▶ 0:18:23>> the committee is called to order. Today's hearing is on impeachment. Holding rogue judges accountable. The american republic begins with a simple and radical truth. All power originates with you. Before there is a congress, before there is a president, before there are courts, there is the sovereign citizen. The founders placed that principal on the very first line of our national charter.
▶ 0:18:54We, the people, of the united states, in order to form a more perfect union, do ordain and establish this constitution. They did not say we the judges, we the bureaucrats, we the elites. They said we the people. James madison wrote in federalist 49 that the people are the only legitimate fountain of power.
▶ 0:19:20Each senator in this room, every judge, every government official is merely a temporary vessel of the power vested in the citizenry. We exercise it under their watch, and when we betray that trust, the constitution empowers the people to cast us out of the offices we hold. That principle binds congress, established by article one of the constitution.
▶ 0:19:47Members of congress stand for election at regular intervals so that the people may withdraw their consent if we fail to honor their trust. It binds the executive, established by article two of the constitution. The president, far from being a sovereign, is answerable to the electorate every four years. The people who may renew his mandate or revoke it.
▶ 0:20:13The president can also be impeached. And this very same principle also binds the judiciary. Constituted by article three of the constitution. But solely by the mechanism of impeachment. Article three judges do not stand for election because the framers sought to shield judicial judgment from the temporary passions.
▶ 0:20:39Moreover, judges are given a generous standard of tenure, not as a princely privilege, but as a sacred trust to protect impartiality, but not to countenance misconduct. Because life tenure without accountability would be tyranny. He framers provided a constitutional answer.
▶ 0:21:06Judges employed good behavior tenure enforced by congress through impeachment. A judge who ceases to meet the standard of good behavior well ceases to hold office. As hamilton explained in federalist 81, impeachment, quote, is alone a complete security against the danger of judiciary encroachments. And judge's missed constructions of the will of the legislature.
▶ 0:21:36When hamilton identifies missed constructions of law as grounds for impeachment, he makes clear that the founders created impeachment to protect the government and the people from the wayward decisions of errant judges. But to grasp the full weight of that remedy, one must understand what the framers meant by impeachment. If impeachment were confined to ordinary crimes, it would serve merely a symbolic purpose.
▶ 0:22:00When a judge commits murder, or takes a bride, or defraud the public, he or she will be indicted, convicted and removed by a citizen jury. Because a man or woman in prison cannot sit on a federal bench. If criminality were the standard, impeachment would be a merely symbolic add-on to the criminal process. The framers rejected that narrow view. They knew that a republic requires two tribunals.
▶ 0:22:3212 hundred crimes and another to protect the constitution. A jury of citizens has the power to punish crimes like theft and bribery and murder and fraud. But only the senate speaking for the states and for the people can render a verdict on public officials for the sins that escape is statutory. Quiet betrayals. The abuses of power. The subtle subversion that may violate no criminal statute, and yet strike at the very architecture of our republic.
▶ 0:23:00That's why the constitution adopts the broader term, high crimes and misdemeanors, to describe the predicate offense required for impeachment. A phrase drawn from the english practice to denote bridge of trust, abuse of official authority, and dereliction of constitutional duty. As hamilton wrote in federalist 65, impeachable offenses are those offenses that involve quote, the abuse or violation of the public trust and injure society itself.
▶ 0:23:29And the historical record underscores that point. Criminal is conduct by federal judges has always been rare. Bribery, perjury, fraud. In those cases, impeachment merely hastened what was already inevitable. But rarer still, until now, where the deeper offenses the framers feared most.
▶ 0:23:50Judges who, without necessarily breaking criminal statute, violate the public trust, subvert the constitutional order, or wield their office in ways that injure society itself. That is why throughout history, congress recognized that teachable misconduct need not be criminal.
▶ 0:24:09In 1803, judge john pickering was removed for drunkenness, of mental deterioration, and unlawful rulings, conduct that rendered him incapable of faithful service. In 1936, judge how stead ritter was convicted for behavior that brought his court, quote, into scandal and disrepute. These cases are rare.
▶ 0:24:35But today, the same category of constitutional injury is before us again in the matter of two federal judges. Chief judge james bowes berg of the district court for the district of columbia and judge deborah boardman for the district court of the district of maryland.
▶ 0:24:54They used the authority of his office to authorize and then to conceal targeting members of congress, spying on the legislative branch and striking at the very heart of the constitutional speech and debate clause. No republic can survive if it's judges help opposition officials surveil the people's elected representatives.
▶ 0:25:17In his own words, judge bowes berg claims that he quote, finds reasonable grounds to believe that such disclosure will result in the destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation. Now, about whom is he speaking?
▶ 0:25:45He signed that order concerning nearly 20% of the republicans in the united states senate. He made a judicial finding that multiple members of this committee, quote, will result in the destruction or tampering of evidence. What basis did he have for that? He pointed at no evidence. The subpoenas were kept hidden from us, in violation of the law.
▶ 0:26:19Which was enacted back in 2004 and had been the law for 20 years. And we must view these in context. Judge boasberg approved the subpoenas at the same time the department of justice was driving a politically charged prosecution of president trump. An effort the voters themselves repudiated in last year's election. Since then it has come public that judge boasberg claims that he did not know who he was authorizing those subpoenas directed to.
▶ 0:26:50That doesn't make it better. It makes it worse. When you have a judge printing out findings that the target of a subpoena will destroy evidence, and he doesn't even know who the hell the target is, churning them out like placemats at a denny's. That is directly contrary to the judicial oath and to the rule of law.
▶ 0:27:20Now to judge deborah boardman. Judge deborah boardman's sentencing decision did not end with one defendant. It reverberated across the entire judiciary. She imposed a sentence of 22 years below the sentencing guidelines.
▶ 0:27:35On nicholas roski, a man who traveled, armed himself with a gun, a ,knife, duct tape, zip ties, and traveled across the country with the intent to assassinate justice brett kavanaugh and other supreme court justices. The sentencing disparity is massive. The department of justice corrected debts correctly recognize this as an act of domestic terrorism and sought a 30 year sentence.
▶ 0:28:05Judge boardman reduce the sentence by two decades. A sentence so drastically out of step with the gravity of the defense that it cannot be squared with any plausible understanding of the judicial duty and discretion. She did so, in her own explanation, because Mr. roski considered himself transgender.
▶ 0:28:31And because of that, instead of a 30 year sentence he would be sentenced to eight years for the crime of attempting to murder at least one supreme court justice. To put that into context, Mr. roski was 27 years old. In eight years, Mr. roski will be 35 years old. And if judge boardman's sentence maintains, will be released and available to threaten judges and law clerks on the supreme court and throughout the country.
▶ 0:29:00That is a gross dereliction of duty. For that reason today, I have sent a letter to the speaker of the house calling on the house to immediately advance the pending articles of impeachment against chief judge boasberg and judge boardman. Both of these judges I believe meet the standard for impeachment and for conviction and removal of office. And that is what this hearing today will address. With that I recognize ranking member senator whitehouse.
▶ 0:29:29Sen. Whitehouse: Thank you, chairman. Here are a few things that we know about calls for impeachment of judges. One, it is rare for a senator to call for a judge's impeachment. Because the senator would be a juror. But here we are.
▶ 0:29:53Sen. Whitehouse: Two, impeachment isn't a remedy for judges getting decisions wrong. Appeal is the remedy for that, as the chief justice has stated, and I offer as an exhibit, the news article reporting that statement by the chief justice.
▶ 0:30:10Chair Cruz: It will be admitted to the record without objection.
▶ 0:30:14Sen. Whitehouse: Impeachment is a remedy for actual misconduct, as was the case with the last judge he was impeached. So, when hearing about impeachig judges for misconduct, I thought maybe we would get answers about clarence thomas his taxes. -- paying his taxes.
▶ 0:30:39Sen. Whitehouse: We know justice thomas failed to disclose on his taxes more than a quarter of a million dollars of forgiven income on a loan. We know that people are prosecuted for tax violations and false statements. That conduct would break criminal statutes. Question.
▶ 0:31:03Sen. Whitehouse: If income was not reported, wasn't declared on a judicial disclosure report, whether it was reported or declared to tax authorities. I have asked this question and it has been a matter of public concern, yet thomas has offered no statement confirming any tax payment. Whether, when, and by whom his taxes on that income are paid, are all unanswered questions.
▶ 0:31:34Sen. Whitehouse: A simple answer is possible. Yes, I paid my taxes on that income come on this date, with these funds. No such statement came. Or, or, this hearing could have been about the campaign of threats under the shadow of which the federal judiciary is now operating. A threat posture facing the federal bench unlike any time in memory.
▶ 0:32:01Sen. Whitehouse: The threat campaign includes threats of impeachment that egg on other, more nefarious and dangerous threats. There is significant evidence of orchestration in the campaign of threats against federal judges.
▶ 0:32:16Sen. Whitehouse: Yet the marshall service and our maga doj have repeatedly refused to confirm they would investigate behind the utterer of a threat for orchestration or conspiracy or enterprise, or other forms of joint liability. Again, a very simple answer was possible. Yes, we investigate for orchestration of threats. No such statement came.
▶ 0:32:43Sen. Whitehouse: So instead of being a hearing about the campaign of threats against judges, is this an effort just to egg on even more threats against judges? It is telling that it targets chief judge boasberg, the chief federal judge in the district of columbia. Five years ago this week, president trump unleashed a violent mob on the U.S. capitol.
▶ 0:33:08Sen. Whitehouse: Chief judge boasberg offended maga by sentencing january 6 writers -- roiters. Maga world has declared no crimes happened that day. That's new. It was a violent terrorist attack on the capitol. Those who planned and participated in the violence that they should be massacred to the fullest extent of the law.
▶ 0:33:37Sen. Whitehouse: Senator hawley said those who attacked police and broke the law must be prosecuted. Chief judge boasberg also authorized temporary nondisclosure of requests for telephone toll records as part of the federal investigation into that days crimes. -- day's crimes. That is now regularly and falsely disclosed as wiretaps. People on this committee should know the difference between toll records and wiretaps.
▶ 0:34:09Sen. Whitehouse: Maga faults chief judge boasberg because it was republican senators whose records came up. That's investigation 101. People under investigation had called senators. That is why senator's toll records came up in the investigation. As jack smith testified, he did not choose those numbers, president trump did.
▶ 0:34:35Sen. Whitehouse: Moreover, chief judge boasberg would not have known whose records these were, as the administrative office of the courts has explained, at the time when prosecutors applied for these orders, they did not include identifying indications like names of account holders, nor did they disclose the government's underlying subpoena. That was standard operational practice. I offer the letter from the administrative office of the courts as another exhibit.
▶ 0:35:03Chair Cruz: It will be admitted to the record without objection.
▶ 0:35:06Sen. Whitehouse: So, the applications would not reveal whether a particular phone number belonged to a member of congress. Jack smith's house testimony confirmed that he did not provide that information to chief judge boasberg per doj's policy at the time. The administrative office of the courts also made clear that judges do not approve grand jury subpoenas, and smith's testimony of course confirmed that too.
▶ 0:35:34Sen. Whitehouse: So if chief judge boasberg didn't know whose toll records were subject of the nondisclosure orders and he did not approve the subpoenas, why do these attacks persist? Well, it appears that the grievances, the campaign if you will, against chief judge boasberg seems mostly to involve the maga doj.
▶ 0:35:58Sen. Whitehouse: First, when fbi director patel lied to us that he could not describe his own grand jury testimony, he blamed it on a court order from, quote, the D.C. district chief judge, who is chief judge boasberg. Boasberg exposed patel's ally in a civil proceeding saying patel could divulge the contents of his own testimony", nothing was preventing him from doing so before the committee.
▶ 0:36:25Sen. Whitehouse: So when patel came back he had to lie again to us that his grand jury testimony, given under immunity, after he had asserted fifth amendment rights ago -- against self-incrimination, had already been publicly released. That was not true either of course. Second, when doj wanted to illegally jet people in the dark out of the country to a salvadoran prison, chief judge boasberg was on duty and ordered that stopped. This infuriated the maga doj.
▶ 0:36:54Sen. Whitehouse: Then principal associate -- told doj lawyers that if courts stop these deportations, they would need to be ready to tell judges f-u, using the full four-letter word. Boasberg, obviously a very likely f-u target. In that matter, considerable evidence of contempt of court by doj caused boasberg to schedule contempt proceedings.
▶ 0:37:25Sen. Whitehouse: We don't know all the facts. But we do know that two trump judges on the D.C. circuits stepped in and blocked that contempt hearing with a very unusual for month-long administrative state. During which bovee, a subject of that doj contempt proceeding, was hustled through this committee onto the third circuit without any factual record from the contempt proceeding for the committee to see.
▶ 0:37:55Sen. Whitehouse: Bovee's judiciary hearing was so important to maga that bondi and blanche came over here to give the eyeball to colleagues present. After the full D.C. circuit judge cleared chief judge boasberg to resume his contempt proceedings examining bovee and doj, a handful of republican senators, within days, he was cleared friday and the letter fell monday, sent a letter to the D.C.
▶ 0:38:22Sen. Whitehouse: Circuit judge chief judge seeking judge boasberg's suspension pending impeachment proceedings against him by house republicans. Anything to stop the contempt proceeding into trump's maga doj. And now we have the chairman's letter. Adding to this, the maga a.g. Had filed a misconduct complaint against chief judge boasberg based on a private comment he allegedly made within the judicial conference.
▶ 0:38:51Sen. Whitehouse: The judicial conference is an administrative, not an adjudicative body, chaired by the chief justice whose proceedings are considered private. Here was the alleged offender,. Chief judge boasberg raised his colleagues concerned that the administer ration would disregard rulings of federal courts leading to a constitutional crisis.
▶ 0:39:15Sen. Whitehouse: The so-called ethics complaint looks like yet another strategic tactic to block that contempt proceeding. Wait and see. Then in the recent cr, republican senators retroactively made illegal chief judge boasberg's lawful authorization of those ndo's. Adding to the rhetorical heat. It gets worse.
▶ 0:39:43Sen. Whitehouse: In november, trump's personal lawyer, now maga's deputy attorney general, went before the federal society to urge war against certain federal judges. Ones who are, quote, repeat players, or quote, stop an entire operation or an entire administrative policy.
▶ 0:40:05Sen. Whitehouse: He did not say judge boasberg's name, yet at this hearing today, is not as coy. All of this looks very much like a maga-coordinated strategy to bring pressure and threats to bear on a federal judge, an environment in which violent threats are prevalent, and in which maga doj repeatedly
▶ 0:40:36Sen. Whitehouse: Refuses to assure us that proper investigative practices are being followed with regard to such threats. Presumably, the purpose is to scare judge boasberg off, or block him from examining contempt of court by maga's department of justice.
