Last week, Chief Judge James Boasberg delivered a blow to the criminal investigation into Fed Chair Jerome Powell by tossing out grand jury subpoenas. Boasberg declared the investigation overtly political and coercive, without any criminal predicate. The decision is a rare rejection of a duly issued grand jury subpoena at this stage of an investigation. In my view, he was premature and could face a difficult appeal in In re Grand Jury Subpoenas, Bd. of Governors of the Federal Reserve System v. U.S.
I have previously expressed skepticism about the investigation into Powell and share concerns about the alleged use of the criminal justice system to pressure the Federal Reserve Board. However, the question is when a court can make such a judgment at this stage of the investigation. Prosecutors are generally entitled to make their case and these subpoenas sought potential evidence of waste or corruption.
Boasberg has long been one of the most vocal critics of President Donald Trump on the bench, including a series of orders to stop the deportation of immigrants to El Salvador and, recently, an order for their return. He was also the subject of an ethics complaint by the Administration over statements made at a judicial conference that portrayed President Trump as a threat to the rule of law. (For the record, I opposed the effort to impeach Judge Boasberg).
In the latest controversy, Boasberg rejected the premise of the criminal investigation of Powell:
“The case thus asks: Did prosecutors issue those subpoenas for a proper purpose? The Court finds that they did not. There is abundant evidence that the subpoenas’ dominant (if not sole) purpose is to harass and pressure Powell either to yield to the President or to resign and make way for a Fed Chair who will.”
Judge Boasberg quotes Trump’s personal attacks on Powell after he continued to refuse to lower interest rates. These include signature all-caps attacks from the President:
“Jerome ‘Too Late’ Powell has done it again!!! He is TOO LATE, and actually, TOO ANGRY, TOO STUPID, & TOO POLITICAL, to have the job of Fed Chair. He is costing our Country TRILLIONS OF DOLLARS …. Put another way, ‘Too Late’ is a TOTAL LOSER, and our Country is paying the price!”
Boasberg noted over 100 such postings, including “‘Too Late’ Jerome Powell is costing our Country Hundreds of Billions of Dollars. He is truly one of the dumbest, and most destructive, people in Government …. TOO LATE’s an American Disgrace!”
He also noted a menacing statement by the President that, if the Fed does not cut rates, “I may have to force something.”
This is not the first time that the President’s social media postings have been used as evidence against Administration policies in federal cases. Many of us have criticized the President over personal attacks on judges or other officials. However, courts generally do not impute an unlawful motive to criminal investigations or prosecutions if there is an otherwise valid purpose or allegation.
Judge Boasberg dismisses any such possibility of a valid purpose, writing:
“The case thus asks: Did prosecutors issue those subpoenas for a proper purpose? The Court finds that they did not. There is abundant evidence that the subpoenas’ dominant (if not sole) purpose is to harass and pressure Powell either to yield to the President or to resign and make way for a Fed Chair who will.
On the other side of the scale, the Government has offered no evidence whatsoever that Powell committed any crime other than displeasing the President. The Court must thus conclude that the asserted justifications for these subpoenas are mere pretexts. It will therefore grant the Board’s Motion to Quash. It will also grant the Board’s Motion to Partially Unseal the Motion to Quash, related briefing, and this Opinion….”
Once again, I do not fault the court for skepticism, but I do have serious concerns over his timing and his own possible bias in issuing such a ruling.
The Administration has an active but still early criminal investigation into the massive spending on renovations to the Federal Reserve building. To that end, the Justice Department served two subpoenas on the Federal Reserve Board of Governors, seeking records about the renovations of the Board’s buildings as well as Powell’s prior congressional testimony on those renovations. The Board filed a Motion to Quash, contending that the subpoenas are a raw play to force Powell to resign or to bend to the will of the President.
After reading the Boasberg opinion, my concerns only increased. At every juncture, Judge Boasberg ends his analysis with conclusory statements about his perception of the real motivation behind the case. That is a dangerous propensity for an Article III judge who must separate the politics from the merits in such challenges. In this case, Boasberg simply concluded that politics was the merits.
