This week, Rep. Brandon Gill, R-Texas, formally introduced impeachment articles against U.S. District Chief Judge James Boasberg. It was a popular move with many after a series of controversial orders by Judge Boasberg. I have been highly critical of those orders, particularly the prior orders granting Special Counsel Jack Smith’s demand for the telephone records of Republican members of Congress in the “Arctic Frost” probe. However, I disagree that his order meets the standard for impeachment under the Constitution.
In an earlier resolution in March, Rep. Gill sought to impeach Boasberg over immigration rulings against the Trump Administration. I also opposed that resolution.
I have previously written that it would be a grave mistake to misuse impeachment powers to target judges or justices.
One of the greatest abuses of members of the Democratic Party in the past eight years has been their use of impeachment investigations and charges against their political opponents. From President Donald Trump to conservative justices, liberal members have demanded impeachments over everything from opposing the NFL kneelers to hanging revolutionary-era flags.
I testified in the impeachment proceedings against Presidents Bill Clinton, Donald Trump, and Joe Biden on the use and the abuse of this power. I was also lead counsel in the last judicial impeachment trial in the Senate. In my view, this is not an appropriate use of impeachment and could seriously undermine our constitutional system.
I share Rep. Gill’s objections to the Arctic Frost orders. It was a signature move by Smith, who has previously abused his authority by refusing to heed long-standing limits on the use of prosecutorial powers. While some Democratic members have supported the orders, it is a dangerous precedent that can expose communications with members with journalists, whistleblowers, and others.
Rep. Gill is also correct in stating in the resolution that these members were “acting in accord with their legislative duties and privileges guaranteed by Article 1, Section 6, Clause 1 of the U.S. Constitution.” Having previously represented the House of Representatives in court as well as individual members of Congress, I also view this as an intrusive and unjustified search.
However, this is not what impeachment was designed to address. Indeed, the Framers created a difficult process for impeachment precisely to discourage impulsive or ill-considered measures.
Boasberg allowed Smith to subpoena phone records for 10 senators and one House lawmaker. Smith also sent gag orders to Verizon and AT&T instructing them not to notify lawmakers of the subpoena. Verizon complied with the order, but AT&T refused to do so.
In signing the orders, Boasberg acted in accordance with the Stored Communications Act. He clearly agreed with Smith that evidence of collusion or conspiracy would fall outside of the protected functions of members of Congress.
The new resolution is notably vague and speculative in critical respects. It suggests that the judge might have been actively involved with Smith in targeting Republicans: “It is unclear if Judge Boasberg facilitated the frivolous 23 subpoenas issued by Special Counsel John L. Smith.” There is no evidence to suggest that Boasberg engaged in such unethical conduct.
It then charges: “Chief Judge Boasberg does not appreciate basic statute [sic] and contributed to the legal inquiries that violate the law indicating he is unfit to 21 serve as Chief Judge.”
Members can certainly view Chief Judge Boasberg as wrong on the law. I have criticized him in past orders precisely over such disagreements. However, legal disputes are addressed in the court system, including those prior orders. Indeed, Chief Judge Boasberg was both affirmed and blocked on previous issues.
None of that rises to “high crimes and misdemeanors.” The removal of a judge from the federal bench is a rare and weighty decision. It should not be based on differences over statutory interpretations, even when a judge is later reversed. Conservatives would be equally aggrieved if a Democratically controlled House impeached a judge for ruling against a Democratic president or for adopting a controversial interpretation on issues related to gun or abortion rights.
These measures can trigger tit-for-tat politics as each party harasses judges considered obstacles to their agendas. Such a pattern would undermine the independence and integrity of our court system. One can disagree — and even denounce — Chief Judge Boasberg for prior orders without resorting to this constitutional nuclear option.
Does a judge have to be found guilty of committing a crime to be removed from the bench? Surely a judge who regularly demonstrates gross incompetence should be removed as well. I’d like to hear JT’s opinion on that circumstance. Would it take passing a new amendment to make that happen? Or, as that might take decades, would jury nullification in a Senate impeachment trial be acceptable to forcibly retire an incompetent judge, if there is no other legal means?
