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.
The DOJ has been gutted by MAGA loyalists' pledges and tests; many good public servants remain, but the impression I got was that they are constantly brow-beaten. I had a Trump challenge case in DC, and my DOJ counterpart and I had a conversation. I facetiously asked him what he did to deserve this case, and he told me he worked on the Mueller report.
Its reputation among “people who don’t particularly matter?” Way to diminish a large majority of citizens’ and their trust in Institutions as just so much ado about nothing. Wow.
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.
Your comment reminds me that the current journalistic practice of reporting the appointing president of federal judges when reporting their decisions fails to report the vote (and partisan identity) of the Senate confirmation of that judge. If one is relevant to the reader so is the other.
And maybe also the law school attended, and whether the judge passed the state bar exam on his/her first try. And any history of bone spurs should be mandatory.
One can have a debate about relevancy when it comes to Senate votes-- I think it probably is relevant if someone was confirmed on a straight party-line vote, as those judges tend to be ideologues-- but nobody could actually in good faith believe that what law school someone attended is anywhere close to as predictive of how they'll rule in a case as the partisan identity of that judge's appointer.
You are, in other words, trolling in service of an ideological fiction (that judges are not partisans). Embarrassing behavior.
It's not an "ideological fiction," nor am I "trolling." With rare exceptions, judges are not partisans. They take an oath (at least federal judges do) to administer justice "without fear or favor." The idea that judges are mere political animals who make decisions on a purely partisan basis shows an ignorance of the kind of work judges do -- and how they do it. I realize this isn't a popular view nowadays. People are inclined to write off judicial decisions they dislike as the result of partisanship or bias rather than a different take on the facts, the law, or both. But on the trial level especially, judges are simply trying to reach what they believe is a correct decision (meaning one that comports with the facts and law) and then go home. In every case, someone wins, and someone loses. For the losers to ascribe the losses to partisanship undermines the entire judicial enterprise. If that's what we're going to believe, we might as well trash the judicial system and resolve our disputes in the streets with our fists.
It's not a popular view because it's objectively false and people should not believe or say objectively false things.
Your presumption that I speak out of "ignorance" (rather than 15 years of practice before the very judges I speak of) is contemptible. I have seen numerous examples of cases where judges-- usually, but not always, far-right judges-- willfully misstate the record, cite cases for propositions they don't support or even directly contradict, intentionally falsify their description of what arguments a party is making, or otherwise engage in serious intellectual dishonesty in service of a partisan or political end. This phenomenon has been observed numerous times in highly-publicized Supreme Court cases, too, so it's not as if I'm on an island here.
To deny that this occurs, you must either yourself be utterly ignorant or, more likely I think, yourself an ideologue promoting the false conception that judges are nonpartisan.
Also, you seem to be sockpuppeting, so that's another point in favor of the trolling hypothesis.
I won't respond to your name-calling. I'm sorry you've found your legal career discouraging. I can say only that in my 44 years as a lawyer, I had a different experience. And I'll add that since I spent the final 22 of those years as a judge, I do in fact have an objective basis to comment on how judges behave and how they make their decisions.
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?
Also we must question the ethics of AG Bondi’s public comments and refusal to provide Exh A as head of the Department - as the Complaint was on its behalf (I think).
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?
For non-attorneys unfamiliar with the definitions and history of the presumptions of regularity and good faith and want to understand what those terms mean and their impact, here's a passage and link to a Brennan Center of Justice analysis from October of last year.
"DOJ attorneys historically have benefited from presumptions of regularity and good faith in federal courts. Under the presumption of regularity, courts assume that federal government officials, including DOJ attorneys, “have properly discharged their official duties” unless there is “clear evidence to the contrary.” In other words, courts have generally taken as given that factual representations by DOJ attorneys have been vetted and are accurate and that their legal positions are well supported by the law and the facts. Some courts have also understood a related presumption of good faith, which assumes a government attorney is acting with proper intentions. While these presumptions may be overcome, until recently courts have rarely found cause to do so."
They shouldn't, but they will; it's far too useful to the right-wing judiciary to have a semi-formalized way of officially refusing to recognize or condemn the behavior of the Trump Administration. Oh, gee, it's not that we're partisan hacks or morons for pretending to believe the administration when it tells us something facially ridiculous, it's just that our hands are tied by oh-so-neutral legal principles. Sure is a bummer that those principles just so happen to conveniently whitewash unethical Republican Party conduct.
"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.
Jerry, We have many unanswered questions because we have no history of dealing with state sponsored lawlessness via our federal agencies with a complicit DOJ. Normally, DOJ assists a grand jury, but when DOJ is up to its ears in perpetrating or covering up bad conduct, a grand jury must act independently.
GJ has no independent budget and relies on court and DOJ for expenses. But it can investigate, issue subpoenas, etc. It can ask feds to investigate, but I don’t know if it can force them to. It can interview state and local law enforcement about illegal federal misconduct, but I am guessing that it would need court approval to divulge its findings to the state. There is no question that it can investigate DOJ and federal agencies. It can and should. It can sign a bill of indictment but cannot force DOJ to sign and prosecute as that would be an executive function.
But certainly, a GJ can refuse to indict and it can refuse to be misused and participate in political and vindictive prosecutions or to harass and intimidate those who exercise constitutional rights.
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.
