Justice of the New Hampshire Supreme Court from testifying in a criminal trial. The case? A felony prosecution against one of their own: Associate Justice Anna Barbara Hantz Marconi.
Just days earlier, on July 25, the New Hampshire Attorney General's Office filed its own motion – to quash a subpoena issued to Attorney General John Formella, who is both the state's top prosecutor and a central witness in the case.
Let's be absolutely clear: this is no ordinary case. It has become an open constitutional clash between the Executive Branch, which is prosecuting the case, and the Judicial Branch, which appears desperate to shield its own members from scrutiny. The third branch, the Legislature, has thus far stood silently by.
Who's Who: The Power Players
- Chief Justice Gordon MacDonald – Justice Marconi claims that MacDonald told her it was appropriate to meet with the Governor because she was "a constituent and had concerns." She says he assured her the meeting was lawful. But in an interview with the Attorney General's Office, MacDonald gave an account that directly contradicts hers. Now, the Judicial Branch, through its general counsel, is attempting to block him from testifying altogether. What is he trying to hide?
- Erin Creegan – General Counsel for the New Hampshire Judicial Branch. She filed the July 31, 2025 motion to "clarify" the subpoena process, arguing that judicial independence and "mental process privilege" protect Chief Justice MacDonald from being compelled to testify. Her motion represents a bold assertion of judicial immunity at a time when transparency is urgently needed.
- Governor Chris Sununu – Met privately with Justice Marconi on June 6, 2024. That meeting, according to court records, is central to the charge that she attempted to influence the Attorney General. Sununu has offered shifting accounts of what was said. He is also listed on the State's witness list.
- Justice Anna Barbara Hantz Marconi – The defendant. A sitting associate justice of the New Hampshire Supreme Court, she faces two felony charges and five misdemeanors, accused of trying to influence the Attorney General during an active criminal investigation into her husband, Geno Marconi. Her trial is imminent.
- Geno Marconi – Husband of Justice Marconi and former Director of the Division of Ports and Harbors at the Pease Development Authority. He has been charged with two Class B felonies and four Class A misdemeanors, including falsifying physical evidence by deleting voicemails and retaliating against a whistleblower by misusing DMV records, alleged violations of the Driver Privacy Act. The investigation into his conduct reportedly prompted Justice Marconi's outreach to senior officials.
- Attorney General John Formella – New Hampshire's top prosecutor, now leading the case against Justice Marconi. But he's also a central witness. His contemporaneous notes documenting a conversation with Governor Sununu may be the most direct evidence of whether improper influence was exerted. The Attorney General's Office has filed a motion to quash his subpoena, even as defense lawyers argue that Formella's solo interviews with Sununu and legal counsel Rudy Ogden violated ethical norms and tainted the investigation.
- Justice James Bassett – The most senior associate justice on the New Hampshire Supreme Court. Though not accused of wrongdoing, his planned early retirement, scheduled for August 31, 2025, well before the mandatory retirement age, has raised eyebrows. He has been subpoenaed by the defense to testify at trial.
- Justice Patrick Donovan – Appointed in 2018, Donovan remains a sitting associate justice on the state's highest court. He is not accused of misconduct but has been subpoenaed by the defense. His role on a court now engulfed in controversy places him under heightened public scrutiny.
- Justice Melissa Countway – The newest justice on the New Hampshire Supreme Court, having joined in January 2024. While not involved in the underlying events, she now serves on a court that is deeply entangled in the case. She, too, has been subpoenaed to testify.
- Hon. Rudolph W. Ogden III – A judge and former legal counsel to Governor Sununu. He was present at the Governor's office during Justice Marconi's June 6, 2024, visit. His ties to both the Executive Branch and judicial appointments make him a critical witness in understanding the circumstances of that meeting.
- Bradly Cook – Chairman of the Port Advisory Council. At a May 1, 2024, meeting of the Pease Development Authority, Cook strongly defended Geno Marconi's integrity while condemning the investigation as a political "cesspool." His comments underscore how polarized public opinion has become.
- Stephen Duprey – Chairman of the Pease Development Authority. According to defense filings, Justice Marconi also spoke with Duprey about the investigation. Duprey, like Governor Sununu, told investigators he did not view the conversation as improper. Still, his role adds another layer to the inquiry into whether and how Marconi sought to influence public officials.
- Judge Martin Honigberg – The presiding judge in Justice Marconi's criminal trial. He has scheduled a critical motions hearing for August 8 at 1:00 PM, where major legal questions will be addressed, including whether key subpoenas will be enforced and whether top officials can be compelled to testify under oath.