▶ 0:40:56Sen. Whitehouse: There was a time when I'd have hoped a senate judiciary subcommittee would not be roped into a scheme to amplify pressure and threats against a sitting federal judge. But here we are, in a hearing that specifically targets chief judge boasberg. And look who wields the gavel.
▶ 0:41:21Chair Cruz: There is an old line that when you have the law, you bang the law. When you have the facts, you bang the facts. When you have neither, you bang the table. We have just seen an example of that. We heard names like maga and trump repeated many times. I have been called many things but coy is not one of them.
▶ 0:41:44Chair Cruz: And I would note nowhere in the ranking's comments was one word about the orders that judge boasberg signed, the binding orders that concluded that he finds reasonable ground to believe that disclosing to the senators who were the target of the subpoenas will result in the destruction of or tampering of evidence, intimidation of potential witnesses, and serious jeopardy to the investigation.
▶ 0:42:10Chair Cruz: There is a reason he didn't say a word about it, because there is no evidence for a judge to conclude that 20% of the republicans in the senate would do that. And this is a judge who his actions indicate did not give a damn about actual evidence or the rule of law. Likewise, two words that were altogether absent from the ranking member's comments were deborah boardman.
▶ 0:42:35Chair Cruz: He gave a speech about violence directed at judges, not acknowledging that for four years the biden department of justice refused to enforce clear laws protecting judges from being intimidated at their homes because the biden department of justice agreed with that intimidation. And said not a word about this robe judge who deviated downward by 22 years to a psychopath who traveled across country with a gun and a knife and duct tape to murder justice brett kavanaugh.
▶ 0:43:04Chair Cruz: My democrat colleagues on this committee do not get to give great speeches about how opposed they are to violence against the judiciary, and at the same time cheer on a judge saying, well, if you attempt to murder a supreme court justice and you happen to be transgender, not a problem. We are going to deviate downward by more than two decades. Facts matter.
▶ 0:43:32Chair Cruz: I need not bang the table because I am happy to bang the facts and the law. Now, I would note that both chairman grassley and ranking member durbin asked to give opening statements. Chairman grassley has yielded his time instead to senator lee. And so I will recognize senator lee. Although I will give the ranking member an opportunity to respond if you would like.
▶ 0:44:02Sen. Whitehouse: We believe that senator durbin will be here and with respect to at least two of your points, I am not aware of anyone on our side of the committee who cheered on that sends or commented on it. So that is not a factual statement. And with respect to me not discussing the boasberg ndo, I stand by the administrative office of the court's letter which I put into the record, which explains the problematic nature of the allegations against him in that regard.
▶ 0:44:31Sen. Whitehouse: I continue to stand by the letter from the administer it if office of the charts.
▶ 0:44:35Chair Cruz: Senator kennedy.
▶ 0:44:38Sen: Kennedy: coy.
▶ 0:44:43Chair Cruz: Twice in one day.
▶ 0:44:46Se. Kennedy: After senator lee makes his remarks can be here from the witnesses?
▶ 0:44:52Chair Cruz: Unless senator durbin comes. In lieu of senator grassley I would note he has just gotten much younger and much better looking.
▶ 0:45:11Sen. Lee: Thank you for convening this subcommittee hearing on an important topic. This issue implicates a pretty significant role assigned to congress by the constitution, which is to determine under what circumstances action by a federal judge who might warrant that judge's impeachment and removal. Judicial impeachment is and should remain, should always be, something that, uh, we hope would be rare.
▶ 0:45:42Sen. Lee: The founding fathers granted life tenure for a reason, and that is to protect the independence of the federal judiciary. The point there is not to shield them in absolute terms from all accountability, but rather to protect their independence while also preserving a mechanism by which to address acts of significant wrongdoing.
▶ 0:46:07Sen. Lee: Article three itself guarantees that judges will hold their office for presumptive lifetime terms, but only during good behavior. When a judge disregards the rule of law, it undermines the separation of powers, endangers public officials, and otherwise accident manner that takes him or her outside the manner of good behavior described by the constitution.
▶ 0:46:38Sen. Lee: The constitution requires or at least contemplates that congress will take notes. In such circumstances congress may use impeachment and removal to restore constitutional balance and public trust. Our republic would be undermined, and some might argue it could not endure properly, if judges were allowed to flout legal authority or disregard and disrespect their judicial role. We've recently witnessed some troubling developments in these areas.
▶ 0:47:09Sen. Lee: One that I'll mention first is the attempted assassination of a sitting supreme court justice. On june 7, 2022, nicholas roski traveled all the way from california to the washington, D.C. metropolitan area carrying a gun, a knife, and some other equipment, all with the intent of murdering associate justice brett kavanaugh.
▶ 0:47:33Sen. Lee: From the airport, he went directly to justice kavanaugh's home, and abandoned his plan to murder justice kavanaugh only after observing the presence of law enforcement at the residence. Evidence showed that roski acted with intent to influence the court not just in the abstract but in a particular case then pending before the supreme court of the united states.
▶ 0:48:02Sen. Lee: Its decision in the dobbs matter. Motivated by anger over a draft opinion that had been unlawfully leaked to the press. Rosski pled guilty to the attempted assassination of justice kavanaugh. The justice department sought a sentence, a sentence consistent with federal statute inconsistent with the U.S. federal sentencing guidelines, 30 years to life.
▶ 0:48:32Sen. Lee: And the defense did not dispute that calculation. Nonetheless, judge boardman imposed a dramatically lower sentence of only eight years. At the sentencing, the judge emphasized personal circumstances including family considerations and concern about prison placement based on rosski's transgender identity.
▶ 0:48:57Sen. Lee: Minimizing the gravity of a crime intending to murder at least one supreme court justice to alter the course of one branch of government. Had rosski succeeded in what rosski had planned to do the stability of our constitutional system would have been greatly undermined in ways that I believe were calculated to send us into a constitutional crisis downward spiral.
▶ 0:49:23Sen. Lee: A crime warranting decades of imprisonment should not in those kind of circumstances warrant a mere eight year sentence. Judge boardman reasoned that the prospect of 10 years in prison -- which is not what she imposed, it was eight years, but the reason that a decade-long sentence would be sufficient to tear any irrational person from attempting such an attack, that
▶ 0:49:54Sen. Lee: Reflects a serious misunderstanding of history and of the unique circumstances presented by this case. Not to mention the apparent motivation of the defendant in that case. President trump was nearly assassinated not once, but twice in 2024. Just in the few months leading to the november 24 presidential election.
▶ 0:50:24Sen. Lee: Then charlie kirk was murdered a few months ago. Some cabinet members and some white house officials have been forced to move themselves and their families onto military bases just to protect them from violent threats. Then just this week, several windows in the private residence of vice president j.d. Vance in ohio were smashed during an attempted break-in of that residence.
▶ 0:50:51Sen. Lee: Thankfully, the vice president and his family were not at their ohio residents at the time this occurred. When a judge treats the ascent -- attempted assassination of a supreme court justice as an ordinary criminal case -- and I am not conceding here that that would have been appropriate in an ordinary case, but it certainly was not appropriate here.
▶ 0:51:13Sen. Lee: When that happens, particularly in a case like this one, it does raise pretty grave questions about judgment, about duty, about deterrence. Such extreme leniency in those circumstances accompanied by what can most generously be characterized as extreme naivete about the repercussions of these kinds of actions, risk encouraging others to use violence to influence the judiciary, especially at a time
▶ 0:51:44Sen. Lee: When politically motivated violence is rising. Meanwhile as senator cruz mentioned just a moment ago, you had protests occurring at the residences of individual supreme court justices. Throughout the biden administration, particularly in the wake of the dobbs opinion in 2022 in a few weeks before that the illegally leaked copy of it that inexplicably went unenforced, notwithstanding a prohibition in an existing federal statute.
▶ 0:52:14Sen. Lee: Then more recently, we've had other problems. And these should all be things that concern us. The second example I will point to today concerns judicial interference with the constitutional functions of congress, and to a degree, of the executive branch.
▶ 0:52:40Sen. Lee: Chief judge james boasberg of the district of columbia made some decisions that affected congressional oversight in a meaningful way by imposing secret gag orders on telecom providers.
▶ 0:52:58Sen. Lee: Despite a long-standing federal requirement demanding notice to members of congress under circumstances in which their telephone data has been requested, has been subpoenaed.
▶ 0:53:16Sen. Lee: Now, these gag orders were required private parties to facilitate what many have fairly characterized as politically motivated actions taken by the biden department of justice against certain members of congress. More recently, judge boasberg issued an order intruding into a meeting involving a cabinet secretary and a federal appellate judge and senior justice department leadership. Again, raising serious separation of powers concerns.
▶ 0:53:47Sen. Lee: These matters are not mere garden-variety day-to-day disagreements over judicial philosophy, or statutory interpretation. There are a lot of different opinions on this committee and on this subcommittee on those matters, on how best to interpret a federal statute, on how best to ascertain the meaning of a federal statute, the importance to attach, for example, to the original public understanding of tax at the time of its and that -- enactment.
▶ 0:54:18Sen. Lee: That is not what we are talking about here. These things we are talking about here involves something much more fundamental. They involve the misuse of judicial authority, what alexander hamilton described as the abuse or violation of some public trust. Such misconduct, hamilton explained, constitutes an entry to society itself, to our constitutional order itself.
▶ 0:54:42Sen. Lee: Congress does not approach judicial impeachment or any kind of impeachment likely, nor should it ever, of thousands of federal judges only 15 have been impeached and only eight of those convicted. But abuse of official power has always been recognized as impeachable. And under appropriate circumstances when the senate finds it, removable.
▶ 0:55:07Sen. Lee: When a judge disregards 17 norms in the face of an attack on the supreme court or repeatedly interferes with the lawful functioning of congress in the executive, these are not routine errors. Arising out of some good faith and genuine disagreement as to statutory construction or otherwise. These are not things that can simply be corrected on appeal on a case-by-case basis.
▶ 0:55:34Sen. Lee: That preaches the public trust and has the ability to circumvent the constitutional order and they demand congressional scrutiny. I look forward to our witness's testimony. Thank you.
▶ 0:55:47Sen. Whitehouse: Ranking member durbin is running late. I would ask consent that the following additional documents be entered into the record. One is a statement by the article three coalition of retired districts and circuit judges denouncing inappropriate calls to impeach judges for the decisions.
▶ 0:56:08Sen. Whitehouse: Second is a statement by the american bar association from its president denouncing inappropriate calls to impeach judges for their decisions. The next is a statement by professor michael gerhardt, a leading impeachment effort, on the lack of any historical or legal basis to impeach federal judges for their decisions.
▶ 0:56:31Sen. Whitehouse: Next is a statement by the article three coalition on inappropriateness of deputy attorney general blanche's comments regarding going to war against federal judges. Next is a statement by citizens for responsibility of ethics in washington on the inappropriate campaign to intimidate judges. And last is a statement by judge michael looted regarding this proceeding, whose punchline is to describe professor luther 's testimony is contemptible.
▶ 0:56:59Chair Cruz: Without objection all the statements will be admitted.
▶ 0:57:04Sen. Kennedy: I would like to submit a statement that kennedy would like to hear the witnesses.
▶ 0:57:09Chair Cruz: Without objection that will be submitted as well. I am going to introduce each witnesses and recognize them for their opening statements. As senator whitehouse noted, when ranking member durbin arives, he can have his opening statement. Rob luther serves as professor of law at the antonin scalia law school at george mason university. In his career, professor luther has served at high levels in all three branches of the federal government and is the founder of constitutional solutions pllc.
▶ 0:57:41Chair Cruz: Immediately before joining the scalia law faculty, professor luther spent over five years in the washington, D.C. office of jones day. Before that he served as associate counsel to the president of the united states and the white house counsel's office. In the white house he co-managed the judicial's process and supervise preparation of over 150 federal judicial nominees for their successful U.S. senate confirmation hearings. Before joining the white house, professor luther served as counsel to then U.S. senator jeff sessions on the U.S.
▶ 0:58:09Chair Cruz: Senate judiciary committee. Professor luther was also a law clerk to judge daniel manion of the U.S. court of appeals for the seventh circuit. Our second witness is professor stephen vladeck. Professor vladeck is professor of law at georgetown university law center and as an expert on the federal courts, the supreme court, national security law and military justice.
▶ 0:58:32Chair Cruz: Professor vladeck is the author of a new york times best selling book and a co-author of a leading national security law and counterterrorism law casebooks. Professor vladeck is a highly regarded appellate advocate having argued before the U.S. supreme court and numerous lower federal civilian and military courts. Professor vladeck is on cnn's supreme court analyst and editor and author of one first, a weekly newsletter about the supreme court.
▶ 0:59:00Chair Cruz: Professor vladeck graduated from the yale law school in 2004, a sin for which I suppose we can forget him. After law school he clerked for the honorable marcia s burrs on of the U.S. court of appeals for the ninth circuit and the honorable rosemary bark at of the U.S. court of appeals for the 11th circuit. Our final witness is Mr. will chamberlain, who currently serves as senior counsel at the article three project.
▶ 0:59:24Chair Cruz: Will graduated from the university of the pacific in 2010 with a ba in economics and received his jd magna cum laude from the georgetown university law center in 2015. After graduating georgetown university law center, he joined quinn emanuel urquhart and sullivan in los angeles as an associate where he practiced complex commercial litigation. He later worked as an attorney at the competitive enterprise institute focusing on class action litigation.
▶ 0:59:49Chair Cruz: In 2019, he revived human events, the nation's oldest conservative magazine where he served as publisher and editor in chief. Professor luther, you are recognized for your opening remarks.
▶ 1:00:01Mr. Luther: Chairman cruz, ranking member white house, members of the subcommittee, thank you for this opportunity to testify about the history of judicial impeachment with an eye towards whether recent conduct by federal judges warrants any action from congress. Impeachment is an article one response to misconduct terminal or noncriminal necessary to preserve the impartial administration of justice.
▶ 1:00:25Mr. Luther: In federalist 65 alexander hamilton defines impeachable offenses as those done to society itself by the misconduct of public men. Hamilton stressed congress is the impeaching body must be given broad discretion in that determination. When the constitution was ratified it did not defy impeachment expressly but we know from its text that the households that power to impeach an the senate holds the power to convict with a two thirds vote, that judges hold their offices during good behavior and that judges shall be removed from office if it impeached for high crimes and misdemeanors.
