Order Michael Finch’s new book, A Time to Stand: HERE. Prof. Jason Hill calls it “an aesthetic and political tour de force.”
Chief District Judge James Boasberg of the United States District Court for the District of Columbia, an Obama appointee, is an out-of-control lower federal court judge who has shown contempt for the Constitution’s fundamental principle of the separation of powers. This activist judge has exceeded his judicial authority by intruding on the powers of the elected executive and legislative branches.
Judge Boasberg is continuing his vendetta against the Trump administration over the execution of President Trump’s deportation order sending 238 members of terrorist-designated gangs to El Salvador last March. The Trump administration, using the president’s sweeping powers under the Alien Enemies Act, had charged that these illegal immigrants met the Alien Enemies Act’s criteria for immediate deportation.
Planes carrying the terrorist-designated illegal immigrants to El Salvador were already in the air when Judge Boasberg issued an emergency oral order to turn the planes around, including those flying over international waters. He also ordered that the planes still on the ground not to take off. The planes already in the air kept going to their destination in El Salvador. Judge Boasberg then issued a subsequent order, which opened an investigation of the Trump administration’s actions and concluded that “probable cause exists to find the Government in criminal contempt” for not obeying his previous order.
Last August, a three-judge panel of the D.C. Circuit Court of Appeals put the kibosh on Judge Boasberg’s order that had found probable cause for the government’s criminal contempt. On November 14th, the full Court of Appeals issued a ruling that did not reinstate Judge Boasberg’s order with this finding. However, it handed Judge Boasberg a mulligan by allowing him to proceed with a factual inquiry into the matter.
The activist, anti-Trump judge jumped at a second chance to go after the Trump administration. He resumed his suspended investigation of whether senior administration officials had willfully violated his oral order last March to turn around the planes transporting the deported illegal immigrants to El Salvador.
Many of these illegal immigrants were ultimately repatriated to their home countries. Kilmar Abrego Garcia, the so-called “Maryland Dad” who was allegedly deported to El Salvador by mistake, returned to the United States for further hearings. But Judge Boasberg is pressing on.
“Justice requires me to move promptly on this,” Judge Boasberg remarked at a hearing on November 19th. “It seems that a factual inquiry is in order, and the best way to proceed would appear to be bringing in witnesses and having them testify under oath.” He said he intends to receive testimony from a former Department of Justice attorney Erez Reuveni, who was fired last April and has since accused the Trump administration of allegedly violating Judge Boasberg’s court order regarding the deportation flights. He also wants to hear from Deputy Assistant Attorney General Drew Ensign, who represented the Department of Justice last March and claimed to have no knowledge of any planned deportation flights. Judge Boasberg has not ruled out the possibility of criminal referrals.
Motivated by his case of Trump Derangement Syndrome, Judge Boasberg is wasting judicial resources in his sham investigation. It is dubious that Judge Boasberg’s oral instruction last March for the planes on their way to El Salvador to turn around would be considered a legally binding judicial order, especially since his superseding written order omitted his oral instruction to return the flights in midair to the U.S. Furthermore, it is highly questionable whether Judge Boasberg, a district court judge in the District of Columbia, had proper jurisdiction to issue his order in the first place. Last April, the Supreme Court declared that the District of Columbia where Judge Boasberg sits was an inappropriate venue for the case against the Trump administration because the illegal immigrant gang members had been detained in Texas, not D.C. In June, the Supreme Court ruled more generally that federal district courts lack congressional authority to issue nationwide injunctions in most cases.
Most importantly, Judge Boasberg is trampling on the separation of powers by intruding on the executive powers of the President of the United States and Commander-in-Chief under Article II of the Constitution. Judge Boasberg has ignored past Supreme Court decisions making clear that, in matters involving national security, the courts are required to pay great deference to the president’s decisions. This includes a 2018 decision upholding President Trump’s first term Proclamation suspending the entry of illegal immigrants from certain countries into the United States. It is the responsibility of the president, certainly not of a local federal district court judge, to protect national security by enforcing federal laws against dangerous illegal immigrants.
This same rogue judge had already shown his contempt for the separation of powers in a matter involving former Special Counsel Jack Smith’s investigation of whether President Trump had obstructed the 2020 presidential election. Judge Boasberg approved subpoenas and gag orders related to the operation known as Arctic Frost, which allowed Jack Smith’s team to obtain phone records of selected Republican members of Congress without their knowledge. Judge Boasberg signed nondisclosure orders prohibiting Verizon and AT&T from informing the Republican targets of the subpoenas for their phone records.
When the Arctic Frost scandal came to light, Republican Congressman Brandon Gill of Texas introduced articles of impeachment against Judge Boasberg. Rep. Gill accused Boasberg of “shamelessly weaponizing his power against his political opponents—including Republican members of Congress who are faithfully serving the American people within their jurisdiction.” He added that “No judge should act as an agent of political prosecution,” referring to Judge Boasberg’s part in Arctic Frost as “a dark chapter in judicial abuse.”
The core issue again is the separation of powers. This time Judge Boasberg exceeded his judicial authority by facilitating the Biden administration’s trampling of the constitutional privileges and rights of members of the legislative branch.
Members of Congress and their staff may themselves be served with subpoenas. But Judge Boasberg did not limit himself to signing such subpoenas. He did something far more sinister. Behind the legislators’ backs, he secretly signed off on subpoenas to telephone companies for phone records of the legislators and issued nondisclosure orders prohibiting the telephone companies from informing these legislators that their phone records were being seized.
Judge Boasberg, who is so concerned with protecting the due process rights of dangerous illegal immigrants, denied members of Congress due process. He deprived them of the opportunity, before their phone records were turned over to the Biden Justice Department, to seek protective orders covering communications that fall within the performance of their constitutionally protected legislative duties.
“The weaponization of the judiciary compromises the separation of powers found in the U.S. Constitution,” Rep. Gill’s impeachment resolution states. Judge Boasberg’s willful disregard of the separation of powers in at least the two instances discussed in this article constitutes a gross abuse of judicial power that merits his removal from office.
