The probe should never have commenced.
The probe should never have commenced.
T hat lawfare is harmful to the rule of law is obvious. Yet, some of the ways it damages the justice system are not.
The latest iteration of this theme is the Trump Justice Department’s manifestly partisan investigation of Jerome Powell, the chairman of the Federal Reserve. Last week, James Boasberg, the Obama-appointed chief judge of the federal district court in Washington, D.C., quashed a pair of grand jury subpoenas issued to the Fed by the Justice Department — specifically, by the office of Jeanine Pirro, D.C.’s Trump-appointed and Senate-confirmed U.S. Attorney. (As I’ve previously detailed in connection with various investigations, a local D.C. district court rule dictates that all grand jury disputes are referred to the district’s chief judge.)
In a 26-page memorandum opinion issued last week, Judge Boasberg found overwhelming evidence that the subpoenas, at least in part (and I’d say a lot more than “in part”), were improperly motivated; basically, the evidence demonstrates prosecutorial vindictiveness fueled by presidential vindictiveness.
President Trump has run what you might call a “maximum pressure” campaign against Powell to lower interest rates and to step down so Trump can replace him. Powell’s term as chairman is soon to expire, and the president has nominated Kevin Warsh to replace him; but Powell’s term as a member of the Fed’s Board does not expire until January 31, 2028. Trump clearly wants him out while the Republicans still firmly control the Senate such that he can be confident about getting his preferred nominee confirmed — conditions that may not remain after the November midterms.
Mainly the campaign has included the familiar juvenile social media harassment, which Boasberg extensively documents, beginning with the first sentence of the opinion:
Jerome ‘Too Late’ Powell has done it again!!! He is TOO LATE, and actually, TOO ANGRY, TOO STUPID, & TOO POLITICAL, to have the job of Fed Chair. He is costing our Country TRILLIONS OF DOLLARS . . . . Put another way, ‘Too Late’ is a TOTAL LOSER, and our Country is paying the price! Donald J. Trump (@realDonaldTrump), Truth Soc. (July 31,2025, at 7:11 AM), https://perma.cc/PX9L-RPSD. That is one of at least 100 statements that the President or his deputies have made attacking the Chair of the Federal Reserve and pressuring him to lower interest rates.
As is standard operating procedure in Trump II, the president has also disgracefully brought the Justice Department to bear (as I’ve previously discussed here and here). Yes, the man who has somehow managed to increase his own personal net worth by $1.4 billion in 14 months as president, and whose unauthorized destruction of the East Wing for a ballroom vanity project has resulted in a doubling of the original cost estimate (to $400 million as of late last year, up from $200 million last July), has intimated that cost overruns in lavish renovations of two Fed buildings smack of corruption and self-dealing by the chairman.
It appears to be an empty allegation. The cost overruns for a multi-year project (to about $2.5 billion, up from the original $1.9 billion) are modest by Washington standards (the Trump administration spent $220 million in just a few months on a Department of Homeland Security ad campaign, the only evident purpose of which was to promote the political career of the now-ousted secretary, Kristi Noem). The Fed’s renovations are monitored by Congress. The cost overruns are easily explained: Covid-era supply chain woes and inflation raised construction costs across the economy. The Fed is self-funding so taxpayers are not footing the bill. Sometime in the next 22 months, moreover, Powell is leaving the Fed, so if he’s building Versailles, it’s not going to be his for long.
Nevertheless, at a White House event in January, Trump derided his district U.S. attorneys for what he perceived as their reluctance to pursue cases of importance to him (i.e., cases against political rivals and scapegoats). The next day, Pirro’s office sent grand jury subpoenas to the Fed, demanding information about the renovations.