▶ 1:00:57Mr. Luther: What standards should govern your votes? While standards for impeachment are deliberately flexible, precedents for member's of congress have applied them to provide valuable historical context for those concerned with integrity and consistency. Of the thousands of federal judges confirmed by this body and also appointed by the president only 15 have been impeached by the house with only eight here.
▶ 1:01:19Mr. Luther: There is something of a modern misconception for hasps drawn from article to his high crimes and misdemeanors language that congress may only impeach a judge for traditional conduct such as perjury or tax evasion but not for their conduct on the bench. It's easy to understand this modern misconception because the last seven judicial impeachment stating back in 1933 has followed this trend. But this trend is not the rule. To the contrary, the majority of impeachment from the founding until the 1920's involved abuses of power flowing from judicial conduct on the bench.
▶ 1:01:50Mr. Luther: Consider these precedents. In 1804 it justice was impeached by the house. Charges included revealing his interpretation of the lobby for defense counsel could be heard and failing to comply with state law regarding the arrest and confinement of the defendant. Majority of senators found justice jay's guilty on three of the eight charges but did not secure the necessary two thirds vote conferring age. In 1830, judge peck and in 1904 judge swing were impeached for abusing contempt power and aspiring attorneys without cause.
▶ 1:02:20Mr. Luther: Both were acquitted by the senate. In 1926, judge george english was impeached by the house on charge of abuse of power and financial impropriety. Amongst his offenses he summoned to several government officials to appear before him in an imaginary case and berated them with profanity. Before his impeachment trial, judge english resigned from the bench. So without a doubt, a the house has impeached judges who have abused their power on the bench.
▶ 1:02:45Mr. Luther: Turning to the recent conduct of chief judge boasberg, when I first read about judge english resigning after summoning governing officials in an imaginary case, both arctic frost and judge boasberg's thirsty contempt proceedings came to mind. This bipartisan body passed a law that imposed an affirmative obligation on telecom service providers to notify members of congress when the records are subpoenaed.
▶ 1:03:12Mr. Luther: It explicitly -- inexplicably it was ignored when jack smith sought your phone records and judge boasberg entered a secret three cents gag order that denied many of you the process required by the law and the protections of the speech and debate clause of the constitution. Unfortunately, jack smith went fishing and judge boasberg handed him a reel.
▶ 1:03:31Mr. Luther: Judge boasberg will surely dispute this characterization by citing jack smith's house judiciary committee testimony where the former special counsel appears to confess that his team did not notify judge boasberg that congressional republicans were subjects of the gag order. But even if true, one must ask on what basis judge boasberg found that the disclosure of subpoenas, quote, would result in destruction of or tampering of evidence, intimidation of potential witnesses, and cause serious jeopardy to the investigation.
▶ 1:04:00Mr. Luther: Did judge boasberg merely rubberstamped the requested gag order, or was he willfully blind to the identity of those subpoenaed? Equally troubling is judge boasberg's failure to enter show cause order for smith for withholding your identities. Smith had a duty not to ask for an order that violated 6628, yet he did so. Judge boasberg had a duty to make sure his gag order could be lawfully entered, yet he failed to do so. Both owe this can be an explanation.
▶ 1:04:27Mr. Luther: Judge boasberg's failure to require smith to show cause of the special counsel office is mixed conduct proves particularly troubling when contrasted with his behavior in the second imaginary case he handled, jgb versus trump. That case involved petitioners who sought habeas release from judge boasberg even though they were not physically within the court's jurisdiction. Undeterred, judge boasberg decided to pursue content proceedings, finding there was probable cause the trump administration violated his tro.
▶ 1:04:55Mr. Luther: Here the imaginary case language again resonates as judge boasberg has continuously imagined he ordered something he had in fact not ordered. Yet judge boasberg's abuse of power extends further still. In late november he entered an order demanding the unprecedented public disclosure of an executive branch meeting between a cabinet official, a recently confirmed federal appellate judge, and the second highest ranking official at the justice department. The D.C. circuit judge not only stayed judge boasberg's order, it has directed briefing to state a legal basis.
▶ 1:05:25Mr. Luther: Not only has judge boasberg seeking to interfere with the executive branch's operations through the content proceeding, two weeks ago he ruled the trump administration must either facilitate the return of illegal alien gangsters, or provide due process for them in venezuela. These latest intrusions into the coordinate branches called him on the old adage that a mistake repeated more than once is a choice. Well, you too may have a choice.
▶ 1:05:49Mr. Luther: Judge boasberg's contempt for the separation of powers fits not only comfortably within the impeachment standards described by hamilton and the presidents reference below, he deserves a unique category of his own. Professor jonathan turley observes in relation to the secret subpoenas, it is difficult to overstate the gravity of this inclusion to the legislative branch.
▶ 1:06:10Mr. Luther: The cloak of judicial independence does not shroud a judge from accountability, before this body or the public, or facilitating violations of the constitution federal statutory law, and abusing monroe -- members of this body and for pursuing eventual contempt expedition into the highest echelon of our national security officials, judge boasberg must be held accountable. I welcome your questions.
▶ 1:06:29Chair Cruz: Thank you professor luther. I now recognize professor vladeck.
▶ 1:06:34Mr. Vladeck: Thank you. Thank you for the invitation to testify today. Judicial accountability is the subject in which I have long held a deep and abiding interest and I would have welcomed an opportunity to explore with you how this subcommittee can better promote it across the entire federal judiciary, including the supreme court.
▶ 1:06:55Mr. Vladeck: Unfortunately today's hearing is focused on something else altogether, calls to impeached two highly regarded federal district judges all because some members of the subcommittee and my fellow witnesses disagree with some of the rulings. As someone who spends a lot of time disagreeing with judicial decisions, I can certainly relate to that impulse. But I respectfully submit the subcommittee's efforts here are deeply misguided for at least three reasons.
▶ 1:07:17Mr. Vladeck: First as we have already heard today, impeachment has not been, is not, and should never be a remedy for rulings in which some or even many of us disagree, even when one tries to characterize those disagreements as a separation of powers violation. Rather, as senator whitehouse already introduced into the record, chief justice roberts reminded us just this march that the normal appellate process exists for that purpose and is -- and is indeed well underway in the case arising from judge boasberg's courtroom.
▶ 1:07:46Mr. Vladeck: Since the acquittal of dust -- no one has been impeached for the substance or the rulings or claims of partisan bias are based on assertions they were somehow rogue or activists, whatever those deliberately standardless descriptors are supposed to mean. It is not just that we have not impeached judges because of disagreement with the rulings. It is that we should not.
▶ 1:08:11Mr. Vladeck: If judges and justices could be impeached for no reason other than those kinds of disagreements, then the judicial independence enshrined in article three, and which has been extolled by members of the committee already this afternoon, would not mean very much. That principle applies even when there is a consensus that the judges errored in elven cases. It applies to cases like the ones issued today in which no such consensus exists.
▶ 1:08:36Mr. Vladeck: And in which one must radically distort and estate the factual record and/or legal authorities included and described in the very real cases about very real people as imaginary to even attempt to identify the type of misconduct here that has historically been impeachable. Second, it is not just that impeachment should not be a remedy -- it is that now is an especially dangerous moment for this subcommittee to be suggesting otherwise.
▶ 1:09:05Mr. Vladeck: As we are seeing unprecedented attacks and threats against many of these same judges from senior executive branch officials. For the impeachment of specific judges, white house deputy chief of staff stephen miller claiming any jewel -- judge rules against this administration is part of a judicial intervention. Attorney general bondi filing a frivolous misconduct complaint against chief judge boasberg.
▶ 1:09:28Mr. Vladeck: And deputy attorney general blanche's remarkable remarks repeatedly suggesting that his department is quote, at war, not just with a handful of judges but with the federal courts. These attacks are not happening because all of a sudden hundreds of federal judges have lost their minds.
▶ 1:09:47Mr. Vladeck: They are happening because far more than any other government institution, including I regret to say, this subcommittee, it has been these same federal judges who have done the most over the past 11 months to hold the executive branch accountable to the law. My written testimony cites the data but suffice it to say that the hundreds of rulings against the trump administration have come from a remarkably large number of ideologically and geographically diverse federal judges, including dozens appointed by president trump.
▶ 1:10:16Mr. Vladeck: The point is not that this volume includes any or all of these rulings are collected -- correct. Rather, accountability should be a two-way street. When so many different federal judges are enforcing the constitution and statutes passed by congress against the executive branch, it seems to me that the subcommittee should be doing everything it can to support them. Holding this hearing is literally the opposite of that.
▶ 1:10:40Mr. Vladeck: After all, it is not just that these kind of attacks erode public faith in the courts, is they provoke very real and serious physical threats against the judges themselves, threats this subcommittee used to take seriously. As chief justice roberts warned a year ago, public officials certainly have the right to put assize the rights of the judiciary but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others. The same can be said I fear of much of what has already been said this afternoon and much of what I suspect is to come.
▶ 1:11:12Mr. Vladeck: Finally, lest there be any doubt on this point, it is not my view that judges or justices should be immune from criticism. I would be out of a job if it. Were otherwise. I fully agree that in for an criticism to -- results in a better informed policy in a more robust democracy.
▶ 1:11:31Mr. Vladeck: It seems to be at the very least worth articulating and doing our best to hue to a line between the type of substantive informed criticism of judges and judicial decisions to which the chief justice was referring, and attacks that are light on analysis and are instead focused either on ambiguous and untestable innuendo, or easily rebuttable at homonyms. I harbor no allusion that I have perfectly respected this line throughout my career but I have aspired to do so.
▶ 1:11:57Mr. Vladeck: Whatever you might think of my work in this regard, the subcommittee should be striving to do the same. Thank you again and I welcome your questions.
▶ 1:12:03Chair Cruz: Thank you professor vladeck. I recognize Mr. chamberlain for your opening statement.
▶ 1:12:09Mr. Chamberlain: Thank you for the opportunity to testify today. On june 7 20 22 nicholas rosski flew from his home in california to washington dulles airport. His suitcase contained a gun, knife and other clement that would help plans to assassinate supreme court justice brett kavanaugh. After arriving at dulles he took a taxi directly to justice kavanaugh's home. Only upon noticing the presence of law enforcement did he realize his plan was futile and give up,: 911 and allowing himself to be detained.
▶ 1:12:42Mr. Chamberlain: He pled guilty without a plea agreement of violating 18 united states code section 351 see for attempting to assassinate supreme court justice. There was no dispute as to the proper application of the united states sentencing guidelines in this case. Doj and Mr. roske's attorneys agreed the sentencing range was 30 years to life.
▶ 1:12:58Mr. Chamberlain: Yet despite the reprehensible nature of his conduct and the threat opposed to our republic, judge deborah boardman sentenced him to just -- judge boardman described herself as heartened at how this terrible offense had drawn the family closer and help them understand her mental health struggles and accept her for who she is.
▶ 1:13:22Mr. Chamberlain: When she weighed how much additional incarceration was sufficient but -- apparently judge boardman saw her role as family therapist healing the wounds of the family and protect -- judge boardman further stated that quote, no no rational actor which used to commit a crime like this if it would strip them
▶ 1:13:52Mr. Chamberlain: Of their freedom, ostracized him from society and separate them from their family for 10 years. This shows a bewildering lack of historical understanding. Political assassination's have been with us for thousands of years. Four sitting presidents have been assassinated. The assassination of archduke ferdinand and, of course, my good friend, our good friend conservative activist charlie kirk was assassinated less than three months ago.
▶ 1:14:22Mr. Chamberlain: History tells us that evil, yet rational human beings will commit inhuman acts, sacrificing their lives or their liberty in the process if they believe they can effectuate political change. Nicholas roske was no different in this respect to thomas crooks, ryan routh, tyler robinson, gavrilo princip, or john wilkes booth. And congress must have certainly understood this when it sought to impose the maximum penalty on assassination which judge boardman blithely ignored when she declared that a sentence of roughly 10 years was sufficient to deter would-be assassins.
▶ 1:14:47Mr. Chamberlain: Impeachments of judges are relatively rare throughout our nation's history, to insulate the judicial process from politics and protect the rule of law. Judge boardman's case, however, is the rare one where a judicial impeachment would vindicate the integrity of the judiciary and protect judges from improper influence. Nicholas roske tried and failed to assassinate justice kavanaugh. The evidence presented at sentencing demonstrated that he did so because he wanted to change the supreme court's jurisprudence on abortion. Judge boardman's slap on the wrist for Mr. roske, if left to stand, will only encourage others upset with judicial decisions to try similar tactics.
▶ 1:15:17Mr. Chamberlain: The danger is not hypothetical. President trump was an inch away from being murdered on live television. Charlie kirk is dead. A number of prominent cabinet members and senior white house officials have been forced to move their families on to military bases to protect them from violent threats. Professor frank bowman has explained that “a single act of sufficient gravity that inflicts sufficient damage on constitutional order” can constitute an impeachable offense when it “subverts [the] separation of powers or undermines judicial independence." that is the best way to understand why judge boardman
▶ 1:15:48Mr. Chamberlain: Should be impeached. Nicholas roske's crime was no ordinary attempted murder, it was the attempted assassination of a supreme court justice of the united states. There can be no graver attack on our constitutional order or on the independence of federal judges. Judge boardman's garden-variety sentence of just 97 months ratified Mr. roske's conduct as a garden-variety federal crime. That one grave, destructive act is sufficient to justify her impeachment. Thanks for the opportunity to testify.
▶ 1:16:12Chair Cruz: Thank you.
▶ 1:16:16Sen. Whitehouse: As we turned to renting member driven, mary asked consent the and article of a name be submitted.
▶ 1:16:28Chair Cruz: Without objection, it will be added to the record. Ranking member durbin.
▶ 1:16:32Sen. Dubrbin: Thank you. Sorry I am like to attend this meeting, but it is an important one. I will make this statement and take my turn asking questions. I understand republican colleagues are upset that jack smith issued subpoenas for the phone records of several republican senators who president trump tried to conscripting his conspiracy to overturn the results of the 2020 election.
▶ 1:17:01Sen. Dubrbin: If my republican colleagues are concerned about this, they should call special counsel smith to testify under oath before the committee in an open hearing. As he has repeatedly offered to do so. Democrats have proffered him as a witness before this committee. Repeatedly, the republican majority will not allow him to testify in public under oath. Indeed, Mr. smith testified under oath about his actions in a closed-door deposition in the house judiciary committee.
▶ 1:17:28Sen. Dubrbin: Here is what he said about why those records were subpoenaed, and I quote him. Donald trump directed his co-conspirators to call those people to delay the proceedings. He chose to do that. If donald trump had chosen to call a number of democratic centers, I did not choose those members. President trump did. Thank you, Mr. chairman.