No, no conviction is necessary. Alcee Hastings was acquitted at trial, but he was still impeached and removed.
But judges can only be removed for misconduct, not for incompetence. In this case I think there was misconduct.
But Judicial misconduct is very difficult to prove. A finding of incompetance would be much easier, as it could be proven using the evidence of a long string of reversals by higher courts.
On a seperate issue, is anyone else here getting told their comments have been “rate limited”? My first attempt to post this reply was blocked that way, and it was only my second post of the day. I’m NOT a frequent poster.
It would be easier, but that’s not what the constitution says.
What exactly was the misconduct? Can you point it out? Or is it just a hunch?
The misconduct is conspiring to subvert the law in order to sabotage the Trump campaign, then the Trump administration, Trump’s reelection, and the Republican Party generally. It’s Watergate, only much bigger. What was the misconduct in Watergate? Magnify it by at least 100.
With 20 judges, the odds of Boasberg getting 4 unrelated Trump cases is ~0.000006% (1 in 160,000).
This was a criminal conspiracy to bring down a president. Forget impeachment. Get a chainsaw.
I disagree with the Professor. I do not like the willy nilly use of Impeachment proceedings that we have fallen into recently. It usually takes congress away from their main job which they already have difficulty managing. I have no fear the Judge Boasberg will be convicted but I think the process, in his case, should go on. I do not like the present tendency of the Judiciary overstepping their bounds, especially when they try to manage the executive branch. Therefore I would like to see this process air the grievances and have a forthright discussion of Judiciary limits, win or lose on the conviction.
The better solution, in the long run, would be term limits for both district and appeals courts with no option for reappointment. Neither should be in their seats longer than 15-20 years.I would also not put term limits on the SCOTUS but set 9 judges as the fixed number of the justices.
If a district judge it good then they can move up to the appeals court, if selected, and if not they move on to other things. Same with appeals courts justices, they either get selected and move up to the SCOTUS or they move out.
Justice Boasberg is a little too anxious to get into cases that involved DJT and his administration and he puts the whole judiciary at risk with his antics and activism. He needs to move on.
What is the definition of a good district judge? Decides in your favor? Judiciary at risk? Again, your conservative bias clouds your judgement.
Move on? He’s done nothing wrong.
“He’s done nothing wrong.”
Two years of allowing Comey, Lynch, Yates, McCabe, Mueller, etc. to stand before him repeatedly in his FISA courts and perjure themselves while he issued illegitimate FISA spy warrants to deprive thousands of Americans of their civil rights… nothing wrong with that!
In a communist country.
I’m curious, Professor Turley, what would Boasberg have to do to reach the level of impeachment? He’s clearly abused his office for partisan gain, and done so repeatedly. He has also done so in a way to cover his tracks through secrecy orders. If this doesn’t warrant impeachment, what does?
Everyone should watch the documentary “Deep in the Pockets of Texas” that aired a few years ago. If there was ever an assault on America’s system of government, it’s happening in states like Texas according to the documentary.
As far as constitutional “originalism” it appears Texas is operating closer to theocratic-Europe in the 1700’s (the tyranny that inspired the Declaration of Independence and Bill of Rights). The documentary also asks every Texas voter if their votes even matter.
After watching this documentary, maybe this judge simply opposes foreign models of theocracy and fascism? Maybe the judge supports America’s system? Maybe it has nothing to do with American political parties?
Did it ever occur to you that Boasberg stripping thousands of Americans of their 1st and 4th Amendment rights in secrecy is the definition of a judge being a police state fascist? Not once, but multiple times?
You’re no better at defending and legitimizing his actions than the professor.
This is not a “documentary”, it’s an attack on the constitution. There is no “assault on America’s system of government”, but merely people exercising their constitutional right to persuade the voters to support candidates who agree with those people’s views. Which is exactly what the Democrat and Republican parties do; it’s also what such left-wing billionaires as George Soros does. But when individuals on the right do it this upsets the so-called “journalist” who made this hit piece.