The rationale is said to be based on concerns about the accuracy of Powell’s congressional testimony last summer, when he was briefly asked about the renovations. That is rich, given that (a) Congress has not referred the matter to the DOJ or offered any inkling that lawmakers believe Powell’s testimony was troubling, much less perjurious; and (b) several Trump officials, including Noem, Attorney General Pamela Bondi, and FBI Director Kash Patel, regard oversight hearings as opportunities to browbeat and deflect lawmakers’ questions rather than answer them in good faith, so the DOJ’s sudden interest in potential obstruction of Congress seems, shall we say, a tad insincere.
In any event, there is public reason to believe neither that Powell lied to Congress nor that, were he not a stone in the president’s shoe, the Trump administration would care about his testimony. The Trump DOJ’s investigation is lawfare through and through: a tactic to extort Powell into bending to Trump’s will rather than calling monetary policy as he sees it (the latter is the point of having a Fed that is insulated from political control). The Powell probe should never have commenced, and it should be dropped.
But, as ever with the law, things are more complicated than that.
There are three relevant constitutional principles at play here. First, it is an abuse of prosecutorial power to use the government’s law-enforcement apparatus to harass political enemies. Second, in our system, it is essentially for Congress, not the judiciary, to address abuse of presidential power. Third, to the extent the judiciary has a role in protecting people, it is generally after the DOJ has indicted a case, at which point the accused has an array of due process rights to challenge the prosecution; by contrast, the decision whether to investigate or bring charges against someone is wholly committed to the executive branch, with neither the courts nor Congress empowered to interfere.
Now, with those bright-line principles stated, there are gray areas. For example, there is no shortage of precedent authorizing recipients of subpoenas to move to quash them over some matter of privilege, or to narrow the government’s information demands as overbroad (the DOJ typically asks for the moon in demanding the production of documentary evidence, even if what it is investigating is just a narrow transaction). Nevertheless, suspicion that the DOJ is conducting a fishing expedition in the absence of concrete, incriminating evidence is not enough to get a grand jury quashed. The grand jury does not need probable cause of a crime to investigate; to the contrary, probable cause is the standard for indictment, so the very purpose of a grand jury investigation is to determine whether there is sufficient evidence to indict.
When the system is working properly, none of this is a problem. When a real crime has been committed, it is apparent why the DOJ is investigating. And to the extent that prosecutors’ information demands are overly burdensome, they work out compromises with lawyers for subpoena recipients, often without need of court intervention; the investigators get what they need and the recipient is not put to too much stress (beyond having to hire lawyers, etc.).
On the other hand, if an investigation constitutes obvious harassment, that is an abuse of power. If there is a pattern of such abuses, as there is with the Trump administration’s lawfare practices, the remedy is for Congress to intervene. In Article I, the Constitution vests Congress with tools for this purpose: oversight hearings to expose the abuse, which can be politically damaging for the White House; the power of the purse to slash the DOJ’s budget; the appointments process to stall the president’s nominations; the legislative process to deny the president’s priorities until the administration ceases and desists; and when all else fails, impeachment of executive officials involved in the abuse, potentially up to and including the president.
Our system, however, has degraded into dysfunction. Republicans control both houses of Congress. Although they complained at length and loudly about Biden administration lawfare, they are too intimidated by our demonstrably vindictive president to make a peep about Trump administration lawfare. That will change dramatically if, as most analysts project, the Democrats take control of at least one chamber (likely the House) next year, after the midterms. But for now, with Republicans AWOL — even though, if you secretly polled them, none would accuse Powell of wrongdoing — the congressional check on executive abuse of power is an illusion.
It is thus left to the court, and that’s bad, but not for Powell’s sake. If we were just talking about the merits of the outcome, the subpoenas to the Fed — which compromise its statutory independence in addition to harassing it, and Powell — should be nullified. As far as process is concerned, however, a federal judge has no business telling the DOJ whom it can investigate; it should have no authority to block the prosecutors from acquiring, for the grand jury’s consideration, potentially relevant evidence that is not shielded by a confidentiality privilege (e.g., attorney-client, doctor-patient, spousal).
