Ed. note: Please welcome Vivia Chen back to the pages of Above the Law. Subscribe to her Substack, “The Ex-Careerist,” here.
ARE WE AT A POINT where it’s just no big deal that the president of the United States can use the government to go after a member of the judiciary he personally dislikes?
Yup, we’re there. But we shouldn’t be.
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Just a few days ago, the Justice Department filed a misconduct complaint against U.S. District Court Chief Judge James Boasberg. The reason, according to Attorney General Pam Bondi’s announcement on X, is that he made “improper public comments about President Trump and his Administration” at a judicial conference in March that “undermined the integrity of the judiciary, and we will not stand for that.”
That’s right – the DOJ “won’t stand” for bashing the judiciary! That’s a mighty bodacious statement, considering how Trump has personally gone after judges.
The complaint itself is riddled with errors, starting with the fact that the judge spoke at a closed session, not a public forum, as the DOJ claims. And, according to Georgetown Law Center professor Steve Vladeck (who goes into the weeds), Boasberg was conveying concerns by colleagues at the conference, not stating his personal views.
Oh, details, details.
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Facts notwithstanding, the DOJ accuses Boasberg of violating judicial ethics code, alleging that the judge “attempted to improperly influence Chief Justice Roberts” and other federal judges by expressing “his belief that the Trump Administration would ‘disregard rulings of federal courts’ and trigger ‘a constitutional crisis.’”
The complaint then goes on to say that “Boasberg had no basis” for that view because “the Trump Administration has always complied with all court orders” – a point that the DOJ makes several times.
That’s ha-ha funny, considering that the administration deported over 200 Venezuelan migrants to El Salvador in clear defiance of Boasberg’s order. And let’s not forget how former top DOJ official Emil Bove – now a freshly installed federal judge – allegedly said “fuck you” to judicial orders. (Bove denied that he said anything of that sort, despite incriminating text messages.)
But the real hoot was the sly suggestion that Justice John Roberts needs to be protected from conniving baddies like Boasberg. “Because the Chief Justice would review Judge Boasberg’s decisions,” warns the DOJ, “his remark was especially problematic as he attempted to prejudice the very court that would scrutinize his decisions.”
To buttress that point, the complaint quotes Berkeley Law School Professor John Yoo who asserted on Fox News that Boasberg was “trying to entrap the Chief Justice of the United States and get him on the record and join him to almost approve what he’s doing to spark this fight with President Trump.” (History buffs will recall that Yoo was one of the leading architects behind the infamous “torture memos” during George W. Bush’s administration.)
It all seems a bit insulting to Roberts, as if he can’t be trusted to stand his own ground. Is the DOJ implying that the chief justice is a dolt who’s easily hoodwinked? And that Boasberg is some sort of judicial Svengali dispatched from the deep state? Though Trump once called him a “Radical Left Lunatic Judge” on social media, Boasberg has a reputation for being a moderate who’s friendly with both the left and the right. In fact, Boasberg and Justice Brett Kavanaugh were roomies at Yale Law School and reportedly became close friends.
I’m no expert but the charges in the DOJ complaint seem ridiculously lame. Even assuming that Boasberg shouted from the rooftops that this administration might disregard court rulings and foment a constitutional crisis, aren’t those legitimate topics for discussion? I’d argue that they’re the most pressing issues facing the judiciary today.
Yet, the DOJ wants the judge disciplined for having the gall to say those things out loud. Among its demands, the DOJ asks that Boasberg be removed from a critical immigration case (J.G.G. v. Trump), publicly reprimanded, and possibly impeached.
The complaint is hogwash, say legal scholars. “This is the sort of laughable thing that should go straight into the trash,” writes Joyce Vance on Substack. “Even if it’s referred for investigation, because it came from the Justice Department and the court feels some need to show it took it seriously, it shouldn’t go anywhere.” That view was shared by Thomas Lee, a professor at Fordham Law School, who tells me: “it’s hard to see what he is alleged to have said violates any judicial ethics rules.” And Radhika Rao, a professor at the UC San Francisco Law School, calls the charges “ridiculous – nowhere near grounds for impeachment!”
What’s ironic and shameless is that the complaint keeps insisting that “Boasberg’s actions have harmed the integrity and public confidence in the integrity of the judiciary” when it’s politically charged stunts like this that sow mistrust in our justice system.
But maybe that’s the long game: to erode faith in our judicial branch – which, as it now stands, is the only check against Trump’s authoritarianism.
The more immediate goal is obvious: to silence judges through thuggery. And what better way to achieve that objective than to make an example of an establishment judge like Boasberg. The message is clear: if you make a critical remark or rule against us, we’ll come after you using the full force of the government.
Which brings us back to Roberts. The judiciary needs to show it won’t be cowed and speak up. And the one who should be speaking the loudest is Roberts, both because he was portrayed in the complaint as the object of Boasberg’s alleged manipulation, and because, well, he’s the chief justice. Whether he likes it or not, he’s in the hot seat.
No doubt, he’s been feeling that heat for a while. In March, Roberts made an oblique (and rare) retort to Trump’s attack on judges. “Impeachment is not how you register disagreement with decisions.”
That was a promising start. Since then, though, he’s danced around the subject, dispensing the usual crumpets about judicial independence.
Roberts has long styled himself as a guardian of the Court’s legitimacy, the steady hand above the political fray. But as Trump escalates his assault on the judiciary, that image is wearing awfully thin.
Now, Roberts has been handed another opportunity – this time, wrapped as a farcical complaint – to defend the judiciary that he holds so dear.
So what’s it going to be, Chief Justice?
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Vivia Chen writes “The Ex-Careerist” column on Substack where she unleashes her unvarnished views about the intersection of work, life, and politics. A former lawyer, she was an opinion columnist at Bloomberg Law and The American Lawyer. Subscribe to her Substack by clicking here:
