The kangaroo-fication of the courts
The administration persecutes judges who follow the law and stuffs courts with ones willing to violate it.
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The Trump administration continues to wage war on the lower courts in ways that would be both unfathomable and impeachable for any other president, with the latest depravities being the DOJ’s retribution campaign against Judge James Boasberg and the installation of the obscenely unqualified Emil Bove to a lifetime seat on the federal bench.
Both President Donald Trump and Attorney General Pam Bondi genuinely believe that lower courts cannot tell the administration what to do, so they were always going to figure out a way to rid themselves of Judge Boasberg. What they settled on is formally accusing him of misconduct because Boasberg, while at the Judicial Conference of the United States in March, spoke of his concern that the administration might ignore court orders and trigger a constitutional crisis.
Despite the fact that this is precisely what the administration has done, Bondi thinks Boasberg should be censured, hilariously insisting that “the Trump administration has complied with every court order — including the unlawful orders that appellate courts have subsequently stayed or reversed.”
Come on.
Part of what is so ridiculous about Bondi’s complaint is that the basis for it is a single story in The Federalist, the hard-right publication that had a “black crime” tag for years, pushed Trump’s 2020 election fraud lies, and spread covid-19 misinformation, suggesting people should have coronavirus parties so they could get the virus, magically get better, go back to work, and save the economy. In mid-July, The Federalist published a breathless piece about a memo showing judges are biased against the administration. However, The Federalist hasn’t actually published that memo, nor did Bondi provide it when she dressed up these anonymous mumblings into a formal complaint.
According to Bondi, Boasberg’s objectively mild remarks, conveyed only to his fellow judges, violated multiple judicial canons. Boasberg discussing the possibility that Trump might do exactly what he did somehow harmed the integrity and independence of the judiciary, undermined public confidence in it, and also violated the canon that judges “should not make public comment on the merits of a matter pending or impending in any court.”
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This ignores the fact that Boasberg did not actually make any remarks in public. As Steve Vladeck noted over at One First, Bondi’s assertion that Boasberg made “improper public comments” is nonsense because meetings of the Judicial Conference are extremely not public. But somehow, because The Federalist allegedly obtained Boasberg’s private remarks and broadcast them publicly, that means Boasberg made improper public comments.
Following Bondi’s accusations here to their logical endpoint, any judge who discusses concerns about a case in private with their judicial colleagues is committing misconduct. That’s nonsense, and you know it, and Pam Bondi knows it, and Donald Trump knows it. If The Federalist had not served up these remarks for Bondi, the administration would have figured out some other way to go after Boasberg.
So, what does Bondi want to happen to Judge Boasberg for privately remarking on a matter of judicial concern to his colleagues? Just a special investigative committee, a public reprimand, and a referral for impeachment proceedings if the committee finds Boasberg’s so-called misconduct to be willful. Oh, and also, that all cases related to JGG v. Trump be reassigned to a different judge “to prevent further erosion of public confidence while the investigation proceeds.”
While the administration no doubt wants Boasberg to be disciplined, the real goal here is reassignment. Judge Boasberg is, of course, the judge who ordered the administration to turn around the planes carrying hundreds of Venezuelan deportees bound for El Salvador’s Terrorism Confinement Center. The administration ignored Boasberg’s order and then cast about for a justification. How about that verbal court orders aren’t really orders? No? Ok, what about the fact that the judge had no authority once the planes were in international waters? Yeah, not really. Well, there’s always just declaring that the president has complete authority over immigration, so courts can’t rule on it at all, which is pretty much where the administration landed.
In April, Boasberg ruled that there was probable cause to hold the administration in criminal contempt for defying his orders, but when the administration ran to the DC Circuit Court of Appeals to whine about it, a three-judge panel stayed the order. That was always going to be the case, as the panel included two very loyal Trump appointees, Gregory G. Katsas and Neomi Rao. The appellate court has now sat on Boasberg’s order for three months, which is a sweet deal for the administration, particularly as evidence has emerged that Trump’s former criminal attorney, Emil Bove, did indeed tell DOJ attorneys to ignore court orders.
Corrupting the courts from within
It’s illuminating — and extremely depressing — to contrast the administration’s treatment of Judge Boasberg and Bove.
Bove, who’s serving as principle associate deputy attorney general, was just confirmed by 50 Republicans in the Senate to a lifetime seat on the Third Circuit Court of Appeals. That happened even though not one, not two, but three whistleblowers came forward to raise grave concerns about his professional conduct.
