The denouement of DOJ's misconduct complaint against Chief Judge Boasberg provides useful lessons relating to both the Department's continuing misbehavior and the emptiness of calls for impeachment.
Thank you for continuing to shine light on the...what other word can we use but tragic?...destruction from the top down of the once rightfully proud DOJ.
Its reputation among people who don’t particularly matter is certainly being shredded but judges seem to still issue warrants, give it deference, and so on.
Unless and until there are real consequences for this, it doesn’t matter.
Observers who are big on pointing out which president appointed which Art. III judge, presumably believing that a judge's politics invariably dictate the judge's decisions, might want to note that Judge Sutton is a Republican appointee.
Do you have thoughts on this question: Given the unwillingness/refusal of DOJ to produce attachment A - the proof on which the complaint abides- does Chief Judge Sutton have an ethical duty to report the conduct of the author of the complaint to the appropriate bar association?
In short, Professor Vladeck, are you stating that judges should no longer give the Justice Department the presumption of regularity for any cases with "even a whiff of political involvement?
"There’s just no serious argument, at this point, that any court should take DOJ’s representations in cases with even a whiff of political involvement at face value—or give it any benefit of the doubt when it comes to its litigation behavior."
Is the DOJ engaged in much work on other cases, like prosecutong sex trafficking?
A comment by Todd Blanche on CNN yesterday suggested that they are, but we sure aren't hearing about them, beyond the Epstein files. That could partly be due to the publicity that the political ones get. It could also be that most of the resources in the DOJ are now focused on either defending the President, or going after his so-called enemies.
Federal Grand Juries: our last line of protection and investigation
The Department of Justice is investigating Minnesota governor Tim Walz, Minneapolis mayor Jacob Frey, and others for interfering with ICE enforcement. They were summoned to appear before a federal grand jury in what Walz and Frey call a politically motivated prosecution. While DOJ is investigating what it should not, it refuses to investigate what it should, such as federal agents openly killing Renée Good and injuring many others. Doubts abound that DOJ, which obstructed local inquiries, can conduct a fair investigation into Alex Pretti’s execution.
Can Walz and Frey find protection from DOJ’s misuse of a federal grand jury, and what can communities do when DOJ refuses to investigate crimes by federal agents? The answer lies with an institution given both the power to protect and the power to investigate: the federal grand jury.
The Supreme Court has consistently held that a federal grand jury functions “independently of either prosecuting attorney or judge.” It is not part of Article III’s judiciary nor is it part of the executive under Article II. It is a body completely independent of either courts or DOJ lawyers. Stirone v. United States, 361 U. S. 212 (1960); United States v. Sells Engineering, Inc., 463 U.S. 418 (1983); and United States v. Williams, 504 US 36 (1992).
With its independence established, the rest is obvious.
Who controls grand jury proceedings? The grand jury itself. Unfortunately, grand jurors rarely realize their independence and almost always do whatever prosecutors tell them to do. This needs to be changed.
Who can bring matters to the attention of a grand jury? Most federal courts, including Minneapolis, use the national Grand Jury Handbook. These procedures recognize that a grand jury may receive information to initiate an investigation from several sources.
Matters may be brought to [a grand jury’s] attention in three ways: (1) by the government attorney; (2) by the court that impaneled it; and (3) from the personal knowledge of a member of the grand jury or from matters properly brought to a member’s personal attention.
A court can thus advise a grand jury that federal agents might have violated the law, and a grand jury can inquire and investigate with or without the approval of the Department of Justice. It can call witnesses to appear and demand documentary production. It can question government officials and agencies as to their conduct and whether they are conducting expected investigations. It can investigate, on its own, even if the government conducts its own separate investigation.
These are important points, but to act independently the grand jury needs a staff for investigation. Does a federal grand jury have one other than DOJ? If not, checkmate.
Please at some point discuss Judge Menendez rulings and behavior of the the 8th circuit. If the one judge can cite 100 violations of the law then why can’t Menendez use that to stop what is happening?
I appreciate the analysis, Prof. Vladeck. It's horrifying to watch the DOJ continue to do all it can to speed up its circling of the drain. Like, when the federal magistrate judge refused to approve the criminal complaint against journalist Don Lemon, and Pam Bondi had the DOJ arrest him anyway with charges almost as flimsy as those against Boasberg (as Lemon himself predicted would likely happen).
This whole action, if you can call it an action, plays directly into Ed Martin’s goal of “shaming” Trump opponents by filing frivolous lawsuits. A reminder: Martin is Trump’s failed nominee to be the DC US Attorney (so we now have Piro instead, ugh!) and Martin is now head of DOJ’s weaponization unit to carry out Trump’s retribution campaign. Same with Judge Boardman: just file a lawsuit that is totally unfounded and try to embarrass the target. It’s no wonder so many federal judges give little credence to filings by the Justice Department.
In addition to always becoming better informed from your newsletter, I had to share the Desdemona vs Emilia part with a couple of friends who are lawyers and Shakespeare fans - we all loved reading the briefs.
Off-topic considering the serious post, but thanks for sharing about the Shakespeare moot court. I had never heard of it as I don't live in DC, but that sounds super fun. I can't wait to look at the briefs and the other info shared. Most people say they are recovered lawyers, but I am a recovered Medieval Lit major and I love this kind of stuff like references to Shakespeare in decisions.
Thank you for continuing to shine light on the...what other word can we use but tragic?...destruction from the top down of the once rightfully proud DOJ.
What destruction?
