Mr. President, I am here on the floor for the 36th speech in my ‘‘Scheme’’ series, calling attention to the rightwing scheme to capture our courts and justice system. It has morphed from stacking the Court with billionaire-selected Justices to now putting pressure on sitting judges to try to get them to do what the Trump political operation wants. It turns out that the rightwing interests don’t always like it when the courts they worked so hard to capture just don’t deliver.
Last week, the Judiciary Committee’s Federal Courts Subcommittee held a hearing on impeaching rogue judges, it was called. My Republican colleagues argue that Federal judges should be impeached and removed from office for ruling in ways that MAGA doesn’t like.
Over the past year, there is a backdrop to this, which is that Federal judges and their families—and their families—have been the victims of a campaign to smear and attack judges who rule against the Trump administration. It is pretty clear that many of these calls for impeachment are just a tactic in that intimidation campaign.
There are some tells.
Tell No. 1: It is rare for a Senator to call for a judge’s impeachment because the Senator would be a juror, and it is hard to be an impartial juror later if you already called the defendant guilty.
Tell No. 2: Impeachment isn’t a remedy for judges getting decisions wrong. Appeal is that remedy, as the Chief Justice has clearly stated. Impeachment is a remedy for actual misconduct. Virtually everyone has agreed on that for almost 200 years. When Senators start saying the almost 200 years of law history is wrong, that is a pretty big hint they may have another agenda.
Tell No. 3: If Republicans were serious about rooting out judicial misconduct, we probably would have gotten answers about Clarence Thomas paying his taxes. There is evidence that Justice Thomas may have broken criminal statutes. We know he failed to report on his financial disclosures more than a quarter of a million dollars in income from a forgiven loan, not to mention the undisclosed boondoggles of private jet and yacht travel. Well, that raises a very obvious question: If income wasn’t declared on his judicial disclosure report, did he also not report it to tax authorities? I have asked that question. Thomas has refused to answer it. Whether, when, and by whom his taxes on that income were paid are all unanswered questions. None of my Republican colleagues seem interested in that misconduct even though ordinary people are regularly prosecuted for tax violations and false statements.
Tell No. 4: My Republican colleagues don’t seem at all interested in how their impeachment threats egg on more nefarious and dangerous threats against judges and their families. The campaign of threats under the shadow of which the Federal judiciary is now operating is unlike any time in memory. Also, there is significant evidence that this campaign is being orchestrated. Yet the Marshals Service and our MAGA DOJ have repeatedly refused to confirm that they would investigate for orchestration or conspiracy or enterprise. That is worth looking into. That might have been a good subject for the hearing, but that is not what it was about.
Tell No. 5: This is a big one. One of the judges my Republican colleagues want to impeach—the prime target, in my view—is Chief Judge James Boasberg of the DC District Court. Few judges have been singled out more for MAGA attacks than Chief Judge Boasberg. What are his sins? Well, he sentenced January 6 rioters who President Trump unleashed on this building 5 years ago. MAGA world has since decided that no crimes were committed that day. That is new.
At the time, Senator CRUZ, who called the hearing to impeach Judge Boasberg, described those crimes as a ‘‘violent terrorist attack on the Capitol.’’ That was then. The campaign against Chief Judge Boasberg very much involves the MAGA DOJ. What are his sins there? Well, first, FBI Director Patel tried to scapegoat Chief Judge Boasberg as the person stopping Patel from being honest with the Judiciary Committee about his grand jury testimony in the Mar-a-Lago classified records case. I asked him what he told the grand jury. It is black letter law that a witness is allowed to disclose his own testimony to a grand jury, and Patel had testified before that grand jury. He did so only after he had asserted his Fifth Amendment rights against self-incrimination and was given immunity from prosecution.
The obvious implication is that whatever Director Patel told that grand jury put him at risk of prosecution, and we wanted to know what crime Patel thinks he might have committed. It is kind of relevant when he is now the Director of the FBI.