The DOJ has been gutted by MAGA loyalists' pledges and tests; many good public servants remain, but the impression I got was that they are constantly brow-beaten. I had a Trump challenge case in DC, and my DOJ counterpart and I had a conversation. I facetiously asked him what he did to deserve this case, and he told me he worked on the Mueller report.
Its reputation among “people who don’t particularly matter?” Way to diminish a large majority of citizens’ and their trust in Institutions as just so much ado about nothing. Wow.
I notice that you didn’t say I’m wrong in my assessment, though.
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.
Your comment reminds me that the current journalistic practice of reporting the appointing president of federal judges when reporting their decisions fails to report the vote (and partisan identity) of the Senate confirmation of that judge. If one is relevant to the reader so is the other.
And maybe also the law school attended, and whether the judge passed the state bar exam on his/her first try. And any history of bone spurs should be mandatory.
Somewhere David Souter is laughing✨
One can have a debate about relevancy when it comes to Senate votes-- I think it probably is relevant if someone was confirmed on a straight party-line vote, as those judges tend to be ideologues-- but nobody could actually in good faith believe that what law school someone attended is anywhere close to as predictive of how they'll rule in a case as the partisan identity of that judge's appointer.
You are, in other words, trolling in service of an ideological fiction (that judges are not partisans). Embarrassing behavior.
It's not an "ideological fiction," nor am I "trolling." With rare exceptions, judges are not partisans. They take an oath (at least federal judges do) to administer justice "without fear or favor." The idea that judges are mere political animals who make decisions on a purely partisan basis shows an ignorance of the kind of work judges do -- and how they do it. I realize this isn't a popular view nowadays. People are inclined to write off judicial decisions they dislike as the result of partisanship or bias rather than a different take on the facts, the law, or both. But on the trial level especially, judges are simply trying to reach what they believe is a correct decision (meaning one that comports with the facts and law) and then go home. In every case, someone wins, and someone loses. For the losers to ascribe the losses to partisanship undermines the entire judicial enterprise. If that's what we're going to believe, we might as well trash the judicial system and resolve our disputes in the streets with our fists.
It's not a popular view because it's objectively false and people should not believe or say objectively false things.
Your presumption that I speak out of "ignorance" (rather than 15 years of practice before the very judges I speak of) is contemptible. I have seen numerous examples of cases where judges-- usually, but not always, far-right judges-- willfully misstate the record, cite cases for propositions they don't support or even directly contradict, intentionally falsify their description of what arguments a party is making, or otherwise engage in serious intellectual dishonesty in service of a partisan or political end. This phenomenon has been observed numerous times in highly-publicized Supreme Court cases, too, so it's not as if I'm on an island here.
To deny that this occurs, you must either yourself be utterly ignorant or, more likely I think, yourself an ideologue promoting the false conception that judges are nonpartisan.
Also, you seem to be sockpuppeting, so that's another point in favor of the trolling hypothesis.
I won't respond to your name-calling. I'm sorry you've found your legal career discouraging. I can say only that in my 44 years as a lawyer, I had a different experience. And I'll add that since I spent the final 22 of those years as a judge, I do in fact have an objective basis to comment on how judges behave and how they make their decisions.
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?
Also we must question the ethics of AG Bondi’s public comments and refusal to provide Exh A as head of the Department - as the Complaint was on its behalf (I think).
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?
For non-attorneys unfamiliar with the definitions and history of the presumptions of regularity and good faith and want to understand what those terms mean and their impact, here's a passage and link to a Brennan Center of Justice analysis from October of last year.
"DOJ attorneys historically have benefited from presumptions of regularity and good faith in federal courts. Under the presumption of regularity, courts assume that federal government officials, including DOJ attorneys, “have properly discharged their official duties” unless there is “clear evidence to the contrary.” In other words, courts have generally taken as given that factual representations by DOJ attorneys have been vetted and are accurate and that their legal positions are well supported by the law and the facts. Some courts have also understood a related presumption of good faith, which assumes a government attorney is acting with proper intentions. While these presumptions may be overcome, until recently courts have rarely found cause to do so."
https://www.brennancenter.org/our-work/research-reports/department-justices-broken-accountability-system
They shouldn't, but they will; it's far too useful to the right-wing judiciary to have a semi-formalized way of officially refusing to recognize or condemn the behavior of the Trump Administration. Oh, gee, it's not that we're partisan hacks or morons for pretending to believe the administration when it tells us something facially ridiculous, it's just that our hands are tied by oh-so-neutral legal principles. Sure is a bummer that those principles just so happen to conveniently whitewash unethical Republican Party conduct.
"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.
Jerry, We have many unanswered questions because we have no history of dealing with state sponsored lawlessness via our federal agencies with a complicit DOJ. Normally, DOJ assists a grand jury, but when DOJ is up to its ears in perpetrating or covering up bad conduct, a grand jury must act independently.
GJ has no independent budget and relies on court and DOJ for expenses. But it can investigate, issue subpoenas, etc. It can ask feds to investigate, but I don’t know if it can force them to. It can interview state and local law enforcement about illegal federal misconduct, but I am guessing that it would need court approval to divulge its findings to the state. There is no question that it can investigate DOJ and federal agencies. It can and should. It can sign a bill of indictment but cannot force DOJ to sign and prosecute as that would be an executive function.
But certainly, a GJ can refuse to indict and it can refuse to be misused and participate in political and vindictive prosecutions or to harass and intimidate those who exercise constitutional rights.
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?
Complaining is what lawyers do! Are they supposed to turn it off like a faucet?😂
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. 🤓