170. DOJ's (Ridiculous) Misconduct Complaint Against Chief Judge Boasberg

DOJ's complaint that Chief Judge Boasberg engaged in "misconduct" would be laughably stupid if it didn't reflect such a transparently obvious and dangerous attempt to delegitimize the federal courts.

Jul 29, 2025

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I wanted to put out a quick issue today to cover the misconduct complaint that the Department of Justice has filed against D.C. district court Chief Judge Jeb Boasberg—based on comments that Boasberg apparently made at a March meeting of the Judicial Conference of the United States. I’ll say more about the background below, but the gravamen of the complaint is that Boasberg’s comments reflect bias against the Trump administration and should subject him to censure by the Judicial Council of the D.C. Circuit.

The complaint is almost laughably preposterous. First, Boasberg’s comments weren’t public. Second, his comments were apparently nothing more than relaying (to the Chief Justice) concerns that had been raised by his colleagues on the federal bench in D.C. Third, it turns out that those concerns were … well-taken. And fourth, even if none of the first three things were true (and they all are), the comments don’t come anywhere close to crossing the line of what judges can and can’t say in public with respect to systemic issues facing the federal courts. Whether D.C. Circuit Chief Judge Sri Srinivasan gives the complaint the back of his hand or, because it’s coming from DOJ, takes it at least somewhat seriously (e.g., by referring it to the D.C. Circuit Judicial Council for full consideration), there’s just no question that at the end of the day, this complaint is going to be dismissed.

But the bigger issue is that the Department of Justice (and the Attorney General, specifically) filed this nonsense (and then tweeted about it) in the first place. I very much doubt that Judge Boasberg is the kind of jurist who will be at all intimidated or in any way cowed by such a maneuver. But there are two other audiences for this charade: The first is other federal judges, who may be less willing to speak out or to raise concerns about the Justice Department’s behavior going forward lest they, too, find themselves the subject of a misconduct complaint. And the second is the current administration’s supporters, for whom the complaint can be pointed to as yet further evidence that the lower federal courts are out to get President Trump (since no one will still be paying attention when—not if—it gets rejected). Yet again, the executive branch is actively seeking to discredit the federal judiciary. And far too many people who ought to be speaking out against this nonsense will just quietly tsk at the Department of Justice and shake their head.

I’m not one of them—hence this unscheduled post.

DOJ’s Complaint

Although it includes a bunch of extraneous material, the crux of DOJ’s “complaint” (which is signed only by the Attorney General’s Chief of Staff, Chad Mizelle) is in this paragraph on page 2:1

On March 11, 2025, at one of the [Judicial] Conference’s semiannual meetings,[2] Judge Boasberg disregarded its history, tradition, and purpose to push a wholly unsolicited discussion about “concerns that the Administration would disregard rulings of federal courts, leading to a constitutional crisis.” By singling out a sitting President who was (and remains) a party to dozens of active cases, Judge Boasberg attempted to transform a routine housekeeping agenda into a forum to persuade the Chief Justice and other federal judges of his preconceived belief that the Trump Administration would violate court orders.

There are two critical pieces of context that neither DOJ’s “complaint” nor the sensationalist story in the right-wing outlet, The Federalist, that “broke” this episode have provided: For starters, the Judicial Conference’s entire meeting is … not public. The Conference may sometimes have a press availability at the end of the meeting, but the internal conversations and deliberations have not historically been a matter of public record—a point that’s going to matter in a minute. So when the Attorney General of the United States tweets about “improper public comments,” she is not accurately describing what happened at all. (Nor are the repeated references in the complaint to “public” statements accurate.)

Second, DOJ’s entire complaint is apparently based upon a (non-public) memorandum prepared by one of the attendees (a member of the Judicial Conference)—which itself appears to have been meant to do nothing more than provide a summary of the gathering to the attendees’ judicial colleagues (a copy of the memo apparently may be attached to the complaint as Appendix A). 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.

And although it’s clear from the story in The Federalist, DOJ’s complaint also leaves out that the putatively inappropriate comments made by Boasberg were his efforts to convey the views of his colleagues on the district court, and not his own opinions. That, too, is going to matter below.

Four (Fatal) Problems With DOJ’s Complaint

Against that backdrop, it seems to me that there are four different reasons why what Boasberg is alleged to have said doesn’t come anywhere close to judicial misconduct. Both separately and together, these points leave the distinct impression that the purpose of the complaint is not to actually obtain formal discipline against Chief Judge Boasberg, but rather to intimidate other judges or otherwise spread misinformation about the lower federal courts.