▶ 1:17:53Chair Cruz: Thank you, ranking member. Now I will ask each of the witnesses to stand and raise your right hand for the oath. Do swear the testimony were about to give before the subcommittee is the truth, the whole truth, and nothing but the truth, so help you god?
▶ 1:18:19Chair Cruz: And ordinarily I would have done that before your opening statement, but hopefully you were truthful in those as well. Let's start with judge boasberg. Professor luther, is it consistent with the judge's oath of office to sign an order for which there is zero basis in law and zero basis in fact?
▶ 1:18:41Mr. Luther: Absolutely not.
▶ 1:18:43Chair Cruz: Is it consistent with a judge's oath to do whatever a prosecutor asks him without inquiring as to the facts or the law?
▶ 1:18:53Mr. Luther: It is completely inconsistent.
▶ 1:18:56Chair Cruz: Judge boasberg signed multiple orders. I am holding one of them in my hands. That is his signature at the bottom. Ordering the phone companies who had been subpoenaed not to disclose to numbers of the senate or house that their phone records had been subpoenaed. As you noted in your testimony, that order is directly contrary to federal statute. Congress in 2004 made it illegal for a phone company to disclose a senator's phone records without notifying the senator in question.
▶ 1:19:27Chair Cruz: Is there any basis for a judge to disregard unambiguous federal statutory language?
▶ 1:19:34Mr. Luther: Absolutely not.
▶ 1:19:35Chair Cruz: Judge boasberg signed an order that said "the court finds reasonable grounds to believe that such disclosure" in other words informing the senators their phone records had been subpoenaed "will result in the destruction of or tampering with evidence, intimidation of potential witnesses, and serious jeopardy for the investigation." is there any conceivable basis for judge boasberg signing that
▶ 1:20:06Chair Cruz: Particularly given jack smith's testimony now that judge boasberg had no idea whose phone records he was signing off on?
▶ 1:20:13Mr. Luther: I have been struggling for the last few weeks to come up with one, but I can't. I will mention we would not know about this if not for chairman grassley's oversight efforts.
▶ 1:20:23Chair Cruz: That is true. Professor vladeck, you suggested the remedy for an erroneous decision is appeal. Judge boasberg signed a secret nondisclosure order that was ex parte with only the department of justice in front of him. Is there any conceivable universe in which anyone could appeal that?
▶ 1:20:41Mr. Vladeck: So, senator, as you know, there are circumstances with which the provider can decline to comply. I believe that is part of the record as well. And those orders are themselves also subject to challenge in court. Now, senator, you and I have had this conversation for a long time about how there are lots of gaps in federal law when it comes to the targets of surveillance.
▶ 1:21:06Chair Cruz: Did the targets of surveillance know about this?
▶ 1:21:09Mr. Vladeck: No.
▶ 1:21:10Chair Cruz: Could the senators whose records were subpoenaed contrary to federal law appeal it?
▶ 1:21:16Mr. Vladeck: No, but of course judge boasberg did not know first these were senators.
▶ 1:21:20Chair Cruz: Professor vladeck, nor did he inquire. In fact, going back to professor luther's statement because in ordinary circumstances, a judge entering an order who he doesn't know who is applying to, does not know any facts, does not know anything, there is zero basis in fact. But there is an explanation for why he did so. Because judge boasberg did know one thing.
▶ 1:21:47Chair Cruz: Jack smith was a partisan democrat engaged in going after president trump and subpoenaed nearly 400 republicans. So the one thing he knew was all of these targets were republicans. So the only conceivable basis for judge boasberg signing these orders one after another is an animus that says every republican on planet earth, every american who voted for donald trump, there is reasonable basis to believe they are criminals.
▶ 1:22:10Mr. Vladeck: Senator.
▶ 1:22:11Chair Cruz: I am done with your question.
▶ 1:22:13Mr. Vladeck: Sorry.
▶ 1:22:14Chair Cruz: There is no other basis for him signing his order. He knew ■that. He knew jack smith. Welcome to the fast food counter at mcdonald's. Whatever you want, all the fries you want. I will sign. Ordered, ordered, ordered. That is perfectly fine if you are the chairman of the dnc. Being a partisan hack or for that matter the chairman of the rnc. Either site can be partisan hacks. Judges are expected not to be.
▶ 1:22:43Chair Cruz: And I would point out this is a pattern we have seen before for four years during the biden doj. We saw the department of justice refuse to enforce the law when violent protesters were outside the forms of supreme court justices -- the homes of supreme court justices. It was a felony on national television being committed over and over and over again. Merrick garland, a road partisan attorney general, refused to enforce the law. Why?
▶ 1:23:12Chair Cruz: Because he supported the objectives of the protesters. That kind of hypocrisy -- let me be clear. I would object to an order that found democrat members of the senate absent real and meaningful evidence were likely to be criminals. That is what judge boasberg signed off on. By the way, judge boardman -- Mr.
▶ 1:23:33Chair Cruz: Chamberlain, what are the consequences of a partisan left wing judge concluding because of my ideology coming to attempt to assassinate a supreme court justice is ok. I will give you a slap on the wrist, will deviate down 22 years, and release you when you are 35 years old so you can terrify other judges. What are the consequences of that?
▶ 1:24:01Mr. Chamberlain: Potentially devastating to the republic getting encourage others to try assassinations. You have to think through what the consequent's would be of other success assassinations. We get to a world of something like spain in world war ii, algeria.
▶ 1:24:21Chair Cruz: And I'm going to recognize in a moment ranking member whitehouse. I will make a prediction of my democrat colleagues that we are going to go through this hearing without any of them talking about judge boardman. They would rather scream about trump and maga. Boasberg they can wrap into we dislike trump. But like but l my democrat colleagues want to claim they are against judicial violence. Let me be clear.
▶ 1:24:50Chair Cruz: If anyone tries to assassinate a judge, even a left wing judge with whom I would disagree with, I would want to lock them up as long as they are breathing on planet earth. Unfortunately, I have not heard any of my democrat colleagues be willing to express the same sentiment.
▶ 1:25:07Sen. Whitehouse: Pretty that the same principle does not apply to the capitol police officers who defended us five years ago yesterday. With respect to -- let me just summarize the administered office of the court's order because some of the things that chairman has said are not quite accurate.
▶ 1:25:27Sen. Whitehouse: First of all, it was standard operating procedure not to disclose the names associated with toll records when the toll records were sought by the government under doj's, both democrat and republican. In fact, it was the trump one doj that did this with respect to house members. It was the biden doj that fixed this problem to require that the disclosure now be made.
▶ 1:25:56Sen. Whitehouse: And the suggestion that the basis for the need for a nondisclosure order would be the conduct of the recipient of the person whose toll records were obtained has been fairly well reelected by jack smith in his sworn testimony in the house where he pointed out that the basis for that order was the pattern and practice of trump
▶ 1:26:29Sen. Whitehouse: Associates putting improper pressure to bear to intimidate witnesses over and over and over again. The fault lay in the conspiracy. Not in the subjects of the toll records request. Professor vladeck, we have talked.
▶ 1:26:50Sen. Whitehouse: I think there is a pretty good fault line here between adjudicate of decisions to remedy his appeal and personal or administered of misconduct that traditionally forms the basis for an impeachment. On which side of that line with the failure to declare or pay personal income taxes fall?
▶ 1:27:12Mr. Vladeck: Yeah, I think that is certainly on the personal side of that, senator.
▶ 1:27:17Sen. Whitehouse: That would be personal misconduct on the side that impeachment would likely cover. And we still don't know the answers to those questions, which to me is quite surprising. Is it not also true that regular citizens have been prosecuted and convicted for failing to report income and pay associated taxes?
▶ 1:27:41Mr. Vladeck: Fairly regularly to my understanding, senator.
▶ 1:27:45Sen. Whitehouse: And if we look at this question of threats which is the context, for a great deal of what we are hearing today, it appears to me, it appears to judges who have spoken out to us in fact that there is a pattern of threat, an unprecedented pattern of threat that has arisen during this administration with as you point out judges who have been appointed by all presidents who
▶ 1:28:17Sen. Whitehouse: Have surviving appointees. And it is not just the threat that is part of it. It is also what the judges are saying about the department of justice and its lawyers. So back to the maga doj, just summarizing some of the words that have been used about their arguments and behavior in court. Disingenuous arguments five times. Bad faith arguments five times.
▶ 1:28:45Sen. Whitehouse: Unprecedented behavior, including "concerted effort by the executive to smear and impugn individual judges who rule against it being both unprecedented and unfortunate." that is a trump appointee speaking about this administration's behavior. Shoddy work three times.
▶ 1:29:05Sen. Whitehouse: Doj looting credibility or being disrespectful, having lied, willful and intentional noncompliance with orders, unconscionable arguments, nonsensical arguments. In that environment, what then comes into play -- I will let you pick it up from here.
▶ 1:29:28Sen. Whitehouse: How many senior people in the administration have made threats against judges, both generally and specifically, from the president on down? When they make a decision disagreeing with them.
▶ 1:29:43Mr. Vladeck: The number I can think of is five, senator. But there is probably more. That has just been what is widely reported. It is worth stressing that the point -- including the president. The point is stephen miller, the attorney general, deputy attorney general, the then deputy of staff, the point is that it is never appropriate for the executive branch to raise concerns about federal judge s. The point is there are processes for those concerns.
▶ 1:30:13Mr. Vladeck: So I am struck that here we are more than one hour into the hearing and this will be the first mention of the judicial conduct act of 1980 which congress passed to recognize the fact that it was an impossible choice to have nothing but impeachment for a judge's behavior. If there are charges to be brought against the judges, that would be the avenue. It has not been utilized except for the frivolous complaints against justice boasberg.
▶ 1:30:41Sen. Whitehouse: Precisely. I would argue that the context here is a pattern of threats against federal judges for unprecedentedly bad behavior by doj. When they call it out, then they have a cascade of threats fall in on them. It is a deliberate effort to try to intimidate the judiciary into not ruling against the trump administration without the position they take.
▶ 1:31:12Sen. Whitehouse: It is hard for me to not see this proceeding as supportive of that unfortunate effort.
▶ 1:31:17Chair Cruz: Senator lee.
▶ 1:31:19Sen. Lee: Thank you, Mr. chairman. Mr. chamberlain, I would like to start with you. Let's start with judge boardman and her downward departure in this case involving justice kavanaugh's would be assassin. As I understand it, the sentencing guidelines consistent with the underlying federal statutes were recommended as the prosecution had recommended and as the defense had disputed a range of 30 years to life.
▶ 1:31:48Sen. Lee: So we are talking about a range beginning with 360 months. Judge boardman then reduced that all the way down to just 97 months. Significantly shorter. That is a dramatically reduced sentence. Downward departures are not unheard of under the sentencing guidelines. They happen with some regularity. Nonetheless, the nature of this case is itself unusual. The nature of this case does not seem to be the kind of case in which you want a downward departure.
▶ 1:32:18Sen. Lee: But more to the point, her reasoning makes little sense to me. In your view, did she supply any sufficient legal justification not just for departing but for departing so dramatically in the case?
▶ 1:32:31Mr. Chamberlain: She provided a justification. And just certainly was not sufficient.
▶ 1:32:34Sen. Lee: So gender identity and personal circumstances.
▶ 1:32:40Mr. Chamberlain: She made a very bizarre argument about how general deterrence does not work. She made in particular this claim that no rational person would take a ten-year sentence to achieve a political assassination, which 4000 years of history rebuts.
▶ 1:32:50Sen. Lee: If that were the case, we can throw the sentencing guidelines out the door. Could we not?
▶ 1:32:55Mr. Chamberlain: Sure, we don't need them.
▶ 1:32:57Sen. Lee: Because what she is saying is lengthy incarceration is never appropriate or really appropriate because any sane rational person sane enough and rational enough to be guilty of committing a criminal offense would be rationally deterred by a significantly shorter sentence. Where would be the stopping point in that?
▶ 1:33:14Mr. Chamberlain: There would not be. We might see murderers regularly getting eight to 10 year sentences, especially if conditions were terrible because they were trans.
▶ 1:33:23Sen. Lee: Did the judge act outside of the typical bounds of judicial discretion?
▶ 1:33:26Mr. Chamberlain: Absolutely.
▶ 1:33:28Sen. Lee: And go rogue?
▶ 1:33:29Mr. Chamberlain: Yeah, I think this is a rogue decision.
▶ 1:33:32Sen. Lee: Not sure the enter to this. Do you know whether the government appealed the sentencing decision that is now pending?
▶ 1:33:39Mr. Chamberlain: Yes. Correct.
▶ 1:33:40Sen. Lee: .ok ok. Given the increase in threats to government officials, including two significant and darn near successful attempts on the life of president trump, then a candidate and former president for the presidency in 2024, and the more recent assassination of charlie kirk and the rising threats against various
▶ 1:34:11Sen. Lee: Political officials including but not limited to members of congress including both houses and members of the president's cabinet and white house staff. How does a lenient sentence like this one impact the deterrence issue and the safety of those who might be affected by this kind of decision?
▶ 1:34:30Mr. Chamberlain: It sent a terrible message to would-be perpetrators that says you could do something as dramatic as assassinate a supreme court justice hora try. Fly across the country with a handgun to do it. Get eight years and be out in six. It is just not about republican, democrat. It is bad for the country. It is bad for not just supreme court justice's but everybody sitting here.
▶ 1:34:54Sen. Lee: You said earlier in her testimony -- your testimony that even a single grave act can justify impeachment. What is the grave act here and how might it differ from disregarding the appropriate length of a criminal sentence?
▶ 1:35:15Mr. Chamberlain: I think it is the fact that you are treating the attempted assassination of a shipping quote justice as a garden-variety crime. Doing so weakens the judiciary. And the entire point of impeaching judges is to protect their influence and independence. But if somebody is time to kill them and a judge says that is no big deal, that puts federal judges at risk. This is the rare case where it would indicate the impeachment of the judiciary.
▶ 1:35:42Sen. Lee: Because they themselves could be at risk, as judge kavanaugh.
▶ 1:35:46Mr. Chamberlain: Correct.
▶ 1:35:48Sen. Lee: From the standpoint of institutional integrity, what message does congress send to the judiciary, to the public, and to would-be political assignments if it ignores this conduct? In this instance, if an ignores the sentencing decision.
▶ 1:36:03Mr. Chamberlain: It is not a big deal, just like any other bad decision. That is some of the argument you are hearing coming from the other direction. Well, you should not ever impeach a judge for a decision. One of the judge had left the assassin off? There should be intimate to which a judicial decision could be better not that it justifies impeachment.
