DOJ’s Frivolous Boasberg Complaint Dismissed—While Nobody Can Explain How DOJ Got The ‘Evidence’ It Never Provided

from the beclowning-continues dept

Back in August, we wrote about the Department of Justice’s unprecedented decision to file a judicial misconduct complaint against D.C. Chief Judge James Boasberg. The complaint, which Attorney General Pam Bondi tweeted about in what was itself likely a violation of the law governing such complaints, accused Boasberg of violating judicial ethics by… privately expressing concerns to other judges that the Trump administration might not comply with court orders.

Concerns that, as we noted at the time, turned out to be entirely justified.

Let’s back up and explain what happened. The DOJ’s complaint centered on comments Boasberg allegedly made at a private Judicial Conference meeting on March 11, 2025, where he supposedly “push[ed] a wholly unsolicited discussion about ‘concerns that the Administration would disregard rulings of federal courts, leading to a constitutional crisis.’” The complaint cited “Attachment A” as evidence of what Boasberg said.

There was just one small problem: the DOJ never actually provided Attachment A with the complaint. Actually, there were many, many problems, but we’ll get to those.

The complaint has now been fully resolved, and it went about as well for the DOJ as you might expect. Sixth Circuit Chief Judge Jeffrey Sutton, to whom Chief Justice Roberts transferred the complaint, dismissed it in a brusque seven-page ruling that reads like a judge who is deeply unimpressed with having his time wasted.

As court-watcher Steve Vladeck put it in his detailed breakdown of the ruling:

Chief Judge Sutton’s ruling is not just a tour de force in how a judicial ruling can persuasively give the back of its hand to a claim; it is, or at least ought to be, a humiliating smackdown for the Department of Justice—which bungled every single aspect of its misconduct complaint, from publicly announcing it to making spurious arguments about what the alleged misconduct actually was (the distinction between “public” and “private” really shouldn’t be hard, nor should the fact that March 11 is prior to March 15) to refusing to provide the very evidence on which the complaint purported to rest.

Vladeck also noted, in discussing how the DOJ never actually followed through on the steps it would obviously take if it were a legitimate complaint,that this proved how it was all political in the first place:

It turns out, it was never about adjudicating Boasberg’s behavior; it was about making splashy headlines and fueling right-wing attacks on the judiciary without regard to whether DOJ’s specious charges would withstand meaningful scrutiny.

Besmirching a long-time judge… for the memes.

The problems with the DOJ’s complaint were numerous, but let’s start with the most embarrassing one mentioned above: the DOJ never actually provided the evidence it claimed supported its accusations.

The Department identified one source of evidence, Attachment A, for the judge’s statement and for the setting in which it occurred. The complaint, however, did not include the attachment. The D.C. Circuit contacted the Department about the missing attachment and explained that, if it failed to submit the attachment, the circuit would consider the complaint as submitted. The Department did not supply the attachment.

In the absence of the attachment, the complaint offers no source for what, if anything, the subject judge said during the Conference, when he said it, whether he said it in response to a question, whether he said it during the Conference or at another meeting, and whether he expressed these concerns as his own or as those of other judges. Later in the complaint, to be sure, the Department refers to a Fox News clip discussing the same allegation. But it does not identify any source, contain any specifics, or answer any of the above questions. A recycling of unadorned allegations with no reference to a source does not corroborate them. And a repetition of uncorroborated statements rarely supplies a basis for a valid misconduct complaint

So the DOJ filed an unprecedented misconduct complaint against a sitting federal judge, made a huge public spectacle of it, and then when asked to actually produce the evidence supposedly supporting its claims… just didn’t. Vladeck’s assessment is appropriately blunt:

DOJ’s failure to produce Attachment A is, frankly, mind-boggling…

But even putting aside the DOJ’s failure to provide any actual evidence, Sutton methodically demolished every other theory in the complaint.

On the claim that Boasberg’s comments at the Judicial Conference were somehow improper, Sutton pointed out that this is literally what the Judicial Conference is for:

A key point of the Judicial Conference and the related meetings is to facilitate candid conversations about judicial administration among leaders of the federal judiciary about matters of common concern. In these settings, a judge’s expression of anxiety about executive-branch compliance with judicial orders, whether rightly feared or not, is not so far afield from customary topics at these meetings—judicial independence, judicial security, and inter-branch relations—as to violate the Codes of Judicial Conduct. Confirming the point, the Chief Justice’s 2024 year-end report raised general concerns about threats to judicial independence, security concerns for judges, and respect for court orders throughout American history

(For what it’s worth, as someone who had the privilege a couple years back of being invited to a judicial conference to give a talk, I can confirm firsthand that there were many fascinating informal conversations that occurred over the course of a few days among judges comparing notes and thinking through larger issues that might impact the judiciary).

On the DOJ’s claim that Boasberg’s comments constituted an improper “public comment” on a pending case, Sutton noted two rather obvious problems: the comments were private, not public, and the case the DOJ was concerned about hadn’t even been filed yet:

The alleged comment does not refer to a case, and the J.G.G. action was not filed until four days later: March 15, 2025. Because the judge did not refer to a case, that all but guarantees that his comments did not “violate[] Canon 3A(6), Canon 2A, or the Judicial–Conduct Rules.” In re Charges of Jud. Misconduct, 769 F.3d 762, 788 (D.C. Cir. 2014). The comment at any rate was not a “public” one, as it was made in a closed-door meeting in which the communications are off the record and confidential. The complaint, notably, does not claim that the judge made public what was said in private at the Conference or its related meetings.