First, and most obviously, it wasn’t public. One of the canons of the Code of Conduct for United States Judges that DOJ claims Boasberg violated is Canon 3(A)(6). That provision states that “A judge should not make public comment on the merits of a matter pending or impending in any court.” 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.3 (Or, even less logically, the violation occurs only when someone else publicizes the judge’s private comments.) To ask whether that’s a fair reading of Canon 3(A)(6) is to answer it. (One might also note that the comments were not “on the merits of a matter pending or impending in any court,” but rather a broader concern about governmental behavior across cases, but there’s only so much time in the day.)

Second, whereas DOJ characterizes Boasberg’s comments as “push[ing] a wholly unsolicited discussion” and “attempt[ing] to transform a routine housekeeping agenda into a forum to persuade the Chief Justice and other federal judges of his preconceived belief that the Trump Administration would violate court orders,” these appear to be radical mischaracterizations of what actually happened (like the repeated insistence in the complaint that Boasberg’s comments were public). Going off The Federalist report alone, it appears that Boasberg was simply doing his job—relaying concerns raised by his colleagues to the Chief Justice, almost certainly in response to a specific prompt that he do so.4 Not only is there nothing nefarious there; the central role of the district court representatives on the Judicial Conference is to act as a conduit between the dozens of district judges in their court and the federal judiciary’s policymaking arm writ large. If Boasberg was accurately relaying his colleagues’ concerns (and, in all of this, no one has alleged that he wasn’t), then he was … doing his job … by saying what he said.

Third, although DOJ’s (unsworn) complaint insists that “the Trump Administration has complied with every court order,” that’s quite obviously not true. One of the most visible examples came in a case before Chief Judge Boasberg himself—where Boasberg has filed an exhaustive, 46-page opinion finding probable cause to conclude that DOJ lawyers and other government officials acted in “willful disregard” of a temporary restraining order when they removed more than 150 Venezuelan nationals to El Salvador on the night of March 15, 2025. Other examples abound. If a federal judge at the Judicial Conference were making representations to the Chief Justice and other judges in attendance that reflected unsupportable bias against a party, that would be one thing. But when this entire episode is based upon Chief Judge Boasberg raising his colleagues’ concerns about what would happen if the government generally failed to comply with court orders (versus not complying in specific cases), and the government has since … failed to comply with many court orders, again, it seems like what Boasberg was doing is exactly what he should have been doing.

Fourth, and finally, even if the comments had been public; even if the comments reflected Boasberg’s views, rather than a summary of his colleagues’ concerns; and even if those concerns weren’t well-taken, … it’s still not clear to me where there would be a violation of the Code of Conduct for United States Judges here. Boasberg did not say that he (or his colleagues) was pre-disposed to rule against the government in any specific case. He did not say that he (or his colleagues) believes any of the specific government policies being challenged in any of these cases are unlawful. And he did not say that he (or his colleagues) have any pre-formed views about how they were going to rule in particular disputes.

The breathless piece in The Federalist nevertheless asserts that the real problem with Boasberg’s comments is that they demonstrate a violation of the presumption of regularity—the idea that, all things being equal, courts should assume that the government turns square corners. But not only is that presumption rebuttable (including in light of the government’s behavior), but DOJ’s only evidence that the presumption wasn’t followed is the litigation in the J.G.G. Alien Enemy Act case—where Boasberg proceeded methodically and by the book in building a record of DOJ’s misbehavior (and giving the government every opportunity to comply), and where the ground on which the Supreme Court ultimately disagreed with Boasberg involved a technical jurisdictional question (about how challenges to Alien Enemy Act removals should be filed) on which the 5-4 Supreme Court majority made new law. Again, none of that comes anywhere close to the kind of misconduct for which Congress enacted the Judicial Conduct and Disability Act of 1980.

Nor is the complaint on any stronger footing when it tries, over and over again, to impute some kind of nefarious intent to Chief Judge Boasberg—such as claiming that he “attempted to improperly influence Chief Justice Roberts,” that he was “trying to entrap the Chief Justice,” and that his comments reflected “an apparent attempt to persuade [the members of the Conference] to adopt his erroneous view.” Leaving aside the factual misrepresentations in the complaint (such as that Boasberg’s comments were “unsolicited”), it’s worth returning to what this was all about: Boasberg telling other members of the Judicial Conference that some of his colleagues were concerned about the possibility that the Trump administration might not comply with some of their orders in unnamed and unspecified cases. Even if there’s room for disagreement about how legitimate a concern that may have been, there’s just nothing in the Code of Conduct that comes anywhere close to preventing a member of the Judicial Conference from raising it therein.

