One needn’t be a fan of the probe to see the folly in GOP attacks on the court.
One needn’t be a fan of the probe to see the folly in GOP attacks on the court.
O n Capitol Hill, Republicans have ostensibly mobilized to impeach James Boasberg, the Obama-appointed chief judge of the federal district court in Washington, D.C., over rulings he made while overseeing grand jury proceedings in Biden Justice Department special counsel Jack Smith’s investigations of President Trump. I say “ostensibly,” because Judge Boasberg’s impeachment and removal can’t be the real objective. Such an enterprise would be futile.
A dozen years ago in Faithless Execution, my book about impeachment, I recalled the succinct response of Senator Ted Cruz (R., Texas) when pressed by a frustrated GOP supporter about why Congress didn’t impeach President Obama over his abuses of executive power: Republicans lacked the votes in the Senate, case closed.
In those days, before impeachment became an exercise in partisan hackery, national leaders still hewed to a rational principle: If the misconduct at issue was not sufficiently egregious that it generated condemnation across ideological and partisan lines, then the nuclear option of impeachment was to be avoided. The guiding metric was the Constitution’s two-thirds’ majority vote standard for conviction in the Senate. If lawmakers knew there was no chance of building political support for that outcome, then it would be foolish to start the impeachment machinery. It would not just be wasted effort; it would be counterproductive: An official who survives an impeachment attempt is apt to claim he has been exonerated, to perceive a high degree of impunity, and thus to engage in more — and possibly more audacious — misconduct.
This is no longer a matter of mere conjecture.
Discipline — the expectation that lawmakers will think through the chess game — is important because it’s not hard to impeach: The Constitution requires only a simple House majority to approve impeachment articles.
There were still vestiges of that discipline back when Senator Cruz was asked about President Obama. Republicans then had a 33-seat edge in the House — not that impressive historically but lopsided by current measures. Still, Cruz was right: Don’t start what you can’t finish.
That’s why, before Bill Clinton’s 1999 impeachment and acquittal, there had been only two attempts to impeach a president in American history: Andrew Johnson, who was narrowly acquitted, and Richard Nixon, who resigned after the Judiciary Committee approved impeachment articles but before the full House could vote.
Today, I doubt there is a majority in the (barely) Republican-controlled House in favor of the “abuse of power” impeachment article that was proposed against Boasberg nearly five months ago. The House hasn’t voted on it, so Republicans will probably never get to the point of demonstrating the futility of a Senate trial. What’s happening on the Hill is theater for the base.
Judicial impeachments are not as historically rare as presidential impeachments. To be more accurate, I should say, as rare as the latter used to be. In the 16 years since the last impeachment of a federal judge (G. Thomas Porteous Jr., who was convicted and removed), there have been (a) two presidential impeachments, both of Donald Trump, who was acquitted both times; and (b) one impeachment investigation of Joe Biden, which produced a scathing report by House committees that were in such razor-thin GOP control that Republicans did not push their luck by writing articles, let alone voting on them. Democrats are already stirring the impeachment pot in anticipation of targeting Trump, yet again, if they take control of the House after the November midterms.
Judicial impeachments, of which there have been 15, are interesting. The most important one was against Samuel Chase. That’s only partly because it’s the only impeachment of a Supreme Court justice. Chase is the only jurist impeached over his performance of judicial duties: President Jefferson urged his removal over his partisan handling of trials and his general infidelity to the law. When Chase was acquitted by the Senate in 1805, this was taken a precedent for the proposition that judges should never be impeached over their decision-making, only over corrupt self-dealing.
Sure enough, the other 14 judicial impeachments (resulting in eight convictions and removals) have involved judges who committed such crimes as bribery, not judges whose rulings patently flouted the Constitution or other federal law — of which there has been no shortage.
This is a wayward interpretation of the impeachment clause. As Hamilton explained (in Federalist No. 65), high crimes and misdemeanors are political offenses. He meant political, not in the partisan sense, but in the sense of political office: gross abuses of power, violations of the public’s trust. Judges who willfully or systematically ignore their solemn duty to apply the law faithfully merit the law’s ultimate penalty: impeachment, removal, and disqualification from future office.
Let’s revisit presidential impeachments for a moment. The 2019 impeachment of President Trump over his dealings with Ukraine — encouraging a foreign government to investigate and prosecute his rival, Biden, then the likely Democratic nominee — was abusive. It was blatantly partisan hardball by House Democrats, who were miffed at the time that the Mueller probe had not produced the Trump-Russia “collusion” impeachment that they’d been promising their base for three years. They forged ahead even though the effort (a) had no chance of resulting in a Senate conviction, (b) was so shallow that Democrats barely mentioned it during the 2020 campaign against Trump, and (c) obscured the fact that Biden really had engaged in corruption (although that’s not a good reason for a president to encourage a foreign government to hound an American citizen).
Still, there was a silver lining, or at least a silver sliver: Congress reaffirmed the principle that presidents may be impeached and removed for abuse of power, correcting the widely held misimpression that impeachment required a prosecutable criminal-law offense.