▶ 1:36:22Sen. Lee: Finally, what relevance did the gender identity of the defendant, the would-be assassin of associate justice brett kavanaugh -- help me understand what relevance that might have had to such a dramatic downward departure from the sentencing recommendation not disputed or refuted by defense counsel.
▶ 1:36:42Mr. Chamberlain: Judge boardman suggested that gender identity meant incarceration would be more punitive than it would be for a normal defendant. That was her reasoning for saying that a lesser sentence can serve the aims.
▶ 1:36:56Sen. Lee: Wait a minute. Anybody with gender identity issues would also be eligible for a significant downward departure for that reason?
▶ 1:37:05Mr. Chamberlain: If you extended this logic more broadly, yes.
▶ 1:37:08Sen. Lee: Thank you.
▶ 1:37:09Chair Cruz: Thank you. Ranking member durbin.
▶ 1:37:12Sen. Durbin: Mr. chamberlain, in september, you posted the following. "I am fine with the living constitution at the moment. There are a number of provisions that could be hopefully reinterpreted in light of the demands of our current problems.
▶ 1:37:36Sen. Durbin: To ensure that we can jell everyone celebrating charlie kirk's death." for the record, I condemn political violence, threats of violence, and the like from either right or left. Do you believe personally those who celebrate political violence should be put in jail?
▶ 1:37:54Mr. Chamberlain: No.
▶ 1:37:56Sen. Durbin: Despite your statement?
▶ 1:37:58Mr. Chamberlain: Yeah, it was a provocative x coast. Not a matter of what the law should be.
▶ 1:38:04Sen. Durbin: So we will examine something you call provocative?
▶ 1:38:06Mr. Chamberlain: A lot of people post a letter provocative things on x.
▶ 1:38:10Sen. Durbin: You believe advocates for political violence should be put in jail?
▶ 1:38:14Mr. Chamberlain: No, not on that alone.
▶ 1:38:17Sen. Durbin: You currently work on something called the article three project?
▶ 1:38:21Mr. Chamberlain: Correct.
▶ 1:38:23Sen. Durbin: Is your supervisor mark davis?
▶ 1:38:25Mr. Chamberlain: Yes, he is.
▶ 1:38:26Sen. Durbin: Conger and president of the article three project.
▶ 1:38:29Mr. Chamberlain: Correct.
▶ 1:38:30Sen. Durbin: On november 19, he posted the following. "dear district fig judges, we will start naming and shaming you for your pretrial release of violent criminals. Even denials of criminal complaint. F you. We are going to make you famous." on the day before to davis posted this, he posted the following. "dear U.S. attorneys, stop being p word.
▶ 1:39:02Sen. Durbin: Charge agitators with assault, conspiracy, harboring. Do your jobs or we will start calling you out my name. I very publicly seek your removal. Enough is enough." he followed that up by saying, you know who is excellent at naming and shaming? He then tagged you in this post. You responded by saying, you beat me to it this time.
▶ 1:39:31Sen. Durbin: You consider statements to be level crimes by your opponents but acceptable and only provocative when expressed by your boss?
▶ 1:39:39Mr. Chamberlain: I just explained that I don't think offensive statement rj level -- are jailable.
▶ 1:39:46Sen. Durbin: Why did you end up saying that? Backing the statement of your boss.
▶ 1:39:51Mr. Chamberlain: Backing a misstatement by my boss? I don't think he is calling for anybody's jailing in that.
▶ 1:39:58Sen. Durbin: The point I am trained to make is we spent a lot of time in this committee deciding the code that political violence is undetectable, the right or the left.
▶ 1:40:06Mr. Chamberlain: Yes.
▶ 1:40:07Sen. Durbin: There are members of this committee, not on the set of the roster, who argue all of the political violence is coming from the left. I don't think that is true. I think it comes sadly from both sides but I condemn all of it. Loose language such as your from the so-called article three project is not helpful in reducing the amount of violence in this country. Do you understand that?
▶ 1:40:30Mr. Chamberlain: I think judge boardman's decision was unhelpful for that. I think judge boardman giving an eight year sentence to a would-be assassin is a lot bigger deal than a x coast.
▶ 1:40:41Sen. Durbin: Does that give you permission?
▶ 1:40:42Mr. Chamberlain: No one is permission to post on x.
▶ 1:40:46Sen. Durbin: The point we are trying to make is what is a comfortable conduct. I think what justice roberts said and others, there are limits to what we say, and this notion of impeaching all the changes that we disagree with is a novel approach, one that is inconsistent with the kind of democracy we have developed to this point. I find problems with that. I yield.
▶ 1:41:11Chair Cruz: Thank you, ranking member durbin. We have been now through 40% of the democrats questioning and so far my production that not a one of them would under the words boardman because of the indivisible decision to deviate downward 22 years to a would-be assassin of a supreme court justice. So far, 40% of the way income, that prediction has proved 100% correct. Senator kennedy. Sen. thank you, Mr. chairman.
▶ 1:41:41Chair Cruz: I apologize for my voice. Professor luther, I don't want to talk to you, sir, about judge boasberg or whatever his name is. I don't know the man. I want to talk to you about federal criminal practice and procedure. Suppose the attorney general appoints a special counsel to investigate criminal conduct.
▶ 1:42:10Chair Cruz: And the special counsel goes to a federal district judge and says, I am going to subpoena these people's phone records. If that list of people includes sitting united states senators, does the special counsel have a legal or moral obligation to tell the judge there are members of the U.S. senate?
▶ 1:42:36Mr. Luther: Yes. Under my understanding, it would.
▶ 1:42:42Sen. Kennedy: Ok. The justice department at that time had a policy.
▶ 1:42:49Mr. Luther: Yes.
▶ 1:42:50Sen. Kennedy: That that information was not to be passed on to the district judge. Is that correct?
▶ 1:42:55Mr. Luther: Yes, that policy was referenced by jack smith and his house hearing. My response to that is doj policy does not simply be federal law.
▶ 1:43:17Sen. Kennedy: If the special counsel in my hypothetical said what Mr. smith allegedly said, which is the dog ate my homework, I could not do it because the doj had a policy, does the federal judge in my hypothetical have a legal or moral obligation to inquire?
▶ 1:43:39Mr. Luther: Yes. How can you enter an order without any facts?
▶ 1:43:47Sen. Kennedy: Should the federal judge in my hypothetical hold some sort of hearing as to why the special counsel in my hypothetical alleges that these people including but not limited to sitting united states senators would commit a federal crime against withdrawing evidence?
▶ 1:44:15Mr. Luther: I think briefing would be an adequate start, ultimately, needing in a hearing. I think judge boasberg should hold jack smith in contempt for not doing precisely that. Judge boasberg is trying --
▶ 1:44:29Sen. Kennedy: Would you expect a federal district court judge to know that with all of these subpoenas flying around that there is a statute saying you cannot turn over the phone records of the united states senator without them knowing about it? Would you expect the federal district court judge to know the law?
▶ 1:44:51Mr. Luther: Absolutely. If it is too hard for him, he can resign.
▶ 1:44:57Sen. Kennedy: Would it be grossly negligent or malfeasance if this federal judge was a smart guy and he knew that his phone records might be for sitting united states senators but he did not inquire?
▶ 1:45:16Mr. Luther: I think that would be basis for judicial misconduct and ultimately an impeachment inquiry.
▶ 1:45:26Sen. Kennedy: I suppose that the federal district judge signed the order. And the federal district judge said, you can have the records and I'm going to sign this order saying this has to remain confidential because these people might destroy evidence.
▶ 1:45:51Sen. Kennedy: And let's suppose that the next stop for the special counsel was less just a verizon -- let's just say verizon. Do you know a person by the name of bandana?
▶ 1:46:05Mr. Luther: I don't. But before we get there, I think the judge would need an internal opinion under seal describing his basis.
▶ 1:46:13Sen. Kennedy: I appreciate that. Do you know a person by that name?
▶ 1:46:17Mr. Luther: I am not familiar with the individual.
▶ 1:46:20Sen. Kennedy: She is the executive vice president and general counsel of verizon. Did you know that?
▶ 1:46:24Mr. Luther: I did not.
▶ 1:46:26Sen. Kennedy: Sure you do. I just told you.
▶ 1:46:29Mr. Luther: Oh.
▶ 1:46:30Sen. Kennedy: Are you aware that last year she made $6.4 million?
▶ 1:46:35Mr. Luther: I am now.
▶ 1:46:37Sen. Kennedy: She must be pretty smart. Would you expect someone this smart to say, whoa, Mr. special counsel, I got this list you gave me. Are any of these people sitting united states senators? Wouldn't you expect her to inquire?
▶ 1:46:58Mr. Luther: I expect companies to give the senate a little more respect then they gave here.
▶ 1:47:03Sen. Kennedy: And if the special counsel refused to tell her, if he said, I cannot tell you that. If I told you, I would have to drown you in the pacific. Wouldn't you expect her to seek a court order squashing the subpoena if for no other reason but to cover her elbow?
▶ 1:47:27Mr. Luther: I think the members have a right to have expected that.
▶ 1:47:28Sen. Kennedy: And if she did not do that, either out of ignorance, maybe she was tired from counting her money all day, I don't know, but if she did not do that, would that be malpractice?
▶ 1:47:44Mr. Luther: I think it would be worse. As I mentioned in my written testimony, I think they subjected the service provider liability.
▶ 1:47:55Sen. Kennedy: But here is my point in the situation I described. If the special counsel goes to these telephone companies, these are smart people. They are lawyers paid a lot of money. They are supposed to be as smart as professor vladeck.
▶ 1:48:15Sen. Kennedy: And if they just sat there like a bump on a log and said, ok, sure, anything you want my here are the records, without inquiring in this environment as to whether or not they were sitting U.S.
▶ 1:48:29Sen. Kennedy: Senators, without saying I better cover my rear end here if I don't motion -- here and file a motion to squash, wouldn't that be liability to others who demonstrated the special kind of stupidity?
▶ 1:48:47Mr. Luther: That is a very significant risk. And jack smith and judge boasberg put them in that situation.
▶ 1:48:52Sen. Kennedy: Boy, I have gone way over. But then you did too, cruz thank you., Mr. chairman.
▶ 1:49:01Chair Cruz: Thank you, senator kennedy. I would notice his hypothetical is not a hypothetical. While verizon did willingly comply with handing over the phone records of multiple senators and house members, at&t did not. At&t was subpoenaed by jack smith for my phone records. And at&t's legal counsel concluded that handing my phone records over to jack smith would violate the speech clause of the united states constitution. You know what jack smith and the department of justice did? Nothing.
▶ 1:49:33Chair Cruz: The not even go to court to try to enforce the subpoena because they knew it was unlawful.
▶ 1:49:37Sen. Kennedy: Yes, sir.
▶ 1:49:39Chair Cruz: So there was no litigation over it. At&t ignored the subpoena, and doj new they were engaged in a partisan thing.
▶ 1:49:47Sen. Kennedy: Did at&t tell any of the senators? No.
▶ 1:49:51Chair Cruz: They did not.
▶ 1:49:52Sen. Kennedy: Did verizon tell any of the senators?
▶ 1:49:54Chair Cruz: They did not.
▶ 1:49:57Sen. Kennedy: Did verizon seek a motion to squash?
▶ 1:50:00Chair Cruz: They did notchair
▶ 1:50:01Cruz: .
▶ 1:50:01Sen. Kennedy: No.
▶ 1:50:02Chair Cruz: And both were covered by the orders signed by judge boasberg with zero basis in fact.
▶ 1:50:11Sen. Kennedy: Let me make a request respectfully, Mr. chairman. I appreciate these witnesses. I want to get you general counsel, the ceos of all of these telephone companies before this committee.
▶ 1:50:22Chair Cruz: I would love to do so. Preaching to the choir.
▶ 1:50:25Sen. Kennedy: As one columnist put it, we have crossed the river from cinderella to "what the hell?" >> Mr. chairman.
▶ 1:50:34Sen. Kennedy: I would like to have those telecommunication companies come here in front of god and country and explain why they did what they did or did not do. >> Mr. chairman, we actually are having the general counsels and ceo's before our subcommittee on january 27.
▶ 1:50:53Chair Cruz: Excellent. Good to know. Senator hirono.
▶ 1:50:58Sen. Hirono: I am really glad that the chair and others have expressed concerns about using facts in order to make decisions, so that is good. So let's look at the facts. Let's talk about those facts. Justice boasberg issued nondisclosure orders for subpoenas seeking telephone records. My republican colleague subject to the judge's decision.
▶ 1:51:22Sen. Hirono: But then he issued these orders -- when he issued those orders, he did not know that the phones belonged to senators because nobody told him. And that was the longtime doj practice at the time of his decision. Jack smith testified to this under oath before the judiciary committee last month. We have questions about that aspect of what was going on.
▶ 1:51:53Sen. Hirono: We can invite jack smith to come and testify in an open hearing as he has offered to do. Meanwhile, as for the judge, he was told that president trump or those who try to help him overturn the election made or received calls from these phone numbers on january 6 or shortly before.
▶ 1:52:15Sen. Hirono: Courts are required, required to issue nondisclosure orders when there is reason to believe that not doing so would lead to witness intimidation or evidence tampering. That does not mean, as jack smith testified last month. In fact, here is his testimony. Here is the transcript of the testimony he provided to the house judiciary committee.
▶ 1:52:39Sen. Hirono: He testified that the senators whose records were seized, they were not the ones who would temper with evidence or intimidate witnesses. Only that someone would. Instead, again, according to jack smith's sworn testimony, nondisclosure orders were sought because president trump repeatedly tried to intimidate witnesses.
▶ 1:53:06Sen. Hirono: We have all been witness to the fact that president trump goes after people he does not agree with. And he is very busy targeting people. We know that. So if my colleagues want more interest, they should invite again jack smith to testify publicly, as he has offered to do. Or at the least, they should read the transcript of his sworn testimony. We care about facts. Well, hey, here are facts that he is providing.
▶ 1:53:33Sen. Hirono: If my colleagues are looking for someone to blame for their phone records being seized, they should blame president trump, who try to overturn an election on january 6 and called or had someone else call the senators in the process. But this impeachment crusade, this hearing is not about supposedly judicial misconduct.
▶ 1:53:59Sen. Hirono: It is about intimidating and threatening judges who have a temerity to apply the law to donald trump and render decisions that trump does not like. Come on, let's face it. We all know that president trump does not think the rule of law applies to him. He can do anything. That is what he said. So this hearing is for show. Who is the audience? President trump.