DOJ’s Real Endgame

As the above analysis suggests, this “complaint” against Chief Judge Boasberg has virtually no chance of succeeding. In ordinary times, I have to imagine that D.C. Circuit Chief Judge Sri Srinavasan would just dismiss such a complaint out of hand. Given the politics, it’s possible that he’ll go out of his way to dot the i’s and cross the t’s here—by referring it to a panel of judges for resolution under the terms of the Judicial Conduct and Disability Act. But even that move would just postpone the inevitable. Chief Judge Boasberg did nothing wrong; and the members of the D.C. Circuit Judicial Council are not about to conclude otherwise.

If that’s true, then the question becomes why DOJ is doing this—and why Attorney General Bondi decided to make such a public spectacle out of a (to my mind, frivolous) complaint against a highly respected federal district judge. Given what I know about Chief Judge Boasberg (who is not the type of jurist to give in to this kind of pressure), it seems to me that there are two obvious audiences for such a move.

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. That would be a shame; the separation of powers is supposed to be a two-way street. And the notion that judges are powerless to identify systemic problems in the courts over which they preside is not only belied by 236 years of federal judicial practice, but it would also render the judicial branch even more dependent upon the democratically elected branches of government.

The second audience is the President’s supporters, who are being fed a steady stream of deeply misleading accounts of how litigation against Trump administration policies is unfolding. From that perspective, a handful of biased, Democratic-appointed district judges have been entirely responsible for lawless rulings thwarting the President’s policy goals, and they’ve been put back in their place, time and again, by the Supreme Court.

Of course, that narrative is preposterous. I’ve explained in detail how even the government’s remarkably positive track record in the Supreme Court is coming (1) from lower-court rulings by an ideologically diverse set of lower-court judges; (2) in a small minority of the total cases challenging Trump administration policies; and (3) in many cases with no substantive endorsement of what the government is actually doing. But for folks who don’t get a lot of nuance with their news, reports about a formal misconduct complaint against one of the district judges who has been at the center of one of the most visible disputes, and without any of the relevant context, can serve only to fan the flames. The fact of the matter is that, over the first six months of the second Trump administration, federal district courts have been the principal check on lawlessness by the executive branch—and even when those courts have gotten things “wrong,” their behavior has been, in virtually every case, consistent with the highest standards of the profession. That’s a problem for the Trump administration—one that it can’t solve simply by seeking emergency relief from the Supreme Court.

And that gets to the last and most troubling point about all of this. In her tweet on Monday, Bondi wrote that Boasberg’s comments “have undermined the integrity of the judiciary, and we will not stand for that.” 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. Whatever the motive for the complaint, it seems quite clear that the government at the very least knows that its behavior will further erode public support and respect for federal district judges. Indeed, given how the episode is being covered thus far not just by right-wing media, but even by more responsible outlets, that erosion may already be happening.

In that respect, it seems especially important for folks to be rallying to the defense not just of Chief Judge Boasberg, specifically, but of the lower federal courts, in general. Part of that includes conveying the factual and analytical bankruptcy of DOJ’s misconduct complaint—as this post has attempted to do. But part of it is more generally reminding everyone who will listen that federal judges are not robot umpires calling balls and strikes. Part of their job is not just to decide cases before them, but to also raise institutional concerns about the functioning of the legal system to those in a position to hear and act upon them. Federal judges should be encouraged to identify systemic issues affecting their ability to do their jobs—even (if not especially) when those systemic issues involve the behavior of the current administration.

Folks like me can try to provide the missing context so that informed citizens can make their own assessment of the situation, but it’s also incumbent upon those in a position to speak authoritatively to the proper role of federal judges vis-a-vis the Judicial Conference to actually do so. And the person perhaps best situated to make that point is the person to whom Boasberg’s comments were initially directed, and the Judicial Conference’s presiding officer: The Chief Justice of the United States.

The complaint doesn’t have page numbers (because why should such a filing be fastidious?), but it’s page 2 of the PDF.

As I’ve explained before, the Judicial Conference of the United States is the policymaking arm of the federal judiciary. It’s composed of the Chief Justice; the chief judges of each of the 13 circuit courts of appeals; the Chief Judge of the Court of International Trade; and one district judge from each of the 12 geographic circuits (Chief Judge Boasberg is the D.C. Circuit’s district judge representative).

The Canon includes an express exception for “public statements made in the course of the judge’s official duties.” It certainly seems like reporting at a Judicial Conference meeting on the concerns of the judges that a member of the Conference represents would qualify—if, that is, it were public (which, again, it is not). The complaint lazily asserts that “making off-topic remarks on the merits of a case . . . does not fall within the official duties of a judge,” but it provides no support for the assertion that the remarks were “off topic,” let alone any analysis of the duties of a member of the Judicial Conference vis-a-vis the judges they represent.

I’ve long understood that there’s a tradition in which the Chief Justice has an informal breakfast with the district court representatives to air these kinds of concerns (and a separate informal gathering with the circuit court representatives). Perhaps that was the context in which these remarks were made.