There is no allegation that these people are getting anything in return for their money. So there’s no breath of corruption. They’re using their money for the good of the state, to get what they consider right and just legislation passed. How can anyone object to that?
“Such a pattern would undermine the independence and integrity of our court system.” Is Professor Turley attempting to be funny? Independence and integrity are long gone from the judiciary. But you gave me chuckle.
I have previously written that it would be a grave mistake to misuse impeachment powers to target judges or justices.
Well how brave of you to stand on the side of the blatantly obvious.
I respect Turley’s concern for judicial independence, but he’s getting ahead of himself here. Congress has the constitutional authority to impeach when it believes misconduct may rise to that level. That’s not “tit-for-tat” — that’s the mechanism the Framers built in to address abuses of power.
We don’t yet know whether the facts justify removal, but allowing the process to begin is not the same as convicting anyone. Let the inquiry proceed, let the House vote, and then let the Senate weigh the evidence. That’s how the system is supposed to work. I would have expected Turley, of all people, to defend that process rather than presume its abuse before the facts are even in.
I think I understand Prof T’s argument, and in almost any other circumstances I would agree with it. His argument (at least as I understand it) is that there is no inquiry to be made, because a judge’s rulings cannot ever be misconduct, and thus cannot ever be the subject of impeachment.
The consensus is that the failed impeachment of Samuel Chase established the principle that judges can only be impeached for their private conduct, off the bench, and never for how they interpret the law. To give Congress the power to second-guess their legal decisions would make the judiciary no longer independent.
Or, put another way, since the constitution vests the judicial power, i.e. the power to say what the law is, entirely in the hands of the courts, it follows that Congress can never say that a judge’s decision was wrong. To do so would require interpreting the law, and Congress can’t do that.
Where I think this case is different, is that I don’t accept that Boasberg was interpreting the law. I don’t accept that he really believed he was ruling in accord with the law, and using his power to sign warrants in good faith. I think he was knowingly misinterpreting the law, and conspiring with Smith to bring their enemies down. And that is not judging, it’s conduct. And it’s misconduct, which is impeachable.
Very well stated, Millhouse.The Chase precedent doesn’t grant judges immunity for bad faith actions committed under the guise of judicial function. If a judge knowingly conspires to weaponize the law, that’s not a difference of legal interpretation — it’s a breach of duty and a betrayal of the judicial oath.
That’s precisely why the impeachment power exists: to allow the people’s representatives to investigate when there’s credible reason to believe misconduct has occurred. Turley’s warning about “tit-for-tat” loses its force if the conduct in question truly undermines impartial justice. The process itself is how we separate speculation from proof — and Congress has every right to invoke it.
*. Well said Millhouse and Olly and Olly goes on to say, allow the people’s representatives to investigate. Unfortunately the people’s reps aren’t competent and like the boy in the subsequent article with the yin yang love belt the people’s reps will pick up the cards and toss them or shred the inaugural speech alla Nancy.
Boasberg is like the young man in the skirt trashing a table and should be suspended or expelled. Millhouse does point out off the bench conduct is needed. Investigate but don’t waste too much time on it.
OT: It was only 2 governors and a mayor in very blue States. Doesn’t mean much.
Condolences
OT: It was only 2 governors and a mayor in very blue States. Doesn’t mean much.
I saw this quote today and it seemed to be appropriate to yesterdays election results:
The forest was shrinking but the trees kept voting for the axe, for the axe was clever and convinced the trees that because his handle was made of wood he was one of them.
I wanted to find out the origin and this is what I found.
The Trees and the Axe (Aesop’s Fable)
A man came into the forest one day and begged the trees to give him a small branch for a handle for his axe.
The trees consented and gave him one of their branches.
No sooner had he fitted the new handle to his axe than he began cutting down tree after tree.
Then the trees saw how foolish they had been in giving their enemy the means of destroying themselves.
Moral:
When we give our enemies the means to destroy us, we have only ourselves to blame.
While agree in some sense yesterday doesn’t mean much, but it seems to reflect just how ignorant of history people can be.