The court notes, correctly, that there are prior cases where grand jury subpoenas have been found improper if they are simply “fishing expeditions” or targeting “targets of investigation out of malice or an intent to harass.” They can also be quashed if prosecutors are seeking to meddle with an official’s duties. Such cases are very rare and the cited cases do not seem dispositive or even particularly helpful in the instant case.
The problem is that the main precedent relied on by the court suggests that this opinion is not just premature but itself an example of bias.
The court relies on Trump v. Vance to support the authority to quash an indictment. However, that case involved state prosecutors using grand-jury subpoenas of financial records of President Trump and his businesses. Without actually ruling on whether the subpoenas were proper, the Court warned that state DAs cannot use grand-jury subpoenas to “interfer[e] with a President’s official duties.”
That case presented a threshold problem of state officials using the grand jury to target a president with obvious concerns over the Supremacy Clause. Judge Boasberg rightly noted that the clear import is that “a government official cannot do indirectly what she is barred from doing directly ….”
However, this is not something that the Justice Department is “barred from doing directly.” It has stated that the over-budget renovations raise concerns over fraud and wrongdoing. That is squarely within the jurisdiction of the Executive Branch.
Judge Boasberg cited cases such as NRA of Am. v. Vullo, 602 U.S. 175, 190 (2024) as an example of the bar on doing indirectly what you are barred from doing directly. However, like Vance, that case only makes this opinion stand out more. The case involved a New York state official using her powers to pressure banks and other companies not to do business with the NRA. That is manifestly different from the context in which prosecutors seek to enforce duly issued subpoenas to investigate possible fraud or waste in the criminal system.
Judge Boasberg then veers significantly from these cases with a series of conclusory remarks. He virtually mocks the suggestion that the Administration is acting in light of the massive costs and overruns, noting “buildings often go over budget.” Yet that does not mean federal officials are therefore barred from launching investigations into such matters.
The court further stresses that budget overruns “standing alone, hardly suggests that a crime occurred.” The question, again, is whether the required threshold is showing. The costs of the federal building are breathtaking and arguably unprecedented in terms of square foot expenditures. The court does not explain what showing is necessary to commence a criminal investigation. This is an early subpoena seeking basic documentary evidence.
The court notes that inspectors general have authority to investigate overruns and waste, adding that there was no such finding in this case. However, once again, the question is why that is relevant to the question before the Court. The IG may indeed be a better avenue for investigation, but there is nothing legally that forestalls an investigation by the Justice Department.
Once again, Judge Boasberg has voiced concerns shared by many on the basis of this criminal investigation. However, that is speculation in commentary. Judge Boasberg is not a talking head. He is a federal judge who must decide whether, despite such personal suspicions or inclinations, the court can bar otherwise valid grand jury subpoenas issued in an early stage of investigation.
The irony is that, while castigating the prosecutors for a lack of evidence, Judge Boasberg relies on dubious evidence to establish that political harassment is the dominant motivation. Quoting all-caps postings of the President does not offer evidence of a sole or dominant motive in an investigation. It is itself speculative and presumptive.
While Judge Boasberg notes that, “[w]ith varied improper purposes popping up on different occasions, it is clear that such purposes cannot be reduced to a fixed and exhaustive list,” he does not offer any clarity on when an investigation into fraud or waste would be demonstrably valid in its earliest stages. The court acknowledges that the Supreme Court has held there is no need for the Government to establish probable cause as the basis for issuing a grand-jury subpoena. So that is the standard here other than Judge Boasberg’s suspicions based on public statements from the President?
The court merely states
“What the Court must determine is whether the Board is correct in its inference. In other words, what is these subpoenas’ dominant purpose? A mountain of evidence suggests that the dominant purpose is to harass Powell to pressure him to lower rates.”
That dominant purpose is far from evident. There is no evidence that Powell will yield to the pressure to lower rates, and many of us have noted that this would be a particularly ham-handed effort to get him to do so. From what we have seen, Powell has little to fear from this inquiry on a personal level. If anything, the improper purpose would seem like raw retaliation. However, there is also the pesky claim in the grand jury and captured in these subpoenas that the Administration believes that there is fraud or waste – and the possibility of false testimony. How would the court know at this stage that such claims are meritless or fraudulent? More importantly, what would stop future courts from rendering the same inferential judgment on presidents that they oppose?