▶ 1:54:25Sen. Hirono: If the standard for impeaching judges was that they issued decisions we disagree with, then I would call for the impeachment of the justices behind opinions like citizens united, dobbs, or the hand-picked judges in texas who are the targets of so much judge shopping.
▶ 1:54:48Sen. Hirono: When a judge or justice's decision should not be the basis of an impeachment which is something the senate has understood since the jefferson administration. And that is why I and so many of us do not call for judges to be impeached based on how they do their jobs and the fact that we disagree with how they do their jobs.
▶ 1:55:10Sen. Hirono: If we want to talk about judicial accountability, we should conduct further oversight of justice thomas's failure to disclose the many gifts he has received as an example. That is just one example. In the meantime, let's stop with these kinds of hysterical and I would say dangerous attacks on the judiciary.
▶ 1:55:35Sen. Hirono: And as for judge boardman, her sentencing decision is on appeal. As chief justice roberts said, the appellate process is an appropriate process. That is exactly what is happening.
▶ 1:55:52Sen. Hirono: I am running out of time, but I just wanted to ask professor vladeck, we are sitting here for hours talking about impeaching justices whose decisions we don't agree with and that there has also been criticism of judge boasberg for how he assigns cases in the U.S. district court in D.C.
▶ 1:56:18Sen. Hirono: And I think that there are guidelines on how he does that. It is I think random assignments. That is different. For example, I would say, maybe you can explain the difference between the random assignments we are seeing in D.C. and the judge shopping in certain district court within the fifth circuit.
▶ 1:56:42Mr. Vladeck: Sure. Senator, briefly because time is running short, the district court has an assignment process. I believe this committee is in possession of a letter that walks through how that process works specifically in ddc. There is a fox news story that I think concluded that in fact judge boasberg has a disproportionately low percentage of cases. Challenging trump administration policies.
▶ 1:57:07Mr. Vladeck: That is different from what is at least a one district court left that has judge shopping in texas. It has cases filed in amarillo or assigned to a judge or 100% of the cases filed in wichita falls or judge o'connor -- assigned judge o'connor.
▶ 1:57:27Mr. Vladeck: I have visibly been one of the loudest public critics of the process of judge shopping but never did I call for the impeachment of judge o'connor or the other judge, even for indulging this process, even for denying wishes to transfer, even in the case of the judge for taking a shot at me. This is how the court system is supposed to work. When things go wrong in that process, we appeal or reform. And it is in the call records. That to me is the productive part of this.
▶ 1:57:58Mr. Vladeck: If the committee things targets of call record subpoenas have a right to be notified, so be it. It is a competition of how we can change a law. It is a conversation we have had about foreign intelligence surveillance. I think we are trying to use the lens of judicial impeachment to get around the fact that there are actually meaningful substantive policy questions here that are much more fruitful to discuss.
▶ 1:58:24Chair Cruz: I would note that professor vladeck just said if a majority of this committee things that a senator is subject to subpoena should be notified that it can pass the law. Magically we used a time machine to do that because congress passed that into law in 2004. It is in the united states code. It is in black letter law. Judge boasberg disregarded that. He did so at the invitation of jack smith.
▶ 1:58:49Chair Cruz: And I would say my democratic colleagues, gosh, it is standard practice not to tell a judge the number you are subpoenaing. It is not standard practice to subpoena 20% of the republicans in the senate, the opposing party. I am confident my democratic colleagues would be really pissed if the truck doj subpoenaed 20% of the democrats in the senate and concluded with no basis.
▶ 1:59:14Sen. Hirono: What you are referring to is unclear.
▶ 1:59:17Chair Cruz: I am happy to recognize you to respond, but I would ask you not to interrupt me because I am not interrupting you. I am certain my democrat colleagues would be unhappy if the truck doj -- I am asking you not to interrupt me, senator hirono. I did not interrupt you. I am speaking now and will recognize you to respond when I have concluded speaking.
▶ 1:59:41Chair Cruz: I unconfident my democratic colleagues will be deeply unhappy if the truck doj subpoenaed 20% of the democrats in the senate and concluded the mere fact that they are democrats means they are likely to be criminals. And I do want to note also my prediction that no senator would mention judge boardman's name proved wrong with the penultimate democrat speaker. Senator hirono did mention her name. And 100% of what she said is the decision on the appeal.
▶ 2:00:10Chair Cruz: I would welcome any of my democrat colleagues to say judge boardman's decision to deviate downwards by 22 years to reward an assassin, and attempted assassin of a supreme court justice is anything but disgraceful, brazen, and encouraging more political assassinations. To defend it is anything other than a complete dereliction and abuse of her oath of office. Senator hirono, you are welcome to respond.
▶ 2:00:33Sen. Hirono: You talk about using facts. The law that you referred to is not exactly clear on who bears the possibility for asking the heck's records are being subpoenaed. By the way, if you want to blame some buddy from the fact that 20% of republican senators were subpoenaed, you can blame president trump because he is the one who is calling all of you, or he had all of his minions calling you. So there you go. That is all I have to say.
▶ 2:01:02Chair Cruz: It is an amazing statement that democrats now believe the fact that a member of the senate speaks to the president of the united states is sufficient to subpoena their phone records and that they are criminals. You don't get to say moveon because you don't have the gavel, but I will say this, I am sad to say perhaps if you have not presided over a disastrous economy, open border, and wars across the globe, you might still have the majority. But you don't. My point is very simple.
▶ 2:01:32Chair Cruz: It is not a criminal conduct to speak with the president of the united states. And it is ludicrous to suggest that in his.
▶ 2:01:38Sen. Hirono: Of course I did not make that suggestion. That is why I say move on with this.
▶ 2:01:44Sen. Whitehouse: And while we are doing that, since professor vladeck mentioned a letter from director conrad at the admonition of office of the united states court, I offer that letter he mentioned as an initial exhibit.
▶ 2:01:57Chair Cruz: The letter will be admitted without objection. Senator blackburn.
▶ 2:02:00Sen. Blackman: Thank you, --
▶ 2:02:05Sen. Blackburn: Thank you, Mr. chairman. Amazing however colleagues across the aisle are now about the rule of law when they chose to just go rogue on so many issues. During the biden administration. Mr. luther, I do want to come to you. And I want to return to this issue of the ndo.
▶ 2:02:27Sen. Blackburn: And I have found being one of those that had my records subpoenaed. I found it absolutely asked sounding -- absolutely astounding that his basis for doing this was, and I will quote , that notifying us would result in the destruction of or tampering with evidence,
▶ 2:02:58Sen. Blackburn: Intimidation, or potential witnesses and seriously jeopardize the investigation. And of course, that is ridiculous on its face. So talk for a little bit about the unique nature of judge boasberg issuing the ndo on top of the subpoena.
▶ 2:03:20Mr. Luther: Sure. As I mentioned, he had a duty to make sure his gag order could be lawfully entered, and he failed to do so. Nevertheless, he entered this order with the provision you just mentioned signed there. On what basis? I think the committee needs to note what evidence he consulted to reach that conclusion.
▶ 2:03:44Mr. Luther: Senator hirono, I know she just left, but she said it is not clear who is ultimately responsible when there is a cause of action for invoking this provision. Subsection d1b2 says that the private cause of action exists when senate data was acquired, subpoenaed, searched, or put into a search seizure or demand for information without notice being provided as required.
▶ 2:04:14Mr. Luther: So I don't know how much more clear the statute needs to be.when are not notified, there is a cause of action to be had.
▶ 2:04:22Sen. Blackburn: Talk for a little bit about your reference to the impeachment and resignation of judge english. In the 1920's. You said this reminded you. You thought it was similar in construction.
▶ 2:04:37Mr. Luther: Sure. Certainly a lot has changed in the last 100 years, but judge english had a number of charges against him. Contempt without lawful basis, which is the same as the situation with the venezuela case, with judge boasberg. Judge english is also apparently having some issues where he called in a number of government officials under the name of a fake case.
▶ 2:05:02Mr. Luther: The mayor, the sheriff, the county lawyer, and he just berated them, chris minns, and then he set -- curse words, and then he sent them on their way. The use of the imaginary case reference is more of an analogy, but the reality is there was no case in judge english's case.
▶ 2:05:24Mr. Luther: In this case, the venezuelan individuals that already been removed and the language that judge boasberg is saying his order contained is not actually the order with language in the order.
▶ 2:05:36Sen. Blackburn: Ok. Thank you. I want to move with you to the speech of debate clause. We touched on that just a little bit earlier. There was an email exchange. Mr. chairman, I don't know if we have entered this into the record or not, but it is wednesday, 17th of may, 2023, exchange between some of the attorneys. And I would ask that we submit this into the record.
▶ 2:06:05Chair Cruz: Without objection, it will be admitted.
▶ 2:06:06Sen. Blackburn: This is from some of the public integrity section. And they acknowledge that there is some mitigation risk -- litigation risk in moving forward in the manner that they chose to move forward. And he makes the point that compelling the disclosure of the phone records would be a blatant violation of the speech and debate clause. So talk a little bit about the importance of that in this case.
▶ 2:06:34Mr. Luther: Yes, I am familiar with the email you are referring to. It is concerning. It shows there was discussion among the special counsel's team that failing to disclose information about individuals who are subject to subpoena could result in litigation risk which I believe is the quote used, meaning they could be found to have vitamin in the constitution or potentially engaged in misconduct.
▶ 2:07:02Mr. Luther: Lawyers need to be able to have candid conversations about risk via email. But I think what that email does show is they knew there was a problem here. Yet at the end of the day, they did not do anything about it.
▶ 2:07:15Sen. Blackburn: Thank you, Mr. chairman.
▶ 2:07:17Chair Cruz: Thank you. Senator welch.
▶ 2:07:21Sen. Welch: Thank you very much. Mr. chamberlain, did joseph biden win the 2020 election?
▶ 2:07:31Mr. Chamberlain: He was the president of the united states from 2020 to 2024.
▶ 2:07:33Sen. Welch: Did he win the election?
▶ 2:07:36Mr. Chamberlain: In my viewmr.
▶ 2:07:37Chamberlain: , yes.
▶ 2:07:38Sen. Welch: The president trump say it right?
▶ 2:07:46Mr. Chamberlain: He has opinions about that. We saw something come out of georgia recently about how it is properly being disinfected he had the right to challenge the election if he wanted to. If you believe there is fraud, he is allowed to express his beliefs.
▶ 2:07:57Sen. Welch: You believe it was proper for him to tell folks that they should come because the election was stolen and it will be wild in washington, which he did?
▶ 2:08:07Mr. Chamberlain: I mean, I don't know.
▶ 2:08:09Sen. Welch: Things happened five years ago yesterday as a result of him calling folks to washington. Right?
▶ 2:08:16Mr. Chamberlain: Things have happened. A few months ago my best friend was murdered.
▶ 2:08:22Sen. Welch: Professor luther comedy president biden win the election in 2020?
▶ 2:08:24Mr. Luther: Joe biden was certified and served four years as president.
▶ 2:08:28Sen. Welch: That is the line.
▶ 2:08:29Mr. Luther: That is facts.
▶ 2:08:31Sen. Welch: There is also a question I am asking that is different than your answer. Did president biden win?
▶ 2:08:38Mr. Luther: I was not there to count the votes but I know joe biden served four years as president.
▶ 2:08:44Sen. Welch: So is president trump acting appropriately to assert that the election was stolen?
▶ 2:08:50Mr. Luther: Political officials say also to things. And he was certainly within his rights to.
▶ 2:08:55Sen. Welch: Where the people who came on january 6 and attacked the capitol, attacked police officers, who injured and in a couple of cases we lost lives of police officers five years ago, were those defendants legitimately target the prosecution?
▶ 2:09:15Mr. Luther: Violence is never acceptable. Against public officials, private officials, period.
▶ 2:09:20Sen. Welch: In commission president trump have pardoned them?
▶ 2:09:24Mr. Luther: The pardon power is plenary.
▶ 2:09:27Sen. Welch: I am asking your opinion. You have had a lot of opinions on other things. The pardon power is absolute.
▶ 2:09:33Mr. Luther: I will not second-guess the president's decision.
▶ 2:09:37Sen. Welch: Mr. turnbull and, should they have been pardoned -- Mr. chamberlain, should they have been pardoned?
▶ 2:09:43Mr. Chamberlain: Yes.
▶ 2:09:44Sen. Welch: I don't have an opinion because I don't think you should have an opinion on every sentence, Mr. chairman. That does seem right. But that is on appeal, and that is the process. And if we are going to have as a committee a hearing on every sentence that a member of this committee or the chair of the committee disputes, we are going to be here for a long time. I believe in the process, and we will see what the court appeals.
▶ 2:10:09Sen. Welch: But second, my view here, this is really a carryover from what happened on january 6. It was outrageous. This is my opinion. President trump abused his authority. He had the trust of millions and millions of americans who believed in him because of the things he advocated for. I give him credit for that. But he abused that trust when he asserted that the election was stolen.
▶ 2:10:35Sen. Welch: And when the people who put their faith and hope in him as their leader heard him say that they believed him -- that, they believed him. And he knew they would believe him. They came here, and they were violent. They attacked the capitol.
▶ 2:10:53Sen. Welch: During that time the attack was going on and president was tweeting out and calling vice president pence, telling him to cave and not certify the election, when that happened, there was violence here in this capitol. The first time in the history of our country, there is violence used in an effort to overturn an election and stop the peaceful transfer of power. That is the agenda here.
▶ 2:11:23Sen. Welch: We are talking about jack smith. Let's bring him in. You can asking questions. And you are a pretty dan and you are a pretty d tough questioner. He is link to company to Mr. vladeck, on this question, I don't want to have numbers of congress subpoena, but got three your narrative of what happened and how because there is an assertion being made by my colleagues that it was all set up in a partisan deal as opposed to legitimate prosecution as a result of the catastrophic events that happened on january 6.
▶ 2:11:54Sen. Welch: Please.
▶ 2:11:54Mr. Vladeck: So I think the point that has largely gotten lost in this afternoon, the judges received a number of these requests and applications on anyone basis and that there is a standard policy they follow. I think there is a rich conversation to be had about whether the policy should be the policy. Judge boasberg follow that policy.
▶ 2:12:20Mr. Vladeck: The point is he did not know and would not have known that the phone numbers in the subpoena with which -- to which the ndo was going to apply were for members of congress. The cause of action that congress created did not exist at the time of judge boasberg's was implement it.
▶ 2:12:44Mr. Vladeck: I think there is a lot to be said about providing more protection, not just for members of this committee and the senate, but for all americans when it comes to government access to phone records and nondisclosure obligations versus what actually happened in this case, which is judge boasberg following the rules, which is jack smith following what was then the justice department's guidelines, and which was the justice department changing the guidelines on its own when it realized it was potentially acting in ways that would go up against section 6628.