Director Patel lied to us in the committee that he couldn’t describe his testimony based on a supposed court order from what he called the DC district chief judge. Guess who that is. Chief Judge Boasberg. Chief Judge Boasberg later exposed that lie in a related proceeding, saying that Patel could ‘‘divulge the contents’’ of his own testimony and ‘‘nothing was preventing him from doing so before the committee.’’
So he blew up Kash Patel’s lie. That meant, when Patel came back, he had to invent a new lie to avoid answering that question.
Second is another MAGA DOJ sin. When the MAGA DOJ wanted to illegally jet people out of the country in the dark of night to an El Salvadoran prison, Chief Judge Boasberg was on duty, and he ordered that stopped. This infuriated the MAGA DOJ. Then-Principal Associate Deputy Attorney General Emil Bove told DOJ lawyers that if courts stopped these deportations, they would need to be ready to tell those judges ‘‘f you,’’ using the full four-letter word. Chief Judge Boasberg became the target of that Bove ‘‘f you.’’
In that matter, considerable evidence of contempt of court by DOJ officials caused Chief Judge Boasberg to notice probable cause and schedule contempt proceedings. That, I think, is the heart of this whole messy situation. One of the subjects of that contempt proceeding was now-Judge Bove. As that contempt proceeding went forward, two Trump judges on the DC Circuit stepped in, and they blocked that contempt hearing. They blocked it using something called an administrative stay, which is the procedure that usually lasts for hours, days, or at most a week or 10 days.
They blocked that contempt hearing using an administrative stay for 4 months. Guess what happened during that 4 months. Republicans hustled none other than Emil Bove onto the Third Circuit Court of Appeals with no factual record from any contempt proceeding for the committee to see. Bove’s judiciary hearing was so important to MAGA that Bondi and Blanche, her Deputy, came over to the hearing to give the eyeball to Republicans on the committee.
Later, the administrative stay was lifted, and the full DC Circuit cleared Chief Judge Boasberg to resume his contempt proceedings. Well, that decision came down on a Friday. On Monday, a handful of Republican Senators sent a letter to the DC Circuit chief judge seeking District Court Chief Judge Boasberg’s suspension while Republicans thought about impeaching him. Cleared to proceed Friday; the letter for suspension drops Monday.
The letter itself makes no sense. The judiciary just doesn’t suspend judges because some random Members of Congress call for impeachment. But anything goes to stop the contempt proceeding into Trump’s MAGA DOJ.
Adding to this, the MAGA Attorney General filed a misconduct complaint against Chief Judge Boasberg based on a private comment he allegedly made at a private meeting of the Judicial Conference. That is an administrative body. That has nothing to do with the cases judges hear. The AG and Members of Congress are invited—I often attend—and its proceedings are private. So the AG’s complaint was a major breach. The alleged offending comment was this: that Chief Judge Boasberg ‘‘raised his colleagues’ concerns that the administration would disregard rulings of Federal courts, leading to a constitutional crisis.’’ If you don’t see the ethics violation there, well, you are not alone.
This so-called ethics complaint looks preposterous to this Senator. It looks like it is a strategic device to have something to complain about to block the contempt proceeding.
It gets worse. In November, Trump’s personal lawyer—now the MAGA Deputy Attorney General, Todd Blanche—went before the Federalist Society to urge what he called war—war—against Federal judges, particularly ones who are ‘‘repeat players’’ or ‘‘stop an entire operation or an entire administrative policy.’’ He did not say Chief Judge Boasberg’s name yet, but it was clear who was in the zone of his war threat.
But last week’s Judiciary subcommittee hearing was not as subtle. The backdrop to last week’s hearing was Republican Senators breaking norms and 200 years of history to call for impeaching judges because of those judges’ judicial decisions. Those same Senators ignore proof of real judicial misconduct of not filing your disclosures correctly and perhaps not filing your taxes at all. They ignore completely the ongoing environment of attacks on the judiciary, which their comments obviously inflame. Then, of course, they are targeting a judge that the MAGA DOJ is hell-bent on putting out of business so that he can’t investigate their contempt.
That brings me to the final tell, which is that this impeachment bluster is really about propping up the MAGA DOJ campaign against Chief Judge Boasberg.