Its reputation among people who don’t particularly matter is certainly being shredded but judges seem to still issue warrants, give it deference, and so on.
Unless and until there are real consequences for this, it doesn’t matter.
Observers who are big on pointing out which president appointed which Art. III judge, presumably believing that a judge's politics invariably dictate the judge's decisions, might want to note that Judge Sutton is a Republican appointee.
Do you have thoughts on this question: Given the unwillingness/refusal of DOJ to produce attachment A - the proof on which the complaint abides- does Chief Judge Sutton have an ethical duty to report the conduct of the author of the complaint to the appropriate bar association?
In short, Professor Vladeck, are you stating that judges should no longer give the Justice Department the presumption of regularity for any cases with "even a whiff of political involvement?
"There’s just no serious argument, at this point, that any court should take DOJ’s representations in cases with even a whiff of political involvement at face value—or give it any benefit of the doubt when it comes to its litigation behavior."
Is the DOJ engaged in much work on other cases, like prosecutong sex trafficking?
A comment by Todd Blanche on CNN yesterday suggested that they are, but we sure aren't hearing about them, beyond the Epstein files. That could partly be due to the publicity that the political ones get. It could also be that most of the resources in the DOJ are now focused on either defending the President, or going after his so-called enemies.
If so, should they be taken seriously at all?
Federal Grand Juries: our last line of protection and investigation
The Department of Justice is investigating Minnesota governor Tim Walz, Minneapolis mayor Jacob Frey, and others for interfering with ICE enforcement. They were summoned to appear before a federal grand jury in what Walz and Frey call a politically motivated prosecution. While DOJ is investigating what it should not, it refuses to investigate what it should, such as federal agents openly killing Renée Good and injuring many others. Doubts abound that DOJ, which obstructed local inquiries, can conduct a fair investigation into Alex Pretti’s execution.
Can Walz and Frey find protection from DOJ’s misuse of a federal grand jury, and what can communities do when DOJ refuses to investigate crimes by federal agents? The answer lies with an institution given both the power to protect and the power to investigate: the federal grand jury.
The Supreme Court has consistently held that a federal grand jury functions “independently of either prosecuting attorney or judge.” It is not part of Article III’s judiciary nor is it part of the executive under Article II. It is a body completely independent of either courts or DOJ lawyers. Stirone v. United States, 361 U. S. 212 (1960); United States v. Sells Engineering, Inc., 463 U.S. 418 (1983); and United States v. Williams, 504 US 36 (1992).
With its independence established, the rest is obvious.
Who controls grand jury proceedings? The grand jury itself. Unfortunately, grand jurors rarely realize their independence and almost always do whatever prosecutors tell them to do. This needs to be changed.
Who can bring matters to the attention of a grand jury? Most federal courts, including Minneapolis, use the national Grand Jury Handbook. These procedures recognize that a grand jury may receive information to initiate an investigation from several sources.
Matters may be brought to [a grand jury’s] attention in three ways: (1) by the government attorney; (2) by the court that impaneled it; and (3) from the personal knowledge of a member of the grand jury or from matters properly brought to a member’s personal attention.
A court can thus advise a grand jury that federal agents might have violated the law, and a grand jury can inquire and investigate with or without the approval of the Department of Justice. It can call witnesses to appear and demand documentary production. It can question government officials and agencies as to their conduct and whether they are conducting expected investigations. It can investigate, on its own, even if the government conducts its own separate investigation.
Raymond Caballero
These are important points, but to act independently the grand jury needs a staff for investigation. Does a federal grand jury have one other than DOJ? If not, checkmate.
Have you and your colleagues managed to figure out
(Cont) changes to your civil procedure classes, as mentioned a few posts ago?
Please at some point discuss Judge Menendez rulings and behavior of the the 8th circuit. If the one judge can cite 100 violations of the law then why can’t Menendez use that to stop what is happening?
Why isn’t the decision grounds for a professional misconduct or disciplinary proceeding against the attorneys involved?
It seems to me that Judge Boesberg has been slandered. Does the judge have recourse here?
I appreciate the analysis, Prof. Vladeck. It's horrifying to watch the DOJ continue to do all it can to speed up its circling of the drain. Like, when the federal magistrate judge refused to approve the criminal complaint against journalist Don Lemon, and Pam Bondi had the DOJ arrest him anyway with charges almost as flimsy as those against Boasberg (as Lemon himself predicted would likely happen).
This whole action, if you can call it an action, plays directly into Ed Martin’s goal of “shaming” Trump opponents by filing frivolous lawsuits. A reminder: Martin is Trump’s failed nominee to be the DC US Attorney (so we now have Piro instead, ugh!) and Martin is now head of DOJ’s weaponization unit to carry out Trump’s retribution campaign. Same with Judge Boardman: just file a lawsuit that is totally unfounded and try to embarrass the target. It’s no wonder so many federal judges give little credence to filings by the Justice Department.
I wonder how Chief Judge Sutton dealt with his indigestion.
In addition to always becoming better informed from your newsletter, I had to share the Desdemona vs Emilia part with a couple of friends who are lawyers and Shakespeare fans - we all loved reading the briefs.
Off-topic considering the serious post, but thanks for sharing about the Shakespeare moot court. I had never heard of it as I don't live in DC, but that sounds super fun. I can't wait to look at the briefs and the other info shared. Most people say they are recovered lawyers, but I am a recovered Medieval Lit major and I love this kind of stuff like references to Shakespeare in decisions.
Your footnotes! Especially #4. 👍 Thanks for unpacking all of this. 🤓