This Judicial Complaint Could Have Been An Email

But it would still be missing the attachment.

The Justice Department lied in a judicial misconduct complaint against Chief Judge James Boasberg of the US District Court for the District of Columbia, referring to attached evidence that was not provided and may not even be in the possession of the DOJ.

The complaint, addressed to Chief Judge Sri Srinivasan of the DC Circuit, alleged that Judge Boasberg attempted to intimidate Chief Justice John Roberts at the March meeting of the Judicial Conference and made “improper public comments” about pending cases in violation of the Judicial Canon. The nastygram, signed by the AG’s chief of staff Chad Mizelle, was vague on the source of its information, simply dropping a footnote to “Attachment A at 16.” But no such attachment was included in the copy of the complaint slipped to reporters in July.

That missing attachment is the subject of a FOIA suit filed by Law and Chaos, and we can now exclusively confirm that no such copy was provided to Chief Judge Srinivasan either, according to a source familiar with the matter. And so far Judge Srinivasan has had no better luck kicking loose this attachment than we have. In short, the judiciary was provided zero evidence of Judge Boasberg’s supposed “improper public comments about President Donald J. Trump to the Chief Justice of the United States and other federal judges that have undermined the integrity and impartiality of the judiciary.”

This would suggest that the complaint was purely performative, lodged solely to discredit a jurist who has issued rulings adverse to the Trump administration. Under the guise of protecting the “integrity and impartiality of the judiciary,” the Trump administration is in fact working to undermine it.

Lies, damn lies, and The Federalist

The first reporting on Judge Boasberg’s comments at the Judicial Conference came from conservative propagandist Margot Cleveland at The Federalist, who affected outrage that “Judge Boasberg and his fellow D.C. District Court judges would discuss how a named Defendant in numerous pending lawsuits might respond to an adverse ruling.” She hyperventilated about “those judges’ clear disregard for the presumption of regularity — a presumption that requires a court to presume public officials properly discharged their official duties,” without informing her readers that the presumption is by custom, not statute, and can be abrogated when the government lies to courts. Which it has. And she indignantly insisted that the Trump administration abides by each and every court order. It hasn't.

Cleveland’s July 16 article referred to a “memorandum” in which “a member of the Judicial Conference summarized the March meeting.” Law and Chaos can report that this memorandum was compiled as minutes of the multi-day conference, distributed by the drafter, and released by a third party. Cleveland claims to have a copy of this memo, but the DOJ has been quite cagey. This raises the possibility that “Attachment A” to the DOJ’s letter is not the memorandum itself, but rather rightwing reporting on the document, either from Cleveland or from another outlet.

Free that information

On July 28, Law and Chaos’s parent company filed a FOIA request for “Attachment A” along with expedited processing, since this is a single document in the possession of the attorney general. There is no argument that the document, which appears to be generated by a member of the judiciary and given to the DOJ, is not an agency record subject to FOIA. And clearly this is a matter of public interest, since it was tweeted out by the AG herself and covered in every major newspaper in America.

And yet, the DOJ’s Office of Information Policy refused our request to expedite, claiming that it “cannot identify a particular urgency to inform the public about an actual or alleged federal government activity beyond the public’s right to know about government activities general.” Even more bizarrely, it informed us that it was assigning our request to the complex track, the proverbial “slow boat to China,” meaning we could be waiting years to get it. We appealed, noting that the search involves “one document maintained by one office” and “in the custody of the Office of the Attorney General, for which OIP processes all FOIA requests.” That appeal was rejected by Christina Troiani, Chief of Administrative Appeals, who stuck by the claim that asking for one document, recently on the desk of the AG, involves “a search for and collection of records from field offices or other separate offices, and thus your client’s request falls within ‘unusual circumstances.’”

And so we moved for partial summary judgment. As our attorney Kel McClanahan of National Security Counselors noted, this story is newsworthy because it reflects on the credibility of some branch of the government — although whether that branch is the judicial or executive is not obvious:

To be clear, this Court need not accept DOJ’s allegations about Chief Judge Boasberg as accurate; it need only accept that DOJ has stated them in a formal judicial filing and cannot retreat from them now when it is inconvenient. According to DOJ’s own words, the document requested by Law and Chaos clearly raises “possible questions about the government’s integrity which affect public confidence.” 28 C.F.R. § 16.5(e)(1)(iv). Moreover, this is doubly true if the Court considers DOJ’s allegations not to be accurate, because that would raise definite questions about DOJ’s integrity which affect public confidence. Either way, this case involves possible questions about some Government official’s integrity which affect public confidence, whether that Government official is a Chief Judge of a U.S. district court or the DOJ Chief of Staff.

Publicity stunts can backfire

It’s clear that the DOJ intended to fire off this supposed ethics complaint, win a news cycle, and move on. After publicly braying for Judge Boasberg’s impeachment, it couldn’t even be bothered to answer Judge Srinivasan’s follow up questions. And now it denies the hype AG Bondi herself fomented, claiming that this supposed threat to the integrity of the judiciary is a matter of no public interest.

This judicial complaint could have been a press release — and very clearly was. But that doesn’t make it immune from FOIA.

So cough it up, Pam. We’re waiting!