Here is tell No. 6: Virtually none of what my Republican colleagues accuse Chief Judge Boasberg of is true. Take the letter that Senator CRUZ sent to Speaker JOHNSON last week. According to that letter, Chief Judge Boasberg ‘‘targeted’’ Republican Senators by ‘‘secretly authorizing and sealing’’ Jack Smith’s grand jury subpoenas for those Senators’ phone records. Well, you don’t have to be much of a lawyer to spot the issues here.
First, judges don’t authorize or seal grand jury subpoenas. Prosecutors issue those subpoenas on their own, and they file them under seal because that is the law. Chief Judge Boasberg didn’t target those Senators either. People under investigation for trying to overturn the 2020 election, in a case involving an investigation of that criminal conspiracy, called Senators as a part of that conspiracy. That is how the Senators’ names came up—not because Jack Smith chose them. Jack Smith said it best: He ‘‘did not choose those Members. President Trump did.’’
And it gets better. Chief Judge Boasberg had no way of knowing that it was Senators on the other end of the toll records’ request. A toll records’ request only gives the phone number to the service provider so they can tag that phone number and then provide the requested toll records to the investigators. He would not have known whose records were in that subpoena because the DOJ’s practice at the time was not to disclose that information.
Some Republican Senators went so far as to falsely describe the subpoenas and the toll records’ requests as wiretaps. Chairman GRASSLEY himself has acknowledged this was not true. The requested data were toll records showing limited information like incoming and outgoing calls, not the contents of any calls or messages. People on the Judiciary Committee should know the difference between toll records and wiretaps. It is basic stuff.
Republicans also say that Chief Judge Boasberg shouldn’t have issued nondisclosure orders temporarily preventing the phone companies from telling the Senators about these subpoenas. These orders were justified by a finding that if the existence of the subpoenas got out, it would probably lead to evidence-tampering, witness intimidation, and interference with Smith’s investigations.
What Republican Senators say is that it is outrageous that Chief Judge Boasberg thinks Senators might interfere with an investigation. Well, that was not the problem. That is not what Chief Judge Boasberg said. What he and Jack Smith probably were worried about was not interference by Republican Senators. If you listen closely to Jack Smith’s House testimony, it sounds like what he was really worried about was interference by Trump and his coconspirators. That is what makes sense. And if it became public that the Senators were the subject of that subpoena, the Trump machine would go to work on them.
It is that Trump conspiracy that Smith was investigating, and that conspiracy already had a pattern and practice of intimidating witnesses, tampering with evidence, and interfering in investigations. Add to that the fact that the conspirators only called Republican Senators in the first place to try to pressure them to commit a crime. It is not a shocker that investigators were wary about even more pressure and interference.
By the way, we could settle this question. We don’t have to speculate on what the motivation was behind those nondisclosure orders. We could ask Jack Smith himself, who has actually requested to testify before the Senate Judiciary Committee. I am sure we would learn a lot from that. Ranking Member DURBIN says they have offered to bring in Jack Smith multiple times, and the Republicans on the committee keep saying no. They don’t want to hear the answer; they just want to propagate their supposition.
If you go back to Senator CRUZ’s letter, he accuses Chief Judge Boasberg of violating a 2004 law protecting Senators’ official phone records. Well, it is a little thing, but, you know, facts are important when you are lawyers and are talking about things like impeaching judges. We actually didn’t pass the relevant language in 2004; we passed it in 2020 by amendment after, interestingly, the first Trump administration did the same thing to Members of Congress—took their records and didn’t disclose. Now, that is a small error.
The real point here is that Chief Judge Boasberg had no clue that these were Senators’ records. It is hard to find fault when he doesn’t have the information and when that was the standard practice of the Department of Justice at the time and when the Trump Department of Justice had done the same thing to Members of Congress before.
So to make this whole thing look more nefarious, Republicans rewrote the law last year in that continuing resolution bill to make it look more like Chief Judge Boasberg did something wrong. In that bill, they retroactively made illegal his nondisclosure orders. They were perfectly legal at the time. They were standard operating practice both for the Department of Justice and the court at the time. He had no notice that these were Senators behind the phone numbers. And years later, here come Republican Senators in the CR bill they jammed through, and they throw in a provision that goes all the way back and makes that conduct now illegal.