▶ 2:13:12Mr. Vladeck: It seems to be one can think that the law did not adequately protect individuals in this case and still think the relevant individuals act within the best traditions of the traditional power of the united states.
▶ 2:13:24Chair Cruz: Thank you. Professor vladeck, I know you are a very talented law professor, appellate advocate. You said, josh, judge boasberg followed the law. He plainly disregarded the law regarding nondisclosure senators , subpoenas targeting senators. But set that aside. Your defense as he did not know.
▶ 2:13:49Chair Cruz: If he did not know, that was because jack smith was engaged in wild misconduct by not telling the judge. Apparently the judge did not care because he did nothing to ask. But let me just ask you. Did judge boasberg have any factual basis whatsoever to sign multiple orders that says the court finds reasonable grounds to believe that such disclosure, telling the tellin telli telling the senators will result in the destruction of evidence, intimation of
▶ 2:14:20Chair Cruz: Potential witnesses, interviews jeopardy of the investigation? I would tell you now the claim is that he did not know who it was so would he have any factual basis other than a brooding animist all republicans and all republicans are criminal. Is there any other basis?
▶ 2:14:41Mr. Vladeck: I have not seen the government's application. Perhaps you have and I do not want to delve into areas that are confidential, but without having seen it --
▶ 2:14:45Chair Cruz: You are very clever. What do you think?
▶ 2:14:49Mr. Vladeck: I can speak later is very likely information in the application.
▶ 2:14:54Chair Cruz: Assume for the sake of argument there is no evidence, so you are leaving out a lot of details, so assume, this is I hypothetically have argued in court many times the department of justice told him nothing. I believe the hypothetical to be true, but assume the hypothetical. Is there any basis for signing these orders over and over again without the judge saying, gosh, can you give me one piece of evidence before I sign this order?
▶ 2:15:21Mr. Vladeck: So, senator, you are asking me to answer whether the justice department provided no factual proffer and he approved the location.
▶ 2:15:29Chair Cruz: No, I am saying if the doj provided no facts to support this, would boasberg have any basis for signing and without any factual predicate whatsoever?
▶ 2:15:38Mr. Vladeck: I think the question would become, what was the standard practice? On that regard, I would defer to the letter.
▶ 2:15:44Chair Cruz: I don't care. My question is, you are a law professor, you have been an appellate advocate. As a judge one day if there is a democrat in the white house that would one day be in the white house. Would the judge have a basis for signing an order with zero evidence and saying the court finds? Is that consistent with the judicial? Yes or no assuming no evidence?
▶ 2:16:13Mr. Vladeck: If the justice department provided no evidence, I would think it would be inconsistent with the law.
▶ 2:16:20Chair Cruz: I do as well. Senator hawley.
▶ 2:16:23Sen. Hawley: Thank you very much, Mr. chairman. Thanks for holding this hearing. Maybe I will start with you, professor luther, just see if I can figure out what the baseline is. It has been said over and over by our democrat colleagues that judge mosby cannot be -- that judge boasberg cannot be held to come because he had no idea, no idea whose records he was issuing subpoenas for. He did not inquire or ask.
▶ 2:16:54Sen. Hawley: He just signed it. As senator cruz was just saying. That is despite the law. Is that how it works, that is fine? The judge, whatever the doj says, he does not need to inquire separation of powers concerns? He does not ask about it? It does not matter, he can just sign it?
▶ 2:17:14Mr. Luther: That is not how it is supposed to be based on the evidence, that is the best evidence of what happened.
▶ 2:17:21Sen. Hawley: Is that how nondisclosure orders work as well? You can get a nondisclosure order against specific individuals, not to notify specific individuals if there is some suggestion that somewhere, someone in the universe might disclose or tamper with evidence somehow in some way? Is that how a specific nondisclosure order works? I never heard of such a thing but maybe I just missed it.
▶ 2:17:47Mr. Luther: That is the point where smith's team should have told judge boasberg these are senators and there are different obligations under the law for how we treat them.
▶ 2:17:56Sen. Hawley: I have never heard of a nondisclosure order. I was the attorney general of my state who sought these things in the past. I never heard of one where you say, actually, we cannot offer you any evidence that any of the people targeted in the order would actually tamper, but somebody out there somewhere might maybe take our word -- might maybe. Take our word for it and sign the order. Does this actually exonerate judge boasberg? Does this make him better?
▶ 2:18:24Sen. Hawley: My democrat colleagues offer this as he was doing his job. Does this make it better or worse?
▶ 2:18:31Mr. Luther: When this book for the first time, is not so much that judge boasberg is being intentionally -- it is not intentional. It is more negligent, and that is I think the situation.
▶ 2:18:42Sen. Hawley: Is grossly negligent. Here is my bigger issue, that there is a pattern here with what happened the last four years were every time it comes to hold somebody accountable for something that happened to real people, there is always an excuse as to why it cannot be done.
▶ 2:19:01Sen. Hawley: Senators, sure, whatever, but let's talk about the individual american citizens who had swat teams sent to their homes in the early morning hours to take them into custody for protesting peacefully, saying prayers outside of an abortion clinic. I think about mark and his family. An fbi swat team came to his home armed, took him into custody, dragged him off. He was later acquitted by the jury for any wrongdoing.
▶ 2:19:30Sen. Hawley: We had the antiterrorism division of the fbi activated against parents who went to school board meetings and asked about their children wearing masks at these meetings. The antiterrorism division. We had the fbi recruiting and performance that spies into catholic parishes in this country making a list of churches that the fbi or at least the richmond field office had serious security concerns about.
▶ 2:19:59Sen. Hawley: As far as I know, nobody associate with anything I just mentioned has been disciplined in any way. Again anyway. You think I don't care about the senators, they get what is coming to them. Fine. What about individual private citizens who are just exercising their constitutional rights? What about parents who are just going to school board meetings?
▶ 2:20:20Sen. Hawley: What about parishioners who are coming to church in a church of their choice in the united states of america and have their own government recruiting informants into the church? It is a gross pattern of abuse of law that went on for four years in this country like I have never seen or read about in the history of this country. And nobody to my knowledge, nobody has been held accountable.
▶ 2:20:50Sen. Hawley: Today, you sure as heck cannot do it for this judge or any other judge and you cannot touch anybody who went after these parents or went after these parishioners. No, just move on. What is it one of my colleagues said a moment ago? This is just a show. No, actually, it is not a show. All of these things happened. This is not a game. People's rights were violated. People of faith were targeted in extreme ways. And nobody has been held accountable for it.
▶ 2:21:17Sen. Hawley: And I don't recognize this country or our constitution in those practices. We wif this is allowed to move on, we will not have either of those things in the future.
▶ 2:21:29Chair Cruz: Thank you, senator hawley. Here, here. Senator moody.
▶ 2:21:33Sen. Moody: Thank you, chairman cruz. Grateful for the witnesses being here today. I think you are human concerns at this from this side of the dais, and really should be on both sides because we know this country was built on a very clear separation of power and the importance of an independent and impartial judiciary.
▶ 2:22:01Sen. Moody: And I have repeatedly warned how dangerous it can be coming from a family of judges, having been a judge myself, worked also in the executive branch. How dangerous it can be if someone trades in their black robe for a blue jersey. And I heard you use the term negligent. I think it is negligent when you have judges predicting what an executive may do before they even do it. And bringing that bias with them into their decision-making.
▶ 2:22:33Sen. Moody: In fact, at a session of the judicial conference in the united states back in march of 2025, judge boasberg said to chief justice roberts and two dozen other wattages exposing his belief that the trump administration would disregard rulings of federal courts and trigger a "constitutional crisis." I think it is negligent, acceptable, and abuse of power for a federal judge to go out and start talking about what an executive will do before they do it.
▶ 2:23:05Sen. Moody: It kind of reminds me about a federal judge that said may be a senator or even eight senators would destroy evidence. That is the exact kind of judge that should not be left on the bench wearing a black robe, thinking that disguises him as being impartial. When in fact he is conducting partisan warfare with the protection and shield of a bench. And this is dangerous.
▶ 2:23:36Sen. Moody: We have hit 250 years of this great country. I would like many, many, many more. So with all of the great americans that value freedom and what this country has offered to so many. And this is not just hyperbole. This is not just a show. C1 not just a show. Let's look at venezuela.
▶ 2:24:00Sen. Moody: Once a thriving nation, venezuela was taken over by narco dictators running a country as a cartel and subjecting himself -- its people to an oppressive, dehumanizing, deadly force. And how did that happen? Well, when I was attorney general, I met with exiled supreme court justices from my country, who had to flee.
▶ 2:24:27Sen. Moody: They said that all of it started happening come of it started happening, the freedoms, their security come of government, when they packed the court. When chavez packed the court, with blatant partisan judicial activists, the regime then had purpose of installed judges. That made rulings based on what they felt the law should be, how they wanted it to be coming of the people's law.
▶ 2:25:00Sen. Moody: And when the situation in venezuela continue to deteriorate, and a of constitutional government and governance, there was absolutely no one left to stop them. The conduct of our federal judges and any departure by a judge from the rule of law and an advancement of a purely political end or personal bias must be dealt with, and it is our job here in congress to make sure that that is the case.
▶ 2:25:32Sen. Moody: In fact, it has been said historically impeachment cannot just be a scarecrow. I would like for you to comment on whether or not you believe right now this is happening, that judges are using the bench to shield themselves from predicting, encouraging, expressing a political bias, and having that work into their decision, embracing what they
▶ 2:26:02Sen. Moody: Believe the law should be, what they want it to be rather than what the people's law actually is.
▶ 2:26:12Mr. Luther: Thank you, senator. Unfortunately, I do think it is having more than it should. You mentioned earlier on the judicial conference, chief justice roberts, where he told justice roberts the judges on his court were concerned the president would violate court orders, even though at that point the president had not come in and of course the president has not sense. I think that was a very problematic engagement, because it shows that judges on the D.C.
▶ 2:26:44Mr. Luther: District court are prejudging the president, they are prejudging the president's department of justice on their ability to comply with the law, and so how can the president or his justice get a fair shake in front of those judges in the D.C. district court, knowing that there are members of the bench who have prejudged, that litigate?
▶ 2:27:06Mr. Luther: I think judge rosenberg owes an accounting of which judges told him that, so that we can be sure they are not deciding cases involving the president or his department of justice.
▶ 2:27:21Sen. Moody: My time has expired. Thank you.
▶ 2:27:22Chair Cruz: Thank you. Senator schmitt?
▶ 2:27:26Sen. Schmitt: Thank you for calling this hearing. This is important to the country. Spending time on judge bowes berg, who is an embodiment of a rose and judge, I think the subject of this hearing, a few questions, I called for his impeachment, and I would like to use this time to explain why. Mr. chamberlain, why do federal judges wear black robes?
▶ 2:27:51Mr. Chamberlain: I don't know the answer to that. [laughter]
▶ 2:27:55Sen. Schmitt: It is to symbolize the impartiality that is supposed to come with a very important commission, and do you know what color robes judge bowes bowasberg wears?
▶ 2:28:14Mr. Chamberlain: I would assume black.
▶ 2:28:16Sen. Schmitt: It would seem they are probably blue. I would like to show a judicial complaint against judge boasberg and judge boasberg attended a conference, and while there, judge boasberg attended to improperly influence chief justice roberts in roughly two dozen other judges by strength from the traditional topics to expand his belief that the trump administration would "disregard
▶ 2:28:48Sen. Schmitt: Federal rulings in court," and "trigger a constitutional crisis." this was on march 11 feared what happened on march 15? [no audio]
▶ 2:29:02Sen. Schmitt: That's right. Judge boasberg issue the "turn the planes around" order. Within the next week, judge boasberg was acting on his preconceived belief that the tropic administration would not follow court orders. He issued a temporary restraining order, preventing the government from removing violent tren de aragua terrorists, which the supreme court vacated shortly after.
▶ 2:29:30Sen. Schmitt: Not only that, he forced his way onto the case in the dead of night while he's on vacation, judge boasberg abused his power as chief judge to force himself on to that case. Judge boasberg does not gauge cases involving president trump impartially. He has made it clear time and time again in his rulings and is comment that he can instead of wearing that black robe, where is in fact a blue jersey. -- wears in fact a blue jersey.
▶ 2:30:00Sen. Schmitt: He has forced himself on to hot button cases, two, abusing his power to fear mongering to the judiciary about the specter of the nonexisting constitutional crisis. Three, rubberstamp gag orders on subpoenas against U.S. senators. Four, trying to hold doj lawyers in contempt for a case the supreme court that he has no jurisdiction over. And five, he sits on the circuit judicial council, which would be able to overturn any disciplinary action taken against him, interestingly.
▶ 2:30:31Sen. Schmitt: Article three has not put police itself. That's the reality. We have to be able to check a robe judge through the impeachment process. I did not say that lightly. The house must exercise that power. Professor, it is good to see you again. I appreciate your testimony.
▶ 2:30:47Sen. Schmitt: You are an expert on judicial power in article three states judges should hold their offices during "good behavior." if a judge then scares the case involving that litigant to another judge by reassigning that case outside of normal behavior, is that good behavior or outside of the additional process?
▶ 2:31:07Mr. Luther: That is not good behavior. Violating it would be a violation of judicial duty.
▶ 2:31:16Sen. Schmitt: If a judge were aware of prohibiting the issue, is that good behavior or abuse of judicial power?
▶ 2:31:21Mr. Luther: I think that's the violation of the judicial oath.
▶ 2:31:25Sen. Schmitt: On the flipside, if that judge were unaware of the statute, the fact of the case of the parties being subject yet granted the order anyways, is that good behavior or violation of article three duty?
▶ 2:31:38Mr. Luther: Well, if he did not know about the rule, that would be a little vaguer, but we expect our federal judges to be aware of the law, just as we expect citizens to be aware of the law, and we would hold them accountable even if they were not. In my case, it would probably be a violation of judicial duty.
▶ 2:32:00Sen. Schmitt: Chief justice john roberts says you don't impeach judges you don't agree with, you get the overturned on appeal. With judge boasberg, this is not about disagreeing with some interpretation of the law. Judge boasberg has abused his role as chief judge, which are nonappealable, ministerial acts. He is a robe judge.
▶ 2:32:22Sen. Schmitt: The house should vote to impeach judge boasberg based on the information before then feared we should hold a trial in hold judge boasberg accountable.
▶ 2:32:33Chair Cruz: I will introduce into the record number one, judge boasberg's order, the articles to advance pending articles of judge boasberg impeachment against and judge boardman that was transmitted today and the record with the sentencing. Without objection, all three will be submitted. Senator blumenthal.