This was always misguided because abuses of awesome government power are nearly always graver than criminal offenses. They are not mutually exclusive, of course, but the political wrong is sure to be more consequential than the legal wrong. After the Supreme Court’s 2024 immunity decision in Trump v. United States, however, the folly of requiring a prosecutable crime for impeachment would be even more ill-conceived: A president or other official could try to use immunity principles to fend off, not only prosecutors, but Congress. The point of the Court’s decision was to keep courts out of the business of second-guessing official presidential acts; the ruling has no bearing on the power of Congress — indeed, the constitutional duty of Congress — to check presidential abuses of power.
In the Ukraine case, the abuse of power claimed was not serious enough to warrant impeachment treatment. And a Democratic House majority more motivated to fulfill its public trust than satisfy its partisan lust would not have suspended other business so it could impeach President Trump. But that said, if an abuse of power is weighty (as it was, for example, in Trump’s actions to subvert the 2020 election), then impeachment must be on the table.
The same should be true with respect to judges. Boasberg, however, is a poor test case.
As I explained a few months back, the fact that Smith subpoenaed congressional telephone records (just usage data, not content of conversations) does not mean he was spying on Congress or investigating its Republican members. He was investigating Trump for pressuring lawmakers in the course of obstructing the constitutionally mandated congressional proceeding to ratify the results of a presidential election. If this were not obvious enough, note that Smith indicted Trump but did not even charge several Trump advisers whom Smith denominated as co-conspirators. He did not accuse members of Congress of complicity; he saw them as witnesses — not suspects but victims, in a sense, of a conspiracy to obstruct a legislative proceeding.
As I argued during Smith’s probe, there were many legal problems with Smith’s charges. His prosecution was a poor proxy for impeachment (which Democrats had botched in early 2021). The Supreme Court was also poised to gut the Justice Department’s expansive interpretation of the relevant obstruction statute — although, because the case against Trump was never tried, it’s not clear that the justices’ decision in Fischer v. United States (2024) would have doomed Smith’s obstruction charge.
Yet, even if the ultimate charges were dubious, it was not illegitimate for Smith to investigate Trump. In any era, it would be incumbent on the Justice Department to investigate credible allegations of tampering with federal election results and obstruction of Congress. In fact, the current Justice Department expends inordinate resources on these matters despite the dearth of predicating proof. In such investigations, any competent prosecutor would subpoena phone records to show that the implicated president was contacting and pressuring members of Congress. Doing so does not imply that the members were engaged in wrongdoing.
To be sure, whenever a federal prosecutor issues subpoenas to the Article I branch, it triggers separation of powers issues. But it is not Boasberg’s fault that the relevant witnesses in Smith’s probe of Trump were members of Congress. Yes, the judge issued a nondisclosure order (NDO) directing the service providers not to notify the members that their phone records had been subpoenaed. That, however, is standard DOJ procedure when phone records are subpoenaed during an investigation, because if the existence of the probe were revealed, the targets of it would have an incentive to destroy evidence or tamper with witnesses. For example, in the first Trump administration, in probing possible leaks of classified information to the media, the Trump DOJ subpoenaed the phone records of at least two congressional Democrats — Adam Schiff and Eric Swalwell. As a matter of course, prosecutors obtained an NDO directing the relevant service provider not to alert Schiff and Swalwell that prosecutors had collected their data.
The caterwauling about Boasberg this week by the aforementioned Ted Cruz and other Senate Republicans was disingenuous. As they well know, Boasberg was told only that Smith had subpoenaed information regarding phone numbers; he was not told the names behind the numbers, so he didn’t know these were congressional phone records. (Prosecutors do not need to articulate probable cause to subpoena phone records.) As just explained, it was standard operating procedure for the court to issue NDOs in such circumstances. Even if we assume for argument’s sake that, in issuing the NDO, Boasberg was making careful, case-specific findings, he would not have been finding that members of Congress might destroy evidence or intimidate witnesses; he was finding that, if the existence of the probe became known, the targets of the investigation (mainly Trump, who was under investigation for obstruction) might take such corrupt actions.
Moreover, to the extent the nondisclosure order was improper because a statute — Section 6628 of Title 2, U.S. Code — prohibits the issuance of one to providers of phone services to the Senate, the fault lies with Smith for failing to alert Boasberg of that provision. Again, Boasberg would not have known that the phone numbers were congressional phone numbers.
I’m all for impeaching judges over heinous abuses of power — just as Congress should impeach presidents or other high executive officials for similarly abusing their authorities. No judge should ever be impeached for a good faith misinterpretation of the law; getting the law right can be hard work, and very good lawyers often disagree on legal questions. Impeachment should be reserved for the exceedingly rare case when a judge’s abuse of authority or usurpation of power is so willful and blatant that a consensus can be built for convicting and removing the judge. It should not require establishing a crime such as bribery or fraud.
Still, whether we’re talking about a judge, a president, or any other top official, no one should be impeached based on mere partisanship or misrepresentation of facts. When those things happen, it is Congress that is guilty of a gross abuse of power.