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.