Public trust in the impartiality of our judiciary is one of the crown jewels of the American republic. Federal judges, unlike politicians, do not stand for election, and the power they wield is immense precisely because it is supposed to be restrained by duty, precedent, and the Constitution. When that restraint fails, the remedy is clear: impeachment. Judge James E. Boasberg’s conduct in approving sweeping subpoenas and gag orders as part of the FBI’s “Arctic Frost” investigation shows a breach of trust serious enough to merit that remedy.
Start with the facts. Republican Sen. Chuck Grassley of Iowa, who chairs the Senate Judiciary Committee, recently disclosed that the FBI’s Arctic Frost probe – launched under the Biden Administration and later folded into Special Counsel Jack Smith’s probe – was far broader than the public was led to believe. The investigation targeted not just a few Trump allies or campaign figures, but “the entire Republican political apparatus.” Agents sought records from at least 430 individuals, groups, and businesses tied to the GOP, issuing some 197 subpoenas in the process. Among those ensnared were Republican senators, former Trump officials, and conservative organizations such as Turning Point USA.
That level of sweep might be understandable, and tolerable, if justified by credible evidence of criminal conspiracy. But Grassley’s review found no probable cause linking this many targets to an identifiable crime. Instead, the evidence points to what Grassley called “the vehicle by which partisan FBI agents and DOJ prosecutors could achieve their partisan ends.” In short, Arctic Frost appears to have been less an investigation into wrongdoing than an exercise in political surveillance.
Boasberg’s role was not tangential. As Chief Judge of the U.S. District Court for the District of Columbia, he personally approved the subpoenas and the gag orders that kept their existence secret. Republican Sen. Ted Cruz of Texas,, whose phone metadata was sought, revealed that AT&T had been forbidden by court order to inform him of the subpoena for at least one year. “If a judge signs an order reaching a factual conclusion for which there is no evidence whatsoever,” Cruz said, “that judge is abusing his power.” Cruz is right.
Judges are not grand jurors, nor are they partisan gatekeepers. Their constitutional duty is to test the government’s assertions before granting its requests to intrude on private citizens. A judge’s signature carries the force of law only because it represents independent judgment. When that independence is abandoned – when a judge becomes a rubber stamp for politically charged investigations – the separation of powers itself begins to erode.
Boasberg’s defenders note that the Chief Judge of the D.C. Circuit routinely handled classified or grand jury matters and that his approvals may have been routine. That is precisely the problem. What should never be “routine” is secret surveillance of political actors without clear, non-partisan justification.
Impeachment is not to be taken lightly. The Constitution reserves it for “high crimes and misdemeanors,” which historically includes serious abuses of office. A judge who repeatedly fails to exercise due scrutiny over politically sensitive investigations fits that description.
Some will object that impeachment of a sitting federal judge risks politicizing the judiciary further. That argument reverses cause and effect. It is precisely because the judiciary must remain apolitical that accountability is essential when a judge steps into politics. Congress impeached and removed Judge Alcee Hastings in 1989 for falsifying evidence and perjuring himself. It impeached and removed Judge Thomas Porteous in 2010 for corruption. Judicial independence is not immunity. The same principle must apply when a judge’s conduct facilitates the weaponization of justice for partisan ends.
The larger question is whether Americans still believe the law applies equally. The Arctic Frost affair is a troubling episode that lends weight to the argument that the law is applied unequally. When subpoenas reach across entire political parties while evidence of actual criminality is not made available for public review, citizens cannot be blamed for suspecting the system is tilted.
Congress cannot restore that trust merely by complaining in hearings or issuing press releases. It must act. The House of Representatives has the authority – and the obligation – to investigate Judge Boasberg’s role, to subpoena the Justice Department’s submissions for his approval, and to determine whether he violated his oath to “administer justice without respect to persons.” If the evidence shows that he violated his oath, the House should pass articles of impeachment, and the Senate should hold a trial. No other mechanism will suffice to reassert the principle that even judges are accountable under the Constitution.
The strength of America’s republic depends on the restraint of those who wield power – especially those who wield it for life. If Boasberg believed it was appropriate to sign orders allowing the FBI and DOJ to harvest the communications of elected lawmakers and political organizations without solid cause, then he has demonstrated precisely the kind of judgment that the Founders feared. The time has come for Congress to redraw the line. Judicial independence requires it. So does the Constitution.
Jenny Beth Martin is Honorary Chairman of Tea Party Patriots Action.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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