Professor Vladeck: ‘If judges and justices could be impeached for no reason other than public disagreement with how they have ruled in specific cases, then the judicial independence enshrined in Article III of the Constitution wouldn’t mean very much’
Retired federal Judge Luttig denounces ‘contemptible’ call for impeachment of Judge Boasberg
Washington, D.C. – U.S. Senator Sheldon Whitehouse, Ranking Member of the Senate Judiciary Subcommittee on the Federal Courts, slammed yesterday’s hearing on the impeachment of judges who don’t rule the way the Trump Administration and MAGA want them to. Subcommittee Chairman Ted Cruz (R-TX) called the hearing, which targeted Chief Judge James Boasberg, a distinguished federal district court judge in the District of Columbia who has found the Trump administration in violation of federal law in a number of high-profile cases.
“Impeachment isn’t a remedy for judges getting decisions wrong; appeal is the remedy for that, as the Chief Justice has stated,” Whitehouse said in an opening statement. “Impeachment is a remedy for actual misconduct—as was the case with the last judge who was impeached.”
Whitehouse also raised outstanding questions related to judicial conduct, including whether Justice Clarence Thomas has paid all legally required taxes and why there has not been an adequate investigation into the orchestration of threats against judges across the country who have ruled against the Trump administration.
“All of this looks very much like a MAGA coordinated strategy to bring pressure and threats to bear on a federal judge, in an environment in which violent threats are prevalent, and in which MAGA DOJ repeatedly refuses to assure us that proper investigative practices are being followed with regard to such threats,”concluded Whitehouse. “Presumably the purpose is to scare Judge Boasberg off or block him from examining contempt of court by MAGA’s Department of Justice. There was a time when I’d have hoped a Senate Judiciary subcommittee would not be roped into a scheme to amplify pressure and threats against a sitting federal judge, but here we are, in a hearing that specifically targets Chief Judge Boasberg, and look who wields the gavel.”
Professor Stephen Vladeck of Georgetown University Law Center was the hearing’s minority witness. Vladeck testified, “It’s not just that we haven’t impeached judges because of disagreement with their rulings; it’s that weshouldn’t. If judges and justices could be impeached for no reason other than public disagreement with how they have ruled in specific cases, then the judicial independence enshrined in Article III of the Constitution wouldn’t mean very much.”
Retired Judge J. Michael Luttig of the Fourth Circuit, a protégé of the late Justice Antonin Scalia and a mentor of Senator Cruz’s, provided a written statement. Judge Luttig countered testimony from Republican witness Professor Robert Luther of the Antonin Scalia Law School, whocalled for Chief Judge Boasberg’s impeachment.
“Professor Luther’s statement is contemptible. [. . .] Professor Luther’s testimony misleads this Committee to believe that its obligation under the Constitution is other than what it is,” wrote Judge Luttig. “Thirty-one years ago, I am confident that Senator Cruz would have said the very same thing that I just said to this Senate Judiciary Committee, as I am confident would have every other Member of this Honorable Committee both then and now. Professor Luther’s statement should be dismissed as singularly ‘unhelpful’ to this Committee in determining its sacred duty under the Constitution of the United States in this hearing concerning one of this Senate’s highest obligations and duties to the Constitution.”
Whitehouse’s full opening statement is below. Judge Luttig’s testimony is available here.
Here are a few things we know about calls for impeachment of judges.
1. It’s rare for a senator to call for a judge’s impeachment, because the senator would be a juror. But here we are.
2. Impeachment isn’t a remedy for judges getting decisions wrong; appeal is the remedy for that, as the Chief Justice has stated. Impeachment is a remedy for actual misconduct—as was the case with the last judge who was impeached.
So, when I first heard of this hearing about impeaching judges for misconduct, I thought maybe we’d get answers about Clarence Thomas paying his taxes.
We know Justice Thomas failed to report on his financial disclosures more than a quarter million dollars in income from a forgiven loan. We know that people are regularly prosecuted for tax violations and false statements. That conduct would break criminal statutes. There’s an obvious question, if income wasn’t reported, wasn’t declared on a judicial disclosure report, whether it was reported or declared to tax authorities.
I have asked this question, and it has been a matter of public concern, yet Thomas has offered no statement confirming any tax payment. Whether, when, and by whom his taxes on that income were paid, are all unanswered questions.
A simple answer was possible: yes, I paid my taxes on that income on this date with these funds. No such statement came.
Or this hearing could have been about the campaign of threats under the shadow of which the federal judiciary is now operating, a threat posture facing the federal bench, unlike any time in memory. The threat campaign includes threats of impeachment, that egg on other more nefarious and dangerous threats.
There is significant evidence of orchestration in the campaign of threats against federal judges, yet the Marshals Service and our MAGA DOJ have repeatedly refused to confirm they’d investigate behind the utterer of a threat, for orchestration or conspiracy or enterprise, or other forms of joint liability.
Again, a very simple answer was possible: yes, we investigate for orchestration of threats. No such statement came.
So instead of being a hearing about the campaign of threats against judges, is this an effort just to egg on even more threats against judges? It is telling that it targets Chief Judge Boasberg, the chief federal judge in the District of Columbia.