The first whistleblower, Erez Reuveni, alleged that Bove told employees they may need to tell the courts “fuck you” and ignore court orders because deportation planes needed to take off no matter what. A second whistleblower confirmed Reuveni’s allegations, having filed documents with the DOJ’s inspector general back in May, before Reuveni came forward. The third whistleblower alleged that Bove lied to the Senate about the DOJ’s dismissal of corruption charges against New York City Mayor Eric Adams. While Bove told the Senate he would not treat a prosecutor differently if they opposed his quid pro quo dismissal, the whistleblower reported that Bove proposed promotions for lawyers who signed off on the dismissal and consequences for those who refused.
Where Bondi’s allegations that Boasberg violated judicial canons are patent nonsense, the Alliance for Justice points out that Bove is undoubtedly going to violate some. Judges are not supposed to engage in “harassing, abusive, prejudiced or biased” behavior nor “be swayed by partisan interests.” Threatening “consequences” for employees who disagree with you seems pretty abusive. Judges are also supposed to “respect and comply with the law,” but this is a dude who literally told his employees to ignore court orders so Trump could do mass deportations in the dead of night.
While the administration happily rewarded Bove with a judgeship despite — or, more likely, because of — his willingness to give court orders the finger, Boasberg’s attempts to preserve the rule of law made him a target.
If the administration’s new campaign doesn’t succeed in wrenching immigration cases away from Boasberg, Bondi will no doubt try other methods. Judges like Boasberg represent an existential threat to the administration’s brutal immigration crackdown. That said, Bondi also knows it is unnecessary for the administration to get Boasberg booted from immigration cases. The Trump appointees on the DC Circuit stayed another Boasberg order in JGG v. Trump that required the administration to “facilitate” due process for the Venezuelan men it deported in defiance of a court order. That stay has been lingering since June.
Even better than the DC Circuit, though, is the Supreme Court’s supreme willingness to kneecap the lower courts to make sure Trump gets his way. The Court has already jumped in to smack Boasberg down, vacating his temporary restraining orders prohibiting deportations and instead requiring each potential deportee to file individual habeas petitions. Bondi’s complaint leans on this reversal as evidence of Boasberg's misconduct. Given that the American judicial system has multiple levels of courts and judges are reversed all the time, this is absurd for many reasons.
In her complaint, Bondi frames the Supreme Court’s vacation of Boasberg’s TROs as “confirming that Judge Boasberg lacked authority to issue it and underscoring that the rush to issue it sacrificed basic legal predicates.” Would you like to know where that appears in the Supreme Court’s decision? Same, fam. But Bondi doesn’t bother to cite to a specific page in the majority opinion, making the reader go spelunking through the decision to figure out if it says what Bondi says it does.
It likely surprises no one that the Supreme Court decision makes no mention of Boasberg exceeding his authority, nor rapping his knuckles for a rush to issue an order, nor an assertion that Boasberg “sacrificed basic legal predicates,” whatever that means. The whole of the majority opinion is about the requirement for individual habeas filings. It’s weird to completely mischaracterize a Supreme Court decision when demanding a judge be sanctioned for misconduct, but that’s just how the administration rolls.
Given that the Supreme Court has proved remarkably solicitous about granting the administration’s requests for emergency relief, but not usually bothering to explain why, going after Boasberg is just a flex on the part of the DOJ. No lower court judge represents any real threat to the administration when you have a Supreme Court that is at war with the lower courts, a one-sided war if ever there was one. In a seven-week span from May 1 to June 23, lower courts ruled against the administration 94.3 percent of the time, but the Supreme Court sided with Trump 93.7 percent of the time. This, not Judge Boasberg’s private remarks, is really what has “undermined the integrity and impartiality of the judiciary.”
The administration knows full well it will get its way on immigration and everything else. But going after Boasberg sends a message that lower court judges rule against the administration at their peril and that doing so could result in discipline or impeachment. It remains to be seen what will happen with this complaint, but the mere fact of its existence means that everything has gone horribly awry.
That’s it for today
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"The administration knows full well it will get its way on immigration and everything else.". A very scary thought. Right now, I would think that the administration is well on its way to complete victory. All the resistance and rough spots are being sanded down. The Democrat party has been trounced and are stumbling around in confusion. The Congress is completely tamed, even voluntarily relinquishing many of its powers to the executive. The media have folded, as are the universities, the NGOs, and the big law firms the administration has put its own house.in order, firing inspector generals, eliminating dissenters and packing the agencies with loyalists. Only the lower court judiciary remains as protectors of the rule of law. Trump wants to rule by fiat. To meet his ambition he will do everything he can to break the recalcitrant judiciary, eliminating the ones that displease him and installing loyalists, however unqualified, to any position that comes open. After all, if the Senate can confirm an Emil Bove, they will confirm anybody Trump nominates
Where’s Roberts? Sitting in his stately ivory tower where it’s always balmy weather.