Constitution does not give the judiciary ‘power to say what the law is”. The Court, in Marbury, opined THEY say what the law is – even when the text passed by Congress and signed by the Executive says nothing of the sort. Nor does it mean the Court “get’s it right” every time they make a ruling. For example, Roberts himself says ACA is a tax despite Congress turning itself inside out six ways from Sunday to prevent the word ‘tax’ ever being written into the bill. Courts are only empowered to determine if laws passed meet Consitutional muster. Any court that says, ‘because we say so’, can be overturned by Congress by recinding the law or changing it. The Consitution does not authorize the Judicial branch to re-write or ignore laws passed by the Congress after-the-fact.
The constitution EXPLICITLY gives the judiciary “the judicial power”. And that term MEANS “the power to say what the law is”. Marbury didn’t make it up, it’s right there in the constitution, and if you seriously think that’s not what the judicial power means, look in the Federalist.
It’s impossible to claim that the judicial power consists merely of determining whether laws are consistent with the constitution. If that were what it meant, then what did courts do for centuries before there even was a constitution? How could the delegates in Philadelphia, who were drawing up a constitution for the first time, have used a term like “the judicial power” without any explanation, if they had just invented it? No, the judicial power is the power that judges had already held for centuries. The power to say what the law is. You can find any number of 18th century references for that. And it was that power that the constitution vests in the federal courts. If you question it then you must also question what “the executive power” and “legislative powers” mean.
I think Professor Turley is wrong on this one. If not wrong, then he is inadequately interpreting the conspiratorial acts of Boasberg, Smith, et al. For example, Turley says, “There is no evidence to suggest that Boasberg engaged in such unethical conduct.” What would anyone, including Turley, expect there to be? If Smith was allowed by Boasberg to “fish” (as Sen. Grassley says) for evidence against Trump, as the nonexistent “evidence” suggests, then isn’t turnabout fair play, professor? Shouldn’t the FBI or whoever now fish, I mean delve, into Boasberg’s phone calls and emails to see what, if any, contacts he might have had ex parte on this with Smith, et al?
I tend to agree that impeachment may not be the appropriate remedy here, as it is used too frequently nowadays as a political tool, and there is already too much politics involved in this mess. The criminal statutes are preferred because they are unambiguous and not subject to the political whim of self-aggrandizing questioners motivated by ideology and a desire to score points for their side.
It is a civil rights violation to deprive someone of a right guaranteed to them by the Constitution. Trump was duly elected POTUS in accordance with the Constitution. There appears to be sufficient prima facie evidence that Boasberg and Smith, et al., by their criminal acts committed under the color of office, sought to deprive the people of rights guaranteed to them by Article II, Section 1, of the U.S. Constitution. Wake up, Kash Patel, this one’s in your bailiwick!
An officer without lawful authority cannot exercise the sovereign power of the United States. The Appointments Clause was violated, Smith was a private citizen masquerading as a federal prosecutor — and no court can enforce actions taken by someone without constitutional office.
Yet Bumsludge did.
Federal judges are absolutely immune from criminal or civil liability for actions taken in their judicial capacity — even if wrong, biased, or later reversed.
Impeachment is the only remedy for judicial misconduct — not criminal prosecution.
Turley is wrong. This judge abused his power for partisan gains. He committed a criminal conspiracy in doing so.
Impeachment is not only appropriate but necessary.
Hear hear!
Judicial immunity shields judges from civil liability for judicial acts. This immunity does not extend to criminal prosecutions, as the Supreme Court explained in O’Shea v. Littleton (and then reaffirmed in Imbler v. Pachtman and Dennis v. Sparks). I was thinking of 18 USC 242, on the color of law issue (“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both;” You are, of course, correct about immunity under most common circumstances but this case is unique from a number of perspectives and hardly fits any of the precedents we have. There has never been such an organized and persistent effort by any branch of our government to upend another branch.
The problem with that argument is that it rests on your assumption that Smith’s appointment was invalid. I’m sure that Boasberg doesn’t agree with that; and I’m also sure that even if he did agree he’d say he didn’t. He’s certainly not required to. And if he regarded Smith’s appointment as valid then it would follow that he was entitled to cooperate with him and sign warrants for him.