Five years ago this week, President Trump unleashed a violent mob on the U.S. Capitol. Chief Judge Boasberg offended MAGA by sentencing January 6 rioters. MAGA world has decided that no crimes were committed that day. That’s new. At the time, Senator Cruz described those crimes as “a violent terrorist attack on the Capitol.” Senator Cornyn said those who “planned and participated in the violence that day should be prosecuted to the fullest extent of the law.” Senator Hawley said “those who attacked police and broke the law must be prosecuted.”
Chief Judge Boasberg also authorized temporary non-disclosure of requests for telephone toll records as part of the federal investigation into that day’s crimes. That is now regularly — and falsely — described as “wiretaps.” People on this Committee should know the difference between toll records and wiretaps.
MAGA faults Chief Judge Boasberg because it was Republican Senators whose records came up. But that’s investigation 101: People under investigation had called senators. That’s why senators’ toll records came up in the investigation. As Jack Smith testified, he “did not choose those Members, President Trump did.”
Moreover, Chief Judge Boasberg would not have known whose records these were. As the Administrative Office of the Courts has explained, at the time, when prosecutors applied for these orders, they did not include identifying indications like names of account holders, nor did they disclose the government’s underlying subpoena. That was standard operational practice. So the “applications would not reveal whether a particular phone number belonged to a member of Congress.” Jack Smith’s House testimony confirmed that he did not provide that information to Chief Judge Boasberg, per DOJ’s policy at the time.
The Administrative Office of the Courts also made clear that judges do not approve grand jury subpoenas, and Smith’s testimony, of course, confirmed that too.
So if Chief Judge Boasberg didn’t know whose toll records were the subject of the non-disclosure orders, and he didn’t approve the subpoenas, why do these attacks persist? Well it appears the grievances, the campaign, if you will, against Chief Judge Boasberg seems mostly to involve the MAGA DOJ.
First: When FBI Director Patel lied to us that he couldn’t describe his own grand jury testimony, he blamed it on a supposed court order from the “D.C. District Chief Judge,” who is Chief Judge Boasberg. Boasberg exposed Patel’s lie in a collateral civil proceeding, saying Patel could “divulge the contents” of his own testimony and “nothing was preventing him from doing so before the Committee.” So when Patel came back, he had to lie again to us, that his grand jury testimony, given under immunity, after he had asserted Fifth Amendment rights against self-incrimination, had already been publicly released. That wasn’t true either, of course.
Second: When DOJ wanted to illegally jet people in the dark out of the country to a Salvadoran prison, Chief Judge Boasberg was on duty and 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’d need to be ready to tell judges “f— you” — using the full four letter word — Boasberg obviously a very likely “f— you” target.
In that matter, considerable evidence of contempt of court by DOJ caused Boasberg to schedule contempt proceedings. We don’t know all the facts, but we do know that two Trump judges on the D.C. Circuit stepped in and blocked that contempt hearing, with a very unusual four-month-long administrative stay, during which Bove, a subject of that DOJ contempt proceeding, was hustled through this Committee onto the Third Circuit without any factual record from the contempt proceeding for the Committee to see. Bove’s Judiciary hearing was so important to MAGA that Bondi and Blanche came over here to give the eyeball to colleagues present.
After the full D.C. Circuit cleared Chief Judge Boasberg to resume his contempt proceedings examining Bove and DOJ, a handful of Republican senators within days — he was cleared Friday; the letter fell Monday — sent a letter to the D.C. Circuit chief judge seeking Chief Judge Boasberg’s suspension pending impeachment proceedings against him by House Republicans. Anything to stop the contempt proceeding into Trump’s MAGA DOJ. And now, we have the Chairman’s letter.
Adding to this, the MAGA AG had filed a misconduct complaint against Chief Judge Boasberg, based on a private comment he allegedly made within the Judicial Conference. The Judicial Conference is an administrative not adjudicative body, chaired by the Chief Justice, whose proceedings are considered private. Here was the alleged offending comment: Chief Judge Boasberg “raised his colleagues’ concerns that the Administration would disregard rulings of federal courts leading to a constitutional crisis.” The so-called ethics complaint looks like yet another strategic tactic to block that contempt proceeding. Wait and see.
Then in the recent CR, Republican Senators retroactively made illegal Chief Judge Boasberg’s lawful authorization of those NDOs, adding to the rhetorical heat.
It gets worse. In November, Trump’s personal lawyer, now MAGA’s Deputy Attorney General, went before the Federalist Society to urge “war” against certain federal judges, ones who are “repeat players” or “stop an entire operation or an entire administrative policy.” He did not say Judge Boasberg’s name, yet. But this hearing today is not as coy.
All of this looks very much like a MAGA coordinated strategy to bring pressure and threats to bear on a federal judge, in an environment in which violent threats are prevalent, and in which MAGA DOJ repeatedly refuses to assure us that proper investigative practices are being followed with regard to such threats. Presumably the purpose is to scare Judge Boasberg off or block him from examining contempt of court by MAGA’s Department of Justice. There was a time when I’d have hoped a Senate Judiciary subcommittee would not be roped into a scheme to amplify pressure and threats against a sitting federal judge, but here we are, in a hearing that specifically targets Chief Judge Boasberg, and look who wields the gavel.
