When Judges Become Prosecutors: The Curious Case of Judge Boasberg
@amuse
Apr 17, 2025
Link:
https://amuseonx.substack.com/p/when-judges-become-prosecutors-the?utm_source=post-email-title/
In a republic governed by laws and not by men, the judiciary’s role is to interpret the law, not invent it. Yet in the curious and increasingly troubling case presided over by U.S. District Judge James Boasberg, the distinction between interpretation and invention has collapsed into something that more closely resembles judicial activism on stilts. In his April injunctions halting deportation flights under President Trump’s lawful immigration crackdown, and his subsequent finding of criminal contempt against Department of Justice officials, Boasberg has not merely tested the outer limits of judicial power, he has bulldozed past them.
Let us begin with the most fundamental problem: Judge Boasberg should not have had this case in the first place. The class action challenge, filed by five Venezuelan men detained for removal under President Trump’s invocation of the Alien Enemies Act, should have been litigated in the jurisdictions where the plaintiffs were physically held. This is not a matter of procedural nicety. It is a matter of jurisdiction. The Supreme Court made this point abundantly clear in its 5-4 decision on April 7, 2025, effectively vacating Boasberg’s preliminary injunctions. The Court ruled that the District of Columbia was not the proper venue. That should have ended the matter. Yet, remarkably, Boasberg refused to acknowledge the decision as anything more than a temporal inconvenience.
Nine days later, on April 16, Boasberg struck again. Citing the original injunctions as binding at the time of the flights, he found probable cause to hold DOJ officials in criminal contempt. That decision, even if technically permissible within the narrow confines of Rule 42 of the Federal Rules of Criminal Procedure, was nevertheless legally indefensible and constitutionally grotesque. His injunctions had been vacated. His jurisdiction disclaimed. His findings rebuked. And yet he now threatens prosecution? One begins to wonder whether this is a legal proceeding or a one-man vendetta dressed in black robes.
To understand the procedural mechanics, Rule 42 does allow a federal judge to initiate criminal contempt proceedings and, if the Department of Justice declines to prosecute, to appoint a private attorney to do so. This occurred most notably in the controversial case of Steven Donziger, an environmental lawyer found in contempt after refusing to comply with court orders. The U.S. Attorney’s Office declined to prosecute, prompting the presiding judge to appoint private counsel. Though challenged as unconstitutional under the Appointments Clause, the Second Circuit upheld the process, and the Supreme Court declined review.
Fine. The machinery exists. But what is legal is not always just, and what is possible is not always permissible in a constitutional order. Boasberg, who would preside over his own contempt proceeding after appointing his own prosecutor to target executive branch officials, embodies precisely the kind of self-referential, self-aggrandizing judicial authority the Framers warned against. The Founders knew from bitter colonial experience that a judge who acts as both adjudicator and instigator is no judge at all.
More disturbing still is the manner in which Boasberg came to control the case. The procedural route by which this matter was assigned to him has raised eyebrows among seasoned court-watchers and constitutional scholars alike. It appears less the product of random judicial assignment and more the result of deliberate forum-shopping by sympathetic parties seeking a reliably activist hand. If these suspicions are confirmed, they would render the entire proceeding suspect and potentially void.
Yet Boasberg remains undeterred. He has shown neither humility in the face of a Supreme Court rebuke nor caution in wielding the extraordinary power of criminal contempt. His insistence that the administration "willfully disregarded" his order ignores the fact that the order itself was unlawfully issued, as affirmed by the nation’s highest court. To claim jurisdiction over contempt proceedings after one's own jurisdiction has been voided is not merely unorthodox, it is incoherent. This is not justice. This is jurisprudential nihilism.
Let us consider the implications. If Boasberg proceeds, the Department of Justice has two clear and compelling responses. First, it should immediately move to have Boasberg recuse himself from any contempt trial on the grounds that he is both a witness and a party to the disputed conduct. Any fair proceeding requires a neutral arbiter. Boasberg, having issued the contested orders and declared the conduct criminal, has disqualified himself. His continued presence on the bench would amount to a judicial kangaroo court.
Second, if Boasberg refuses to recuse, President Trump should exercise his constitutional power of pardon. The pardon exists for precisely such occasions—when the justice system is weaponized for political ends and when good men are threatened with imprisonment for doing their duty. The President need not permit executive officers to be dragged through politicized show trials orchestrated by judges who overstep their constitutional bounds.
We are witnessing something more than mere judicial activism. We are witnessing a breach in the separation of powers. Federal judges are not meant to run immigration policy from the bench. They are not meant to assign themselves cases of national significance. And they are certainly not meant to prosecute executive officials for enforcing duly enacted laws, especially after their own rulings have been vacated.
Judge Boasberg has gone far beyond his remit. His injunctions were defective in law and suspect in origin. His contempt finding is an affront to due process and an insult to the authority of the Supreme Court. His threatened prosecution, if allowed to proceed, will stand as a dark mark on the federal judiciary.
In Federalist No. 78, Alexander Hamilton wrote that the judiciary "has neither FORCE nor WILL, but merely judgment." Boasberg has forgotten this. He has substituted will for judgment, and force for reason. If allowed to continue, his conduct will do lasting damage to the integrity of the federal courts.
It is time for restraint. It is time for accountability. And it is time to remind the judiciary that it is not above the Constitution, nor immune from its constraints. Power must remain tethered to law, and those who untether it must be brought back to shore.