Remember, too, the Supreme Court’s immunity decision, Trump v. United States (2024). In terms of presidential immunity, the Court instructs that if there is a legitimate basis in executive power to take a particular action, courts will not inquire into the motive for taking the action. In an investigation of a president, that works against the DOJ (as special counsel Jack Smith learned). And in an investigation of Powell over his official acts, it might work to his advantage, too, if charges were ever brought. But for now, it should work to the DOJ’s advantage. The DOJ has legitimate power to investigate; it doesn’t need to prove Powell committed a crime in order to investigate whether he did; and even if there is immense evidence of improper motive, that does not eliminate the possibility that the DOJ could simultaneously also have legitimate motives.
I don’t believe Powell committed a crime, but neither do I believe he is immune from being investigated in connection with cost overruns and any possible discrepancies in his testimony.
The overarching issue here isn’t fairness to Powell. It’s the precedent. If a judge can quash subpoenas on the basis of a criminal suspect’s claims that the prosecution is corruptly motivated, that is a damaging outcome. Constitutionally speaking, it would usurp legitimate prosecutorial discretion and inappropriately allow courts to intrude into decisions about investigations. Administratively speaking, it would burden the system with waves of litigation, which reduces the overall quality of justice.
Don’t get me wrong: The main culprit here is executive lawfare, not the judiciary. Congress is AWOL on a matter of patent executive abuse, so a judge is trying to pick up the slack. The problem isn’t just that the judges shouldn’t have to do this; it’s that in straining to solve this problem, they create new problems that may be worse.
Judge Boasberg reasoned that, under his interpretation of D.C. Circuit precedents, he had authority to quash the subpoenas (even if there might theoretically be a legitimate basis for investigation) if the evidence indicated the improper (vindictive) executive motive was substantially the dominant motive.
That is a deleterious outcome if it means that, henceforth, suspects can be shielded from criminal investigation based on judicial mind reading about prosecutors’ motives. Not surprisingly, this is the Trump DOJ’s main avenue of attack. Prosecutors are vowing to appeal on the rationale that Boasberg is usurping prosecutorial investigative discretion.
But here is where I think Boasberg is on solid ground — and it’s the part of his ruling the DOJ isn’t talking about.
Knowing that what he was doing was controversial, notwithstanding the rich evidence of improper motive, the judge invited Pirro’s prosecutors to submit to him alone (ex parte and in camera) “any additional justifications for the subpoenas” beyond the vague speculations they’ve offered about the potential “specter of fraud” and the notion that there were “possible discrepancies” in Powell’s testimony that were “possibly problematic” — without identifying what those possibly problematic discrepancies were. As Boasberg reports:
The Government at the hearing declined to offer any other evidence. . . . Nor has it supplied any written ex parte submission. The Court is thus left with no credible evidence to think that the Government is investigating suspicious facts as opposed to targeting a disfavored official.
As a former Justice Department prosecutor, I don’t like this process; I can easily see ways it could compromise bona fide investigations going forward. But the dereliction here is the Trump administration’s insidious lawfare, not the court’s remedial effort. I don’t see what more Judge Boasberg could have done to give the DOJ the opportunity to show that it was acting in good faith. The DOJ demurred.
On this record, a DOJ appeal would be foolish. That’s not to say prosecutors won’t do so if the president insists. Of course, the president’s top priority ought to be getting Kevin Warsh confirmed. The Senate may be on life support, but it’s not dead. Despite his high regard for Warsh, Senator Thom Tillis (R., N.C.) has vowed that the Banking Committee, on which he has a deciding vote, will not approve Warsh, and the Senate will not vote on the nomination unless the DOJ publicly drops the Powell investigation.
Good for him. Yes, Tillis has become a profile in courage only after announcing that he is not seeking reelection, which leaves the president with nothing to threaten him over. But the right thing is so rarely done these days, I’ll take it without further complaint.
The Trump administration should drop this shameful probe before it does even more damage — to the rule of law, to the Fed, and to the administration itself.