Rather than answer that question, Boasberg returns to all-caps posts about how much the President despises Powell and wants him gone. The problem is that both positions could be true. The President could want Powell gone while the Justice Department could want to investigate waste and fraud.
For example, Boasberg quotes Trump as saying “we’re thinking about bringing a gross incompetence, what’s called a gross incompetence lawsuit, it’s gross incompetence, against Powell . . . I’d love to fire him. Maybe I still might.”
The problem is that Trump could believe that Powell is grossly incompetent and that he allowed massive overruns on this project. Boasberg just assumes that Trump wants Powell gone and even makes a veiled analogy to King Henry II signaling to his henchmen to kill Thomas Becket: “In sum, the President spent years essentially asking if no one will rid him of this troublesome Fed Chair.” (In this modern remake, apparently the murderous King is Trump, the saintly Becket is Powell, and the henchman is Pirro).
What is particularly disturbing is how the court dismisses the independent ethical duty of U.S. Attorney Jeanine Pirro to have a good-faith basis for seeking such subpoenas. Judge Boasberg writes:
“True, most of the evidence above speaks to the motives of the President, not the U.S. Attorney’s Office. Yet judges ‘are not required to exhibit a naiveté from which ordinary citizens are free.’ Dep’t of Com. v. New York, 588 U.S. 752, 785 (2019) (quotation marks omitted). The U.S. Attorney was appointed by the President and can be fired by him. Her peer one district over was recently pushed out for refusing to prosecute the President’s opponents.”
This, for me, was the final abandonment of objectivity where assumptions become reality. By dismissing Pirro’s independent motivation, Boasberg leaves the weight of his own evidence as a string of social media posts. He ignores a major push by the administration to seek out government waste and fraud, which began with the DOGE efforts and was recently followed by the appointment of a “tsar” to root out fraud in federal programs. There is no serious debate that this Administration has made combating fraud and waste a priority and has taken unprecedented steps to investigate and prosecute such wrongdoing. Yet the court suggests that Pirro is merely clinging to her job by blindly carrying out the President’s demands.
None of this means that the court would lack the authority or a possible basis to dismiss this action at a later stage. My primary concern is the timing and the court’s presumptive analysis at this early stage. I fail to see a discernible standard in this case that would inform future courts or officials … other than presidents should not post in all caps or troll officials. While Judge Boasberg chastises the Justice Department for yielding too readily to its impulses, this opinion seems strikingly impulsive in critical aspects.
The Justice Department is appealing this opinion. We may see greater clarity on the underlying standard as the case works toward the Supreme Court.
Here is the opinion: Boasberg Opinion
This is an excellent essay. Many presidents have been critical of Fed chairmen, some more publicly and some more harshly than others. Such criticism should not immunize a Fed chairman from investigation for potentially criminal conduct, so long as proper investigative procedures are followed. There is no evidence here that anything DoJ or the grand jury did was procedurally or substantively improper. Boasberg’s arrogant opinion discards objectivity and disregards the actual standard set out in the statute for quashing a subpoena (“unreasonable or oppressive”) and instead relies without any evidence beyond Trump’s public criticism of Powell regarding interest rate policy on a rarely applied doctrine relating to improper motive. This is further proof that he has become a rogue judge, an Ahab pursuing his white whale. This ruling should be overruled on appeal.
Not an essay Dan, its an opinion. A personal observation by Turley based on his observations.
Trump’s public attacks on Powell is enough to prove “oppressive”. Trump made it a political prosecution and the judge can’t ignore that.
Daniel,
Well said.
Appeals court panel quashes Judge Boasberg’s contempt proceedings over Alien Enemies Act deportations?
How about we FIRE judges that KEEP getting OVERRULED?
Correction — Louis XIV not the XIII. Sorry.
Gee a Judge WHOSE only job is to HARM Trump and America?
Has he EVER MADE A legal ruling?
This is the GUY who OVERSAW political inspired investigation after investigation of Trump?
Times up…to INVESTIGATE Boasberg. IT IS 100% Obvious Democrats USE government for THEIR Politics!
“If you don’t impeach the corrupt judges, you CANNOT fix the country.” Nayib Bukele
So the USA is the same as El Salvador?