Nor can Congress decide that Smith’s appointment was invalid, because it has no power to interpret the constitution. See City of Boerne.
I think any proceedings against him must therefore assume that Smith was a valid prosecutor, and look for actions that would be misconduct even so.
The removal of a judge from the federal bench is a rare and weighty decision. It should not be based on differences over statutory interpretations, even when a judge is later reversed.
That’s all very well if the judge is acting in good faith, interpreting the law as he actually thinks it is. But it’s become clear that Boasberg has been acting in bad faith. He has been using his position as a weapon, to undermine Trump by hook or by crook, just like the judges of the USSR or other dictatorships. He was Smith’s accomplice, not a neutral finder of fact and law. If this doesn’t merit removal, what does?
Such a pattern would undermine the independence and integrity of our court system.
That assumes he has not already undermined it. But what if he has? Doesn’t letting him get away with it only undermine it further? How does the court system recover its integrity if judges are empowered to act as dictators? What if he and Smith had succeeded in locking up Trump and a dozen GOP legislators? It’s only luck that they didn’t. Where would it end?
Perfect
Republicans can now SPY on EVERY SINGLE Democrat…including Judges!
How in the world did you come to that delusional conclusion?
Boasberg did it. If he can’t be impeached for it, then why should Republicans not do the same?
so Democrats commit treason and are FIGHTING A Civil War to Destroy America
and GOP should keep being Nice
Question should the Democrats have arrested pretty much EVERYONE around Trump? Should random judges, CONTROL every aspect of America?
STEP OFF Jon… The Democrat Party is a CRIMINAL Operation, trying to DESTROY America!
Treason – got proof? Of course not. Take your meds. Please.
Memo to Professor Turley: so what response if any — other than turning another cheek and a blind eye to Boasberg’s exercise of “Imperial Judiciary” powers — would be appropriate? I’ll wait.
I agree with Professot Turley. He correctly points out that nothing the judge has done is a high crime or misdemeanor. He can be criticized for being wrong about the law, and we have a process. What is interesting and predictable is those on the right who always demand the harshest and most extreme punishments for things that they barely understand.
MAGA, and most of those on the right who are on a constant “war footing” in a party vs party context are always demanding punishment while understanding little on how things work. Judge Boasberg has the same immunity any government official has when they are doing their official duty. The subpoenas only asked for phone numbers, not conversations. That is one thing Professor Turley neglects to mention. That is perfectly legal, even for congressmembers. Smith sought to draw connections between congressmembers and some of those Jan 6 rioters who were allegedly coordinating the agitation of the crowd. It’s still only an allegation, but Smith was obligated to investigate that connection. Because such actions are certainly not part of their official duties and responibilities. Those actions would fall outside of the constitutional protections they claim they are entitled to. If Smith was able to convice Judge Boasberg of the connection, he would have at least had a legal reason for allowing the subpoenas.
Everything is correct.
Its over for MAGA. Long live MAGA!
“I agree with Professot Turley.”
A First! Our Mad King George X showed up prepared for his daily snapping and snarling at Professor Turley’s heels and discovered that they both wanted to defend and explain away Boasberg’s criminality and Democrat police state fascism.
How long will this kiss and make up last?
How did Boasberg get assigned so many Trump cases? Isn’t he on the wheel for random assignments? Or did he decide that too?
Random does not exist the DC universe.
There is condemnation by faint praise. With Boasberg, Turley saves by faint criticism. Corrupt criminal judges like Boasberg couldn’t survive repeatedly stripping hundreds of Americans of their 1st and 4th Amendment rights if their continued status as a sitting judge were not defended by equally corrupt fellow Democrat lawyers.
Generally I don;t think judges should be impeached for their rulings. Just appoint more judges to outweigh the ones that went wrong. But this case seems to me different:
1. Since Jack Smith’s appointment was ruled illegal, every single one of those subpoenas was illegal. Boasberg’s role in facilitating illegal subpoenas is certainly impeachable.
