Last week, in a post on social media, Attorney General Pam Bondi announced that the Justice Department filed a misconduct complaint against James Boasberg, the chief judge of the Federal District Court in Washington, claiming he made “improper public comments about President Trump” and his administration.
The essence of the complaint is that Judge Boasberg, in talking with John Roberts, the chief justice of the Supreme Court, and other federal judges, said things “that have undermined the integrity and impartiality of the judiciary,” and that as a result he should be subjected to an investigation, temporary reassignment of some of his cases and, potentially, public reprimand and “consideration of impeachment-related recommendations.”
The complaint misrepresents both what Judge Boasberg said and the nature of the setting in which he spoke, and it misapplies the law and the rules governing judicial conduct. Worse, it is a dangerous escalation in a mounting list of assaults by the current administration on the legitimacy of the federal courts.
It is, in a word, preposterous.
According to the complaint, the comments took place on March 11 at “a session” of the Judicial Conference of the United States, the national policymaking body of the federal courts. In that session, the Justice Department claims, Judge Boasberg, “straying from the traditional topics” of the conference, expressed “his belief that the Trump administration would ‘disregard rulings of federal courts’ and trigger ‘a constitutional crisis.’” The Justice Department claims that Judge Boasberg tried to “push a wholly unsolicited discussion” to “persuade the chief justice and other federal judges of his preconceived belief that the Trump administration would violate court orders.”
Apparently, the complaint is based on a leaked memorandum, reportedly written by a member of the Judicial Conference. Even if the claims against Judge Boasberg had merit — they don’t — the attorney general’s announcement on social media is a violation of the law, which requires confidentiality. The entire exercise is an insult to the federal judiciary and cannot stand.
First, Judge Boasberg’s comments weren’t public. This matters: The code of conduct for federal judges states that “a judge should not make public comment on the merits of a matter pending or impending in any court.” But as The Federalist, a pro-Trump website, reported, the meeting was at a private “working breakfast.” From our years of experience — one of us as a federal judge and the other as a constitutional scholar — we know that typically, Chief Justice Roberts invites judges to breakfast on each of the days that the Judicial Conference meets. There is no set agenda; there are no “traditional topics.”.
Additionally, calling Judge Boasberg’s comments “unsolicited” makes no sense. In these meetings, Chief Justice Roberts often asks a general question of the judges about what they see going on in their courts. And the judges share a wide range of concerns. The Federalist reported that Judge Boasberg’s contribution to the discussion was to relay concerns raised by his colleagues on the federal bench in Washington (whom he was representing at the Judicial Conference) about what would happen if the Trump administration disregarded court orders in unspecified future cases — not, as the complaint implies, his personal concerns.
If Judge Boasberg was accurately relaying his colleagues’ concerns (the complaint was tellingly silent on this point), then he was providing appropriate feedback to the chief justice, not opining on a specific, pending matter. Indeed, J.G.G. v. Trump, the high-profile case that Judge Boasberg was later assigned to, involving the removal of migrants under the Alien Enemies Act to El Salvador’s CECOT prison — the only one of his cases the complaint mentions — hadn’t even been filed yet. (Yes, he’s also the judge assigned to cases including Project on Government Oversight, Inc. v. Trump and American Oversight v. Hegseth, the latter also being filed after the breakfast meeting took place.)
The notion that it is somehow improper for judges on lower federal courts to raise a general concern about the prospect of their orders being ignored simply beggars belief. And it turns out that those concerns were well taken. In July, The Washington Post reported that Mr. Trump and his appointees “have been accused of flouting courts in a third of the more than 160 lawsuits against the administration in which a judge has issued a substantive ruling.” Last week, The Times reported on the Senate confirmation of Emil Bove, a Trump loyalist, as a federal appeals court judge, noting that, “During his brief tenure as a Justice Department official, Bove was accused by a whistle-blower of having suggested that department lawyers might defy court orders.” In a Senate subcommittee hearing, Ms. Bondi seemed to suggest that the administration will follow court orders — but only those of the Supreme Court.
Finally, even if Judge Boasberg’s comments had been public, even if the comments reflected his views, rather than a summary of his colleagues’ concerns, and even if those concerns weren’t well taken, the Justice Department’s complaint doesn’t come close to making the case that he violated the code of conduct for federal judges. As the complaint notes, Judge Boasberg did later grant a temporary restraining order in J.G.G. v. Trump, but that was a ruling on the specific facts and applicable law in that case — the job of a judge. It doesn’t mean he was predisposed to rule against the administration. Nothing in the complaint indicates that at the breakfast the judge mentioned any of the specific government policies being challenged.
The federal judicial code of conduct says that judges may speak and write “on both law-related and nonlegal subjects” as long as doing so doesn’t “detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties” or “reflect adversely on the judge’s impartiality.” In this instance, Judge Boasberg was performing his official duties in a dignified, private and impartial manner. Claiming otherwise comes close to implying that the legality of a judge’s conduct is whatever the attorney general says it is.
The real issue here is why Ms. Bondi decided to make such a spectacle out of an obviously frivolous complaint against a highly respected Federal District Court judge. It seems clear that her first intended audience is other district judges; for them, even frivolous judicial misconduct complaints come at a personal and professional cost, especially when they are filed not by private litigants but by the Justice Department. If the chief judge of the Federal District Court in Washington can come in for such treatment, perhaps other judges will think twice before raising legitimate concerns.
The federal judiciary, like Congress, is a coequal branch of government — part of its job is to serve as a check on the executive branch. This is so with respect to federal judges across the country, no matter who the appointing president was. Rather than reflecting the lawlessness of the courts, if the complaint against Judge Boasberg is, as it appears, an effort by the Justice Department to baselessly muzzle him, that would be lawlessness coming from the executive branch.
The second audience is, without doubt, Mr. Trump and his supporters. By all appearances, the complaint furthers the idea that presidents can do what they want without a care for federal judicial rulings. That’s not how our legal system and Constitution work.
Ms. Bondi wrote that Judge Boasberg’s comments “have undermined the integrity of the judiciary, and we will not stand for that.” No. The way to look at this is the inverse: Her Justice Department is attempting to undermine the integrity of the judiciary and the rule of law.
Nancy Gertner is a retired Federal District Court judge. Stephen I. Vladeck is a professor at Georgetown University Law Center.
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