DOJ Files Frivolous Misconduct Complaint Against Judge For… Doing His Job And Being Right About Government Lawlessness

Legal Issues

from the intimidation-factors dept

We’ve seen some pretty ridiculous attempts by government officials to intimidate judges over the years, but the Department of Justice’s new misconduct complaint against D.C. Chief Judge James Boasberg might take the cake for sheer absurdity. As Steve Vladeck breaks down in exhaustive detail, the DOJ is essentially arguing that a federal judge committed “misconduct” by privately expressing concerns to the Chief Justice that the Trump administration might not comply with court orders.

Spoiler alert: those concerns turned out to be entirely justified.

The complaint centers on comments Boasberg allegedly made at a March Judicial Conference meeting about “concerns that the Administration would disregard rulings of federal courts, leading to a constitutional crisis.” And these concerns were not even Boasberg’s own personal feelings. He was expressing what he was hearing from other judges on the court where he sits.

As Vladeck methodically demonstrates, DOJ’s theory collapses under scrutiny for four separate reasons.

First, the comments weren’t public. They were made at a private meeting of the Judicial Conference, and only became known because someone leaked a confidential memo summarizing the meeting. Vladeck nails why this matters:

Suffice it to say, DOJ never explains how a private comment at a private meeting that was made public only because a confidential memorandum memorializing the meeting was leaked could possibly violate Canon 3(A)(6). The best it can offer is the claim that, because the memorandum has become public, the comments they memorialize were illegitimate. But that’s true of anything a federal judge says in private. On that reading, a federal judge would violate Canon 3(A)(6) simply by discussing a pending case with a clerk or colleague—because that discussion might one day be made public.

Under DOJ’s logic, any private conversation a judge has could retroactively become “misconduct” if someone decides to leak it later. That’s not how judicial ethics work. That’s not how anything works.

Second, as noted above, Boasberg wasn’t pushing his own agenda—he was literally doing his job. As the D.C. Circuit’s district judge representative on the Judicial Conference, part of his role is to communicate his colleagues’ concerns to the Chief Justice. Vladeck notes that these appear to be “radical mischaracterizations of what actually happened,” and that Boasberg was simply “relaying concerns raised by his colleagues to the Chief Justice, almost certainly in response to a specific prompt that he do so.”

Third, and this is the kicker, Boasberg’s concerns were completely justified. Despite DOJ’s claim that “the Trump Administration has complied with every court order,” Vladeck points out that this is “quite obviously not true.”

Indeed, we all talked about how they were directly flouting judicial orders, and Boasberg himself wrote an opinion back in April (after he’d raised these concerns) finding probable cause that DOJ lawyers and government officials acted in “willful disregard” of a temporary restraining order when human trafficked Venezuelans to a Salvadoran gulag.

Let’s be clear about the timeline: a judge expressed valid private concerns that the government might not follow court orders, the government proceeded to violate court orders (including one from this very judge!), and now DOJ is claiming the judge committed misconduct for… being right?

And fourth, even if none of the above were true, there’s still no violation here. Boasberg didn’t say he was predisposed to rule against the government in specific cases. He didn’t prejudge any particular policies. He raised institutional concerns about governmental compliance with court orders—which is exactly the kind of thing members of the Judicial Conference should be discussing.

Vladeck identifies the real audiences for this charade. It’s not actually about disciplining Boasberg—the complaint is “laughably preposterous” and will almost certainly be dismissed. Instead, it’s about sending a message:

The first audience is other district judges—including those perhaps without the reputation and stature (and backbone) of Chief Judge Boasberg. Even frivolous judicial misconduct complaints come at a cost—especially when they’re filed not by private litigants, but by the U.S. Department of Justice. If the Chief Judge of the D.C. district court can come in for such treatment for doing nothing more than conveying his colleagues’ concerns to the Chief Justice at a meeting at which that’s his job, perhaps other judges will think twice the next time they want to publicly reprimand the government or otherwise say anything that could be construed in any way as reflecting comparable concerns about the behavior of the current Department of Justice.

This is straight-up judicial intimidation. File a bogus complaint against one prominent judge to cow the rest into silence. Remember that this is all happening against the backdrop of the Trump admin attacking a bunch of judges for daring to try to uphold the Constitution against a government determined to tear down the Constitution.

The second audience, according to Vladeck, is Trump supporters, who get fed misleading headlines about “biased judges” without the context showing how legally frivolous this complaint actually is. Indeed, Vladeck also calls out that this story “leaked” to MAGA mouthpiece, The Federalist, which clearly was given access to the confidential memo that an attendee had written up summarizing what was said that spurred this complaint… but did not publish it, suggesting that if we saw the full memo, in context, it would be clear how it was being misrepresented here:

Indeed, the fact that The Federalist appears to have obtained that confidential memo but has not published it seems to strongly suggest, among other things, that the memo is not only entirely benign, but that it may provide even further context for Boasberg’s remarks.

Also notable: The Federalist entirely avoided giving the (kinda important!) context that Boasberg was sharing the views he heard from other judges, rather than just expressing his own opinion.

Perhaps most galling is Attorney General Bondi’s tweet claiming Boasberg’s comments “have undermined the integrity of the judiciary, and we will not stand for that.”

The lack of self-awareness here quite something. What’s actually undermining judicial integrity is the Department of Justice filing baseless misconduct complaints against judges who dare to hold the government accountable when it violates court orders.

As Vladeck puts it:

In fact, the only thing undermining the integrity of the judiciary here is the Department of Justice filing a patently baseless and profoundly misleading misconduct complaint against a federal judge who did nothing more than diligently discharge his duties.

Federal judges aren’t supposed to be government cheerleaders. Part of their job is identifying systemic problems with how the legal system is functioning—including when the government isn’t complying with their orders. Encouraging judges to stay silent about such issues doesn’t strengthen judicial integrity; it eviscerates it.

The separation of powers isn’t supposed to be a one-way street where judges quietly rubber-stamp whatever the government wants to do. It’s supposed to involve actual checks and balances, which sometimes means judges pointing out when the other branches are acting lawlessly.

You know, that whole constitutional framework thing we’re supposed to have.

This complaint will almost certainly fail. But the damage is already done. Other judges are watching, and some might think twice before calling out government misbehavior in the future.

That’s not how a functioning democracy is supposed to work. But then again, intimidating judges into silence probably isn’t the behavior of an administration that’s particularly committed to democratic norms in the first place.

Filed Under: donald trump, intimidation, james boasberg, john roberts, judicial conference, judicial ethics, pam bondi