2. The subpoenas were an encroachment by the executive and judicial branches on the privileges of the legislative. What tool, besides impeachment, is available to the legislature to punish this encroachment and deter similar such encroachments for the future.
Good comment.
Good point, but bear in mind that the only judge who has ruled Smith’s appointment illegal is Aileen Cannon. If Smith had been able to appeal that decision it’s likely the 11th circuit would have rejected that novel and controversial theory. Boasberg is not required to agree with Cannon, and is certainly not bound by her decision.
Still, he appears to have acted in bad faith, and that should weigh heavily in favor of impeachment.
“If Smith had been able to appeal that decision it’s likely the 11th circuit would have rejected that novel and controversial theory. ”
And then SCOTUS likely would have kicked Smith to the curb for his even more controversial creation of new interpretations of law for the SECOND time.
The internet and SCOTUS remember Smith’s first assignment as a Democrat president’s political assassin, even if you don’t.
Millhouse,
You keep mentioning misconduct. Could you please clarify what you believe constitutes misconduct from Judge Boasberg?
The Republicans are exaggerating the context about the phone records that Smith sought. What is certainly permissible are the types of records Smith requested. The subpoenas sought “toll records” (which include details such as the time, duration, and numbers called) for eight Republican senators and one House member. Importantly, these do not include the content of any communications, and therefore, they do not violate the constitutional protections they claim to have.
This does not amount to “spying” or obtaining details of conversations, which would not have been legal for Judge Boasberg to allow. The numbers, times, and lengths of calls are not protected under the Constitutional clause because they do not involve specific communications. This is the crucial detail that Professor Turley conveniently overlooks.
For these reasons, Boasberg’s actions cannot reasonably be considered misconduct.
Answered elsewhere. The misconduct is the same as that of which Nixon was accused in Watergate, but much worse.
The commenting system here is very confusing and difficult to navigate. My only way of checking for responses to my comments is to search for my name. So if you misspell it I won’t see it except by accident.
People, MAGA is done for. Yesterdays Dems election wins is the death knell for MAGA. Long live Boasberg!
The midterms will be a disaster for MAGA. Its over.
Oh yes! Democrats winning elections in heavily Democrat areas is the signal to run Mamdani as Communist For President in three years!
Now you get it man. MAGA is toast. Heard Greenland is open for US refugees.
The difference is that you continue to think Boasberg is entitled to the presumption that he acted in good faith. I started out years ago trying to attribute good faith to his actions, but over the years it’s become ever more difficult, and this latest revelation has blown any such presumption out of the water. I now believe he acted in bad faith, that he has been acting in bad faith all along,
The argument that we should avoid “tit for tat” political scuffles is all well and good for maintaining decorum but it does have a severe weakness. Bad actors can use that argument to cover for actual abuse. All things are not equal.
It certainly looks like Boasberg is corrupt in the sense that he shows severe bias and poor judgement. Charge him for deprivation of rights or impeach him, either way he gets a trial.
The jury of his peers should be a dozen Jan 6 American victims of judicial abuse IMHO.
What’s the difference between bias and severe bias? Just asking for a friend.
Bias allows plausible deniability and takes many data samples to prove.
Severe bias appears to be blatantly wrong, like spying on US Senators and issuing gag orders not supported by a single piece of evidence.
Boasberg looks more like a deep state criminal infiltrator than a functioning judge to me.
Agree, if impeachment doesn’t fit then what’s the next opening for removing him under the Constitution? After a long pattern of abuses, bias and corruption (Russia collusion conspiracy) I would see Boasberg as a Jack Smith coconspirator in the abuse of our legal system. I would at the very least believe that he should be investigated, prosecuted and removed from office on this issue as it is in agreement with the prescribed procedure for removal under the Constitution.
There is no way to remove a judge, other than impeachment and conviction.
Agreed, so impeach the SOB. As Smith was never duly established by Congress as a Special prosecutor, he was nothing more than a Democrat schilling hitman with Boasberg serving as his wingman.