Why would you do that? Well, now it enables the rhetorical battle—the narrative—to be ‘‘Oh, Judge Boasberg issued these illegal orders’’ and then leave out the bit that they were perfectly legal and standard operating procedure at the time.
But if the purpose of this whole operation is to rev up the attack and threat machine, what I call the flying monkeys of the far right—‘‘Fly, my pretties. Go harass that judge. Go harass that judge’s daughter’’—then calling the orders illegal adds impetus.
By the way, it is not just me saying Republicans are being misleading about what took place here. The Administrative Office of the U.S. Courts debunked these conspiracy theories about Chief Judge Boasberg, long before last week’s hearing, and Jack Smith effectively did the same thing through letters and his sworn testimony to the House.
At last week’s hearing, I entered into the record statements from respected impeachment experts from the American Bar Association and from a group of retired Federal judges, all saying the same thing: This is nonsense, and cut it out before someone gets hurt. We even heard from one of Justice Scalia’s proteges, retired Fourth Circuit Judge Michael Luttig, who described one of the Republican witness’s testimony at a hearing as ‘‘contemptible.’’ The fact that none of this deterred or discouraged my Republican colleagues should tell everyone listening that this is not going to stop.
This is a pressure campaign, and they are desperate to stop the contempt investigation into the MAGA Department of Justice.
You add all this together, and that is exactly what it starts to look like: a MAGA campaign, a coordinated strategy to bring pressure and threats to bear on a Federal judge—not arguments in court—outside pressure and threats, and to do so in an environment in which violent threats are prevalent, perhaps the worst environment of violent threats the Federal judiciary has ever seen and one in which, just to add additional poison into the equation, the MAGA DOJ repeatedly refuses to assure us that proper investigative policies will be followed about threats to Federal judges.
If you have a scheme or a campaign to threaten Federal judges and you won’t look beyond the utterer of the threat and you won’t investigate orchestration, organization, coordination, conspiracy, enterprise—any of that—you are not doing your job. That is basic investigative procedure.
And we are up to, I think, 20 times that we have asked the Marshals Service or the MAGA DOJ: Will you investigate behind the utterer for potential orchestration? It is an easy answer. It is like: Yes, of course we will. So when they won’t answer that question, that is a big warning. What this is all about is that the MAGA DOJ wants to stop the contempt hearing, period.
I hope that neither Chief Judge Boasberg nor any of the other judges who have been targeted by MAGA and its threatening internet flying monkeys are intimidated by this, but that doesn’t make it any less dangerous. And I would sure hope that this body, the U.S. Senate, would be better than to play along with a scheme to amplify pressure and threats against sitting Federal judges—pressure and threats against sitting Federal judges. But here we are with MAGA Republicans leading the charge, obedient to an increasingly dangerous Executive.
I have put this together. These are all the different vectors of pressure against the judge.
First, there is that MAGA Bondi complaint that I talked about that I think is fake, strategic, pretextual, designed to give an excuse to criticize the judge who will be looking into the DOJ’s contempt.
The House has filed Articles of Impeachment to try to put pressure on him and to whip up the MAGA flying monkeys.
The Senate just held the hearing that I spoke about.
Two Trump judges blocked the contempt proceedings with a highly unusual administrative stay. It was only when that stay was lifted that, within days, Republicans sent the letter to the chief judge asking to have Judge Boasberg suspended.
The Deputy Attorney General of the United States declared war on certain Federal judges using descriptors that look exactly like this judge.
And we just found out that, in the appropriations bill, Republicans have tried to defund his office, the office of the chief judge of the DC District Court.
And then, of course, you have got that stunt in the continuing resolution of declaring his perfectly legal conduct years ago retroactively illegal.
That is eight separate vectors of pressure against one judge. That is not the way the Federal judicial system is supposed to operate, and it is particularly wrong in this environment of violent and dangerous threats. To be continued. I yield the floor.