What's Going On?
In any ordinary case, witnesses like the Governor, the Chief Justice, and the Attorney General would take the stand. That's how trials work.
But this case involves a sitting Supreme Court Justice – and suddenly, the rules are different.
The Attorney General's Office is trying to quash a subpoena for AG John Formella, even though he documented key conversations at the heart of the case.
The Judicial Branch's top lawyer is trying to block Chief Justice Gordon MacDonald from testifying, despite his firsthand role in events.
Governor Sununu's own version of what happened has shifted – and he, too, appears on the State's witness list.
Every member of the state's highest court is now either a defendant, witness, or active participant in a case involving one of their own, raising serious doubts about impartiality and oversight.
Meanwhile, the defense argues that Formella interviewed Sununu and Judge Rudy Ogden without a second official present, violating internal protocols and ABA standards. They claim this undermines the integrity of the investigation and calls for Formella's disqualification as both prosecutor and witness.
It's institutional self-protection, dressed up as legal nuance.
Constitutional Bedrock: Are We Still Following It?
New Hampshire's State Constitution, written in 1784, predates the federal Bill of Rights by seven years. Yet its principles remain strikingly relevant today. What does it say?
Part I, Article 8 – Public Accountability
"All power residing originally in, and being derived from, the people, all the magistrates and officers of government are at all times accountable to them."
This means everyone, including justices of the Supreme Court.
Yet today, we see public officials using their offices to:
- Avoid subpoenas
- Invoke vague privileges
- Block fact witnesses from testifying
- Oversee cases involving their own colleagues
Part I, Article 10 – Right of Government Reform
"Whenever the ends of government are perverted, and public liberty manifestly endangered… the people may, and of right ought to reform the old."
This article wasn't written for rhetorical flourish. It was written as a warning: if institutions begin protecting themselves rather than serving the people, if accountability vanishes, then reform ceases to be only a right, it becomes a duty.
Part I, Article 35 – Impartial Courts
"It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit."
That right collapses when the Judicial Branch is allowed to police itself while presiding over a case involving one of its own. The appearance and risk of bias become unavoidable.
Mental Process Privilege: The Robes Behind the Curtain
Creegan's July 31 motion leans heavily on "mental process privilege", a doctrine meant to protect judges from being questioned about how they reach decisions in court.
But that's not what's at stake here.
The question is not how Chief Justice MacDonald ruled from the bench, it's what he said, as a fact witness, to a fellow justice before the alleged attempt to influence the Governor.
That's not deliberation. It's not protected reasoning. It's a factual conversation, and facts belong in court.
The motion also claims that forcing testimony would endanger judicial independence. But true independence requires public trust, and trust demands transparency.
Meanwhile, the defense has subpoenaed Justices Bassett, Countway, and Donovan. Every sitting Supreme Court justice is now either a witness, a participant, or a potential conflict.
And with the court's own legal counsel trying to block testimony, the public is left to ask: who is left to guard the guardians?
Why the Legislature Must Act
So far, the New Hampshire Legislature, the people's representatives, has remained silent. But silence in the face of institutional breakdown is complicity.
Lawmakers have the power to:
- Investigate
- Subpoena
- Impeach, if necessary
And they've used that power before.
In 2000, the New Hampshire House of Representatives impeached then-Chief Justice David Brock after credible allegations of judicial misconduct. The process was difficult, contentious, and politically fraught, but it affirmed a fundamental truth: even the state's top judges are not immune from accountability.
That moment proved the Legislature can act – when conscience and constitutional duty demand it.
Today, the crisis is no less grave.
If the Judicial Branch shields its own, and the Executive Branch dodges transparency, then only the Legislature remains to restore public trust and institutional balance.
No More Exceptions
The New Hampshire Constitution was never meant to shield the powerful from scrutiny. It was written to constrain them, to ensure that all who serve in government remain servants of the people, not masters above them.
When a sitting Supreme Court Justice stands trial for attempting to interfere with a criminal investigation, and the state's highest officials close ranks to avoid testimony, the public has every right to be alarmed. The issue isn't partisanship or policy. It's whether truth still matters and whether the law applies to everyone.
This is not a time for deference. It is a time for courage.
Let every relevant witness take the stand.
Let every fact be tested under oath.
Let every official, regardless of title, be accountable to the people from whom their power is drawn.
Justice must not only be done, it must be seen to be done. If we accept excuses now, we invite even more corruption later.
–A Citizen for Transparency in the NH Justice System
Source: NH Supreme Court Crisis: Who Will Watch the Watchers? - Granite Grok