▶ 2:32:57Sen. Blumenthal: Thanks, senator cruz. I apologize, I had to go to other hearings and meetings, but when I was here, Mr. vladeck, you were asked a number of questions, and you were interrupted in your responses.
▶ 2:33:16Sen. Blumenthal: I don't know whether that has happened since again, but I would like to give you the opportunity to comment on the question senator cruz was asking as well as any other questions that any of us here have been asking you, where you would like to further elaborate on your response.
▶ 2:33:36Mr. Vladeck: Sure. Thank you, senator, I appreciate it had to close one for my exchange with chairman cruz, I do think it is worth taking seriously the summary of the process that provided by the administrative office in his letter of I believe it is december 1, which I think explains in detail both how that process runs, how it ran at the time, and how numerous factual assertions about how that was not processed in this case, for
▶ 2:34:06Mr. Vladeck: Both members and the witnesses today have been untrue. To the senator schmitt in particular, I think it is worth pointing to the other letter that senator whitehouse introduced into the record that specifically introduces the question of whether there was any impropriety in the assignment of the ggg alien intermittent -- enemies act sent to judge boasberg, and the court has confirmed to be a oh there were no deviations from the standard assignment process, on page four of that letter.
▶ 2:34:35Mr. Vladeck: I think the point that should loom over all of this is I do think there are rich conversations to be had about randomized case assignments for future across the federal judiciary, as with my exchange with senator hirono. There's questions the justice department should meet in all indio's and I think there are rich conversations about who should be able to challenge those orders when they are signed by a federal judge.
▶ 2:35:04Mr. Vladeck: Those conversations are the ones to me we ought to be having today I'm not trying to disport the record to place the -- distort the record to place the blame on a judge who by all accounts is by the book.
▶ 2:35:10Sen. Blumenthal: For me, the essential question is the one senator whitehouse asked, about the distinction between substantive decisions and ethical or misconduct that is the basis for potential impeachment.
▶ 2:35:31Sen. Blumenthal: But in none of the impeachments so far in the history of the united states have any centered on the substantiative outcome of a judge's ruling. And I take to heart and the comments made by chief justice roberts. Would you agree?
▶ 2:35:50Mr. Vladeck: Would. I would even add to chief justice roberts chief justice rehnquist, who in his book recounts the narrative of the impeachment and the unsuccessful trial of case, talks about the significant of the significant subsequent acquittal of justice chase, and some of the eight articles of impeachment were related to the specific outcomes
▶ 2:36:22Mr. Vladeck: Of cases. Chief justice rehnquist in his book says the fact that the senate did not conclude that that was the ground and that was removing a supreme court justice has been a critically important, I'm paraphrasing, a critically important feature of the judicial independence we have enjoyed it seems to me that judicial misconduct happens.
▶ 2:36:44Mr. Vladeck: We are all familiar with the recent case of former judge kindred in alaska, but there are processes in place to handle those cases when they are appropriately raised versus just these kinds of innuendo and allegations we see today.
▶ 2:36:58Sen. Blumenthal: Finally, I would just comment I think it has fairly been stated that the purpose of this proceeding more than anything else is to intimidate and threaten the public servants, and they are public servants. Many take a pay cut.
▶ 2:37:22Sen. Blumenthal: They put themselves in difficult positions come in even under threat, which cannot be condoned, but that intimidation often can have an effect. I clerked for two judges, one a district court judge from of the other a supreme court justice, others in this room have as well. And we know that a congressional hearing, even though an impeachment may seem completely unrealistic, can have an effect. Do you agree?
▶ 2:37:51Mr. Vladeck: I do, and I think it is unfortunate that with the limited resources this committee has come of that we are having this conversation as opposed to even the other ones, which I believe are how we can make the ball more protected in all of these cases, to ensure what many people in this room might view as judicial misconduct has meaningful revenues, aid arbiter -- remedies, a judicial arbiter, because congress does not punch.
▶ 2:38:19Sen. Blumenthal: Thank you.
▶ 2:38:22Chair Cruz: -- >> can I make a closing, before you wrap up?
▶ 2:38:31Chair Cruz: Sure Sen.
▶ 2:38:40Whitehouse: . We have not seen the government process that supported its request to judge boasberg for the nondisclosure order. That would be something that I think you could well ask about, and jack smith, the prosecutor who asked for those nondisclosure orders, has offered to testify. So we are not in a position where we are unable to obtain information and therefore can speculate at will as to what it might be, we actually can obtain that information, and we can find out from the house committee, is very much looks
▶ 2:39:11Whitehouse: Like his concern in getting the nondisclosure order was not that there would be misconduct by the subject of the order, the senator, but there was a pattern and practice of misconduct by trump's election conspiracy to intimidate witnesses, to interfere with evidence, and to try to interfere with the investigation. And I'm more than happy to have him come in and explain what was said behind that.
▶ 2:39:42Whitehouse: When we don't know it and are just speculating, I think it is really irresponsible to lay an enormous board -- burden of alleged misconduct on a judge when the actual answer of what he was told and what he was told it is available to us. We should do that. The second point I want to make is that just recently, with my colleagues read from a complaint against judge boasberg. And it is worth noting that that complaint was made by attorney general gandhi.
▶ 2:40:14Whitehouse: If I -- attorney general bondi. If I am right that there is a multipoint pressure campaign on judge boasberg, being brought to bear on him, because they don't want the contempt proceedings he is pursuing to go forward, then a complaint that has been brought by the attorney general whose department is the subject of that contempt
▶ 2:40:45Whitehouse: Proceeding has enormous conflict of interest and bad motive potential. It is a design to -- an allegation of misconduct against the judge in order to affect his ability to follow through on a contempt proceeding? That is a pretty wrongful motive, in my view. And we also don't have any motive of what has become of that complaint. It may have no merit whatsoever.
▶ 2:41:16Whitehouse: Just on its face, it looks to me nonmeritorious. So as long as we are going to bring an allegation like that into this proceeding, I think it is only fair to point out the conflicts of interest behind the individual making the allegation, and the fact that that allegation, with, no record here that there is any truth to the allegation at all. Indeed, it is under consideration.
▶ 2:41:46Whitehouse: And the judge boardman consideration has not been filed. I leave those as my thoughts.
▶ 2:41:56Chair Cruz: I will note that multiple democrats, including professor vladeck, claimed that the purpose of this hearing was intimidation could I do find irony other than that, particularly given the last four years we seen senate democrats engage in a shameless effort at intimidation, that featured among other things chuck schumer standing on the steps of the supreme court, threatening to "unleash the whirlwind," threatening violence, calling out justices by name and
▶ 2:42:28Chair Cruz: Threatening violence if they ruled in the dobbs case in a way that democrats did not like. There's a reason that the by department of justice did not enforce 18 usc section 1507, because every democrat on this committee agreed with the violent protesters committing felonies, they did not like the decision, they wanted judges intimidated.
▶ 2:42:52Chair Cruz: And I would point out the ranking member king's great joy slandering justice clarence thomas. . He has done so in this hearing room more times that I can count. That is an open intimidation campaign cheered on by left wing darknet money. It is my opinion that justice clarence thomas is one of the finest jurists to have ever sat on the bench, and the intimidation effort against him is utterly shameless.
▶ 2:43:19Chair Cruz: One of the more ironic ones is that he accepted travel at a time the rules did not require disclosure of travel without acknowledging that left-wing justices like stephen breyer accepted much, much more travel from left-wing democrat billionaires, and yet they are happy to engage in hypocrisy. At the end of the day, this is not about generically disagreeing with particular marriott ruling.
▶ 2:43:49Chair Cruz: Of judges this is about two judges whose behavior violated the judicial -- I would note number one, judge boasberg. Not a single democrat on this committee nor professor vladeck could present in a basis for his signing these orders concluding that 20% of the republicans in the senate would violate the law. And there's a reason for that. He did not know who the hell he was signing this about! Understand this judge signed an order.
▶ 2:44:18Chair Cruz: You at home, if you voted for donald trump, understand this partisan hack would have signed this gag order for you, too. The only thing he knew about it is it is a republican, and that may be fine if you are a wild eyed partisan, if you are a loudmouth on social media, that is not fine if you are an article three judge, appointed by the president, confirmed by the senate. You have an obligation to follow the law.
▶ 2:44:45Chair Cruz: I asked professor vladeck, is there any conceivable basis on fact, given what he knew, and he agreed, if the justice department did not present a factual predicate, I believe they did not, that this was a violation of a judicial vote. Now, senator whitehouse has said let's bring jack smith into testify. Fabulous. Be careful what you ask for. Clearly the talking points when out to senate democrats.
▶ 2:45:16Chair Cruz: Let's call jack smith before this committee. I promise you, jack smith is coming. Chairman grassley has made clear he will testify under oath in front of this committee as soon as the diligence and deposition process is over. But that will happen, and I would like it to happen sooner rather than later, and you had better believe -- I'm actually quite glad, because senator whitehouse said he would like to see jack smith's prosperous evidence to justify those subpoenas.
▶ 2:45:45Chair Cruz: I would ask senator whitehouse, would you join me in a bipartisan request to the department of justice to hand over immediately to this committee?
▶ 2:45:51Sen. Whitehouse: I would be glad to work with senator durbin and the chairman on that. I think they would have the wheel on that. I believe is actually ranking member durbin who first proposed it.
▶ 2:46:03Chair Cruz: He has not proposed handing the information over, and indeed I want to see every bit of that information. I will also say, a prediction I made about judge boardman, judge boasberg, my democrat colleagues can get away with screaming trunk, maga== trump, maga,
▶ 2:46:33Chair Cruz: January 6, at least you have partisan language in bells you can ring. Judge deborah boardman, it says something that every democrat on this committee is too embarrassed to defend in any way, shape, or form the merit of her indefensible ruling. Incest something that not a single democrat says her ruling -- it says something that not a single democrat says her ruling was now an abomination a complete dereliction of her judicial duty. By the way, nicholas roski pleaded guilty.
▶ 2:47:04Chair Cruz: There is no dispute. He got on a plane with a gun, a knife, and intention of harming justice brett kavanaugh, not just justice kavanaugh but his wife and young children. And every democrat who claims violence is wrong against judges, just one of you, stand up and say it is grotesque to deviate downward by 22 years for a left-wing jogged to say, --
▶ 2:47:35Chair Cruz: Left-wing judge to say, "fine by me." you've given it to an attempted murder, not just murder, assassin. They don't review every sentence in america. That's true. If you murder someone in central park, we will not review that.
▶ 2:47:53Chair Cruz: If you attempt to assassinate a supreme court just as the stated intent and -- intention of changing the outcome, my democrat colleagues love the word "insurrection," there's a word for that, that is an actual insurrection. That is attempting, through violence and murder, to overturn a branch of our government and change the law, and not a single democrat here can screw up the courage.
▶ 2:48:20Chair Cruz: They can say, "oh, all violence is wrong," and yet judge boardman's stated reason for letting this psychopath out at age 35 is, well, he says he's transgender. And I guess in today's democrat world, if you say you are transgender, no problem if you try to assassinate supreme court justices, because our party cares more about gender identity than the rule of law.
▶ 2:48:48Chair Cruz: Alice in wonderland would truly say we have gone through the looking glass. I will say for senators here, written questions can be submitted to the record until wednesday, january 13, at 5:00 p.m. >> can I take a moment to defend my colleagues?
▶ 2:49:04Chair Cruz: You can as soon as I lay out. I will ask the witness is to answer and return to the committee january 7 at 5:00 p.m. Go ahead, senator.
▶ 2:49:13Sen. Whitehouse: Two things, one, while a legal proceeding is going and a notice of appeal is going on judge boardman's sentencing, having been a prosecutor, even from the prosecutorial side, I do not think that hectoring the judicial appellate process from congress is appropriate or helpful. It is an ongoing process.
▶ 2:49:40Sen. Whitehouse: The second is, you said that none of us have presented any basis by which judge boasberg could have justified the ndo' s. You were given three respects, I'm happy to pursue that. Second, we can get answers from jack smith. Why did he say, what did they know?
▶ 2:50:06Sen. Whitehouse: And the third is that he -- it is not hard to deduce from the testimony in the house that his rationale for allowing that was that the neutron conspiracy had a track record of interfering with investigations and attempting to intimidate witnesses an established track record.
▶ 2:50:33Sen. Whitehouse: So I have never done a case involving a sitting president, but I've done cases involving criminal groups. And the fact that people's total records have been fought and a non-disclosure orders has been sought can often mean that the danger in the case is not that those witnesses will misbehave, is that the subject of the criminal investigation will
▶ 2:51:03Sen. Whitehouse: Endeavor to interfere with those witnesses, tamper with those witnesses, destroying related evidence to what those witnesses might say to try to undermine the investigation. It is at least plausible that the entire responsibility for the non-disclosure order was foreseeable misconduct by donald and his and not
▶ 2:51:35Sen. Whitehouse: Any foreseeable misconduct by colleagues. Thank you.
▶ 2:51:36Chair Cruz: And I would know that senator whitehouse's novel defense there, which is that donald trump is engaged in a national conspiracy, a longer version of "orange man bad," that might conceivably justify a nondisclosure order to president trump. I don't think it would, but he conceivably wicked you are suggesting it relates to his conduct, except -- hold on.
▶ 2:52:04Sen. Whitehouse: I've got to go because I'm due on the floor.
▶ 2:52:07Chair Cruz: I will point out that judge boasberg did not know, allegedly did not know who the targets work, which means it was any of 330 million americans he had no idea, yet he was willing to enter refining with no basis of fact. If you don't know who it is, you cannot have a basis for facts, but he did not care, because republicans bad, and senator hirono said, well, gosh, the fact that you spoke with president trump on the phone.
▶ 2:52:36Chair Cruz: I want to confess, I spoke with president trump on the phone the day before yesterday. If that is sufficient to subpoena the phone numbers of any members of the united states senate, then we are separating the powers of the rule of law -- I want to make a prediction.
▶ 2:52:52Chair Cruz: The letter I sent today the speaker of the house urging that judge boasberg and boardman be impeached, I believe the house will impeach both of them, and I believe both of those impeachments will go to the senate, and my colleagues on the democrat I will have every opportunity to make all of these arguments in the trial that we have, although I will tell you, particularly for judge boardman, it out to be ominous foreshadowing that not a single democrat was willing to defend her in the first time can we will see what happens when it is an actual impeachment trial.
▶ 2:53:22Chair Cruz: With that come of witnesses are thanked again, and this hearing is concluded. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap.org]