Can’t fix stupid folks.
We certainly haven’t been able to fix you, have we.
We certainly haven’t been able to fix you, have we.
The place to get down wid it is the SCOTUS. Right before it’s expanded it needs a special counsel looking into its corruption & the immunity decision.
It seems Boasberg is using a political rather than legal basis for this decision. Powell’s term is ends in May when he has to decide to accept a lower status of Governor or retire. Powell has virtually no incentive to reduce rates or resign based on the President’s exhortations, or even his proposal of named replacement. The judge allows no emphasis on either the cost of overruns $0.6- 1 billion or the testimony. It seems this will be reversed at the SCOTUS or before.
Political? And if he is, so what? If Trump would calm down and stop throwing tantrums, act as president of us all, then he’ll get the respect the office deserves.
It may be posited that Boasberg represents the reincarnation today of the Third Reich’s Volksgerichtshof https://en.wikipedia.org/wiki/People%27s_Court_(Germany). Hope that triggers the leftist commenters here.
Nazis? Folks, more stupid from conservatives.
from the screwballs that have been calling everyone not them Nazis for the past 70 years
I’m with Olly who presents a good case for letting the case go on. And I must also point out that the sitting President was a developer who was known for planning and building projects that often came in under budget and on time. And therefore this President likely knows more about this subject than most attorneys and most, if not all of Washington.
The budget and cost overruns are breathtaking for a building project. It’s not as if they are defining some new technology in building .
Maybe they should just have put all of Washington DC under some drafty pole barns.
Mr. Powell seems to want The Federal Reserve to be a project on the scale of Versailles but without the incredible gardens. Powell as Louise XIII. Maybe he wants a wig and all.
Not that Olly has any coherent opinion. Or you. Buried under all that word garbage is the mind of a 12 y/o screaming for attention.
That’s because you guys are cretinistic bleach drinkers.
The President is famous for saying “success is my revenge,” and so it will be the same when the DC Circuit reverses Boasberg, likely unanimously. To be reversed on a technical question of law is one thing but to be reversed for simply being incorrect on the law is the absolute punishment for a federal judge. Boasberg is a disgrace to the bench and is incapable of rising above his ideological disdain for our President. His fifteen minutes of fame is long gone – as he should be.
Trump is a disgrace to the USA. Send him to Iran and let him end the war by dying for his country. And all you old cretins here should go too. You’re lives are over, now go something for the youth of America.
Young folks who grow up learning grammar and spelling from texting short messages lose their ability to think straight because they cannot properly explain themselves. For example, look at how many young people misuse the word “your” for “you are” or, as in this case, “you’re” for “your.” Even our colleges and universities have to provide remedial English courses for incoming freshmen who are nearly illiterate in their native language. And we are then expected to listen to them? Amazing!
JJC,
And to think, that annony whom cannot discern between “your” for “you are,” or “you’re,” is the same annony who cannot tell the difference between “by,” “buy,” or “bye.”
The annony must be a recent Harvard grad.
Trump’s only problem is Israeli influence over him and far too many US politicians. The nature and level of support for Israel should be decided by the people of the US and their representatives, not by Israelis wielding AIPAC/Epstein drones and people like Jared Kushner.
Apart from that, his policy positions are the best in a long time.
JJC,
Well said.
Seems Boasberg is willing to to die on this hill to “Get Trump!”
With a successful reversal, Boasberg disgrace will be complete and will reflect in history.
Good for Boasberg in stepping in to block the clear political bullying and intimidation tactics of trump while sell outs such as yourself navel gaze and knuckle under to those tactics, Turls.
Correct. The judge emphasized that “the Government has offered no evidence whatsoever that Powell committed any crime other than displeasing the President,” referencing numerous public attacks by President Donald Trump on Powell. Boasberg concluded the investigation was “pretextual” and lacked credible legal justification.
Trump thinks he’s Caesar. Hope he gets what’s coming next. Destroy MAGA Forver!
Ides of March, damn, missed it by 24 hours. Always next year. Destroy MAGA.
