The flip side of grievances filed against the useful idiots who have chosen to remain in Trump’s Justice Department at the risk of their integrity was Attorney General Pam Bondi’s grievance against Chief Judge James Boasberg based upon his raising the concern that the Trump administration will not abide by the orders of the Court. As former District Court Judge Nancy Gertner and Georgetown Law Prof Steve Vladeck write, it’s preposterous.
Last week, in a post on social media, Attorney General Pam Bondi announced that the Justice Department filed a misconduct complaint against James Boasberg, the chief judge of the Federal District Court in Washington, claiming he made “improper public comments about President Trump” and his administration.
At least he didn’t provide unemployment statistics that made Trump look bad, but then, Trump can’t fire Judge Boasberg for telling the unpleasant truth either.
The essence of the complaint is that Judge Boasberg, in talking with John Roberts, the chief justice of the Supreme Court, and other federal judges, said things “that have undermined the integrity and impartiality of the judiciary,” and that as a result he should be subjected to an investigation, temporary reassignment of some of his cases and, potentially, public reprimand and “consideration of impeachment-related recommendations.”
They do so love their investigations, especially when they’re the ones doing the investigating. But what’s wrong with that if Judge Boasberg did as he’s accused?
The complaint misrepresents both what Judge Boasberg said and the nature of the setting in which he spoke, and it misapplies the law and the rules governing judicial conduct. Worse, it is a dangerous escalation in a mounting list of assaults by the current administration on the legitimacy of the federal courts.
It is, in a word, preposterous.
Judge Gertner and Prof Vladeck work through the nuts and bolts of why pretty much every aspect of Bondi’s allegations are absurdly false, both on the facts and law, but the basis for the grievance comes from a memo which, somehow, found its way into the hand of the Federalist.
Apparently, the complaint is based on a leaked memorandum, reportedly written by a member of the Judicial Conference. Even if the claims against Judge Boasberg had merit — they don’t — the attorney general’s announcement on social media is a violation of the law, which requires confidentiality. The entire exercise is an insult to the federal judiciary and cannot stand.
The memo was vaguely “written by a member of the Judicial Conference,” summarizing Judge Boasberg’s comments at a “working breakfast” with Chief Justice Roberts.
“District of the District of Columbia Chief Judge James Boasberg next raised his colleagues’ concerns that the Administration would disregard rulings of federal courts leading to a constitutional crisis.”
“Chief Justice Roberts expressed hope that would not happen and in turn no constitutional crisis would materialize,” according to the memorandum. The summary of the working breakfast added that Chief Justice Roberts noted that “his interactions with the President have been civil and respectful, such as the President thanking him at the state of the union address for administering the oath.”
There is nothing about this interaction on Judge Boasberg’s part that would conceivably give rise to a grievance, although CJ Roberts’ response is surprisingly insipid. More concerning is that one of the judges who received the memo thought it appropriate to leak it to the Federalist, starting the slide down the slope leading to Bondi’s complaint.
The issue raised by Judge Boasberg, “his colleagues’ concerns that the Administration would disregard rulings,” is not merely academic for the judges of the District of Columbia court, but a very real problem and, contrary to Judge Boasberg’s colleagues’ concerns, one that has already gone well beyond the threshold of possibility.
The notion that it is somehow improper for judges on lower federal courts to raise a general concern about the prospect of their orders being ignored simply beggars belief. And it turns out that those concerns were well taken. In July, The Washington Post reported that Mr. Trump and his appointees “have been accused of flouting courts in a third of the more than 160 lawsuits against the administration in which a judge has issued a substantive ruling.” Last week, The Times reported on the Senate confirmation of Emil Bove, a Trump loyalist, as a federal appeals court judge, noting that, “During his brief tenure as a Justice Department official, Bove was accused by a whistle-blower of having suggested that department lawyers might defy court orders.” In a Senate subcommittee hearing, Ms. Bondi seemed to suggest that the administration will follow court orders — but only those of the Supreme Court.
So if the complaint filed by Bondi “beggars belief,” wouldn’t it be rejected and of no moment?
The real issue here is why Ms. Bondi decided to make such a spectacle out of an obviously frivolous complaint against a highly respected Federal District Court judge. It seems clear that her first intended audience is other district judges; for them, even frivolous judicial misconduct complaints come at a personal and professional cost, especially when they are filed not by private litigants but by the Justice Department. If the chief judge of the Federal District Court in Washington can come in for such treatment, perhaps other judges will think twice before raising legitimate concerns.
Threats of retaliation, lawful or otherwise, have been working pretty darn well for the Trump administration, which sees no line it won’t cross if it serves their interest. It’s worked with the House and Senate. It’s worked with universities. Some might even argue that it’s worked with the Supreme Court, which seems to be bending over backwards to avoid the appearance of the constitutional crisis that seems overwhelmingly obvious to anyone disinclined to make excuses for Trump, who has no qualms with personally attacking individual judges who rule in ways that displease him.
The second audience is, without doubt, Mr. Trump and his supporters. By all appearances, the complaint furthers the idea that presidents can do what they want without a care for federal judicial rulings. That’s not how our legal system and Constitution work.
That may not be how our legal system and Constitution are supposed to work, but it’s increasingly looking like the way it’s working, notably given CJ Roberts’ response to Judge Boasberg. That judges shouldn’t be deeply concerned about their orders being violated or ignored isn’t merely a legitimate concern, but a problem that has already happened with the judiciary desperately trying to pretend it hasn’t so it doesn’t have to face the crisis. Bondi’s complaint may “beggar belief,” but so too does the judiciary’s pretending it’s not happening and Chief Justice Roberts’ ridiculous reaction that Trump thanked him, so all is well with the courts.
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“There is nothing about this interaction on Judge Boasberg’s part that would conceivably give rise to a grievance, although CJ Roberts’ response is surprisingly insipid. ”
What’s so surprising about it?