As for the DOJ’s argument that Boasberg’s subsequent handling of the J.G.G. case (involving the shipping of Venezuelans to a Salvadoran concentration camp) somehow proved bias, Sutton wasn’t having that either. The complaint, he noted, “does not explain how a Supreme Court ruling about a prior action by the judge necessarily shows willful indifference when the judge addresses a distinct set of circumstances in a later ruling.”

Furthermore, Sutton points out that if the DOJ doesn’t like Boasberg’s rulings in a particular case, its remedy is… to appeal. Not claim misconduct:

When the executive branch’s deep convictions about the law meet the judicial branch’s deep convictions about the law in a trial court, the answer is to invoke the appellate process, not the misconduct process, to resolve the dispute.

And then, almost as an afterthought, Sutton reminded the DOJ that even if it had prevailed, the judicial misconduct process can’t do what the DOJ apparently wanted it to do:

To the extent the complaint asks that the underlying case be reassigned to another judge, that is not a form of relief available through the complaint process.

In other words:

1. the DOJ filed a complaint
2. that was based on misleading evidence
3. which it never produced
4. alleging misconduct that (even if true) wasn’t actually misconduct
5. propped up with claims of bias based on actions that occurred later
6. which could not be signs of bias, and finally
7. sought relief that wasn’t even available.

If the DOJ were capable of embarrassment, this would be the time for it.

In his initial post on the complaint last year when it was filed, Vladeck had noted that the entire complaint was supposed to be a warning to other judges to shut up about any concerns about the Trump admin. One hopes that this ruling by Judge Sutton will reverse that and embolden more judges to do what’s right.

But wait, there’s more.

Because we now have even more evidence of just how absurd this whole episode was, thanks to a FOIA lawsuit seeking the mysterious Attachment A that the DOJ never produced. And thanks to that lawsuit, we’ve learned something remarkable: neither the DOJ nor the judiciary can actually explain how the DOJ came to possess this document in the first place.

In a declaration filed in that case, DOJ Senior Counsel Vanessa Brinkmann reveals some truly remarkable details about this document that was supposedly central to the DOJ’s case against Boasberg. First, the DOJ confirms the document exists and describes what it is:

Upon initial review of the document identified in this action as “Attachment A,” OIP observed that the document is a memorandum that bears the markings of a United States Court, is authored by a Federal Judge, and discusses matters internal to the Judicial Conference of the United States.

So it’s a document created by the judiciary, for the judiciary, about internal judiciary matters. And what does the judiciary think about the DOJ having this document? They’re not happy:

AOUSC Counsel conveyed to OIP, in no uncertain terms, the Federal Judiciary’s strenuous objection to the Department’s release of “Attachment A.” AOUSC Counsel further articulated that “Attachment A” was created to be an internal Judiciary document, for a specific Judiciary audience, concerning confidential Judiciary matters and is not now, nor was it ever an Executive Branch document. In sum, AOUSC Counsel advised OIP that it is the position of the AOUSC that “Attachment A” remains under the control of the Judicial Branch, is confidential, and is not subject to disclosure pursuant to the FOIA.

But here’s where it gets really interesting. How did the DOJ get this internal judiciary document in the first place? Apparently, nobody knows:

AOUSC Counsel further stated that the Judiciary made efforts to identify how “Attachment A” ended up in the possession of the Department and has not been able to identify a source of transmission of “Attachment A” from within the Judiciary to the Department. AOUSC Counsel additionally articulated that the Judiciary did not officially transmit or authorize the transmission of “Attachment A” to the Department or any external recipient. Specifically, AOUSC Counsel explained that, given the privileged nature of the document, the Judicial Conference at large would be the only entity that could approve its official release, and that it is the view of the AOUSC that the document is not an Executive Branch record subject to FOIA disclosure, but rather, a judicial record that remains under the control of the Judicial Branch.

And the DOJ’s own investigation into how it acquired this document?

Searches conducted of DOJ leadership office officials’ Departmental email accounts using e-discovery software revealed no electronic trail indicating transmission of “Attachment A” into the Department, nor has OIP’s point of contact within OAG been able to identify how “Attachment A” was received by the Department.

So let’s recap again:

1. the DOJ filed an unprecedented judicial misconduct complaint against a sitting federal judge based on a document that
2. it never actually provided as evidence
3. was created by the judiciary for internal purposes
4. the judiciary never authorized to be shared with the DOJ, and
5. neither the DOJ nor the judiciary can explain how the DOJ obtained in the first place.

This is the same DOJ that Attorney General Bondi claimed was acting to protect “the integrity of the judiciary.”

All of this suggests that perhaps one of Vladeck’s theories for why the DOJ refused to hand over Attachment A may have some weight behind it. He theorized that either Attachment A doesn’t actually say what the DOJ claims or that they got it “through means that it’s unwilling to have to identify—even confidentially as part of the judicial misconduct process.” The declaration in the FOIA case would seem to bolster that last point.

As Vladeck notes, Sutton’s dismissal should be the final word on this matter:

The outcome here should be seen for what it is: how a sober-minded jurist actually views these charges, versus how they’re manipulated and broadcast by the Department of Justice and right-wing mouthpieces to serve partisan political ends.

As for the less sober-minded among the commentariat:

Anyone who continues to claim at this point that Chief Judge Boasberg has done anything worthy of further investigation and/or impeachment is telling on themselves.

But of course, that would require the people pushing this narrative to care about things like facts, evidence, and the rule of law. Based on the DOJ’s conduct in this case, that seems like a lot to ask.

Filed Under: attachment a, doj, james boasberg, jeffrey sutton, judicial complaint, pam bondi