+100
Anon: Even if we assume, arguendo, that what you said is correct, it does not justify the judge creating a convenient excuse for not doing his job, which is to stay out of the Executive Branch’s job of pursuing investigations. Should anything come of the grand jury investigation and the matter proceeds to trial, then Judge Boasberg gets to play his hand. When the system works, we all win. When a judge tries to play prosecutor or vice versa, we all lose. Simple as that.
Executive branch doing its job? I wonder then what’s the DOJ’s job?
JJC,
What you are describing is common sense. Not a common trait for the annony.
Even a broken clock is correct twice a day.
It does look like bullying. On the other hand, Powell’s unnecessary remodeling with its grifty corrupt looking cost overruns is definitely grounds for an investigation.
No president is above the law. Good work Boasberg.
Anonymous replying to himself three times as he thinks we don’t know they are all the same person.
What’re you going to do about your ‘he’ versus ‘they’ conundrum, Slobby?
are judges ABOVE the Law?
+100
A fascist in a black robe is still a fascist. Boasberg is not neutral in any sense. His hatred of Trump makes Boasberg incapable of being fair and impartial.
And Trump’s public hatred of Boasberg and Powell is then okay?
Suckers and losers… basket of deplorables… ranting about half the country being violent and nazi…
Oh wait, those were all Democrats, not republicans. You’ve been using the same rhetoric since the end of WW1. get new material or get a new affiliation, either way, get out of the way.
And, because I know you like pronouns, mine are Lord/Master. Address me as such when replying.
Judges should he rated and held accountable by a scorecard based on the percentage of cases overturned on appeal. Curious where that stands with cases involving the Trump administration and this clown
Yes, district court judges can be evaluated using scorecards, though these are typically not used for appointment and vary significantly by jurisdiction and purpose.
Judicial Performance Evaluation Scorecards
In some states, like Colorado, a formal judicial performance evaluation process uses a scorecard-like system. This includes:
Surveys from attorneys, court staff, and the public.
Courtroom observations.
Opinion reviews.
Interviews with judges. The data is compiled into a comprehensive evaluation, which voters can review before deciding whether to retain a judge in a retention election.
The real question here, dodged by Turley, is not whether or not this particular ruling (I intentionally avoided using the word “decision”) is or is not sound. The question is why Boasberg has yet to be impeached for his endless series of apparently extra-constitutional and un-constitutional edicts from the bench. This raises the question of whether the woke Dems even need to use the tactic of packing the Supreme Court after winning the Presidency and majorities in both Houses to destroy our nation. If all of the woke judges who have infiltrated the lower levels of the Federal court system can continue their sabotage substantially unimpeded, in the same manner as Boasberg, the wokistas may have already won.
Impeached? Because he offends you?
Don’t worry. Maybe one day your bleach drinking problem may sort itself out.
Warren Buffet once said, “I could end the deficit in five minutes. You just pass a law that says that any time there is a deficit of more than 3% of GDP, all sitting members of Congress are ineligible for reelection.”
Congress would never pass that law. It would hold them accountable. So, it’s a non-starter. But if a majority of the electorate opposes rogue judges, then why wouldn’t Congress pass a law similar to Buffett’s proposal but applied to judges rather than Congress?
For example, pass a law that judges who are overturned on appeal “X” number of times during a certain period will automatically have their annual salary reduced to $1.
It holds judges accountable for their poor decisions, relieves pressure up the appellate courts now mired down by appeals to fix the terrible rulings made by rogue judges, and effectively forces the judges to resign based on their poor performance after their annual pay is reduced to $1.
This Judge has for years issued Warrants, Subpoenas, Injunctions and Rulings, that are clearly based on his Bias and motivated by animus. We need only look at his work on FISC to see exactly what this anti-constitutional Judge has in mind for his next Judicial Branch Coup ruling.
“that are clearly based on his Bias and motivated by animus…. ” And you’re the only one who see it that way.
I see the same as many people do, today’s comment section will evidence that. Watch and learn…
Um… learn what? That conservatives are blood thirsty animals and need to be put down.
Learn that you are a parasitic little juvenile.
Eight Ball,
Right you are!!
As I read your piece and Judge Boasberg’s opinion, I keep coming back to some very basic rule of law instincts.
We actually do have concrete facts here. There is an approved renovation, a huge cost overrun, and sworn testimony by Powell to Congress about that project. Those are precisely the kinds of facts that ordinarily justify a criminal investigation into possible waste, fraud, and false statements. In that posture, it seems to me the executive is not doing something exotic or constitutionally suspicious; it is doing what we expect it to do with any big, messy federal project.
Once you accept those facts, I do not see this as an extreme case that justifies a special motive screen. The Justice Department should be allowed to use the normal tools, such as a grand jury, subpoenas, and document requests, to find out whether there is anything there. If there is not, the investigation dies on the evidence. If there is, the case can move forward. That is the same standard I would apply to a defense secretary, an energy secretary, or a HUD official. I do not see why the Fed chair should occupy a different legal tier simply because his portfolio happens to be monetary policy.
My concern is that Judge Boasberg effectively flipped that order. Instead of starting with the legal question, which is whether there are plausible elements of a crime to investigate, he started with motive, reading presidential tweets and political context as abundant evidence that the dominant purpose is harassment. But “justice is blind” is supposed to mean we focus first on the legal predicates: whether there is an object of investigation that fits within the criminal law, and whether the subpoenas are lawful on their face. Motive questions, especially in a politically noisy environment, should be handled carefully and usually later, once there is a record.
That does not mean I am indifferent to abuse. If, through the very process of investigation, it turns out that the real aim was to coerce Powell on interest rates rather than to uncover waste or lying to Congress, then by all means shut it down. At that point there would be something more than inference; there would be evidence of misuse of the criminal process. And that is exactly where Congress, inspectors general, and, if necessary, impeachment and internal discipline should come in, investigating the investigators and holding the president and the Justice Department to account.
But I do not think you get there by preemptively blocking subpoenas at the threshold based largely on public bluster. That feels less like guarding the separation of powers and more like a district court deciding in advance that this particular ham sandwich is too politically sensitive even to be put in front of the grand jury. To my mind, the better separation of powers model is one standard for everyone, let the legal process run its course, and then use oversight and constitutional remedies if that process itself is abused.
You got a point somewhere in all that garbage?
Parasite!
Agreed Olly, Boasberg is a clown with repetitive rulings based solely on his disdain for Trump. Just another Bolshevik throwing sand in the gears at every opportunity.
OLLY,
Great comment and spot on!!!
Boasberg’s argument is garbage – by his standards if a president or politician is critical of someone for their policices that person then becomes immunce from investigation or prosecution.
Further, in what world do DOJ need proof beyond a reasonable doubt to demand records from the FED ? It should not have required a subpeona to get the information that DOJ was after.
These are NOT subpeona’s of powels personal banking records – which DOJ could have gotten without a subpeona. They are records of the construction costs of a project that is being paid for by the public, that there are many many questions about. Even if there were no questions – these records should be available to DOJ on demand – WITHOUT a subpeona.
DOJ did not subpeona records regarding the FED’s decision making process. They subpeonad records of construction costs regarding a public project.
There is absolutely no PERSON with a 4th amendment right here.
Boasberg has proved to be a disaster – Making up things as he goes. He has had no problems signing off without reading baseless subpeona’s against Trump or members of congress – and doing so with gag orders so that there was no possibility of a motion to quash such as here.
Boasberg has GOT TO GO. He is the epitomy of political bias.
Bias is NOT determined by what people SAY, but by What people DO.
Another nitwit who thinks he knows DC law. No brains Say.
FYI, a much better example of a nitwit would be someone who resorts to childish ad hominems because they lack the intellectual heft to refute the substantive argument advanced by another.
In a gross generalization, it seems the Democrats, often through their zealot Boasberg, are using the same tactics against Trump through punishing the TSA as the IRGC is using against Trump by closing the Strait of Hormuz. Holding them hostage. Both Dems and the IRGC are losing; both hate Trump; both have only the power to delay and obstruct; neither have popular issues. The age of rage is fueled by pure hate, virtually suicidal hate.
The Professor is being much to kind to Judge Boasberg, who has demonstrated, time and time again, his hatred for President Trump and his own megalomania.
God fearing, democracy loving American needs more Boasbergs. Destroy MAGA. Once and for all.
Yes. At a time of bankrupting federal budget deficits and the discovery of massive frauds, the last thing we need is prosecution of the fraudsters.
(-: