Boasberg’s Senate Spying Gag Order Violated Federal Law

Judge James Boasberg, the lawfare fanatic serving as the chief judge of the U.S. District Court for D.C., issued an order intended to conceal the Biden administration’s seizure of Sen. Ted Cruz’s phone records. In doing so, it appears he likely violated federal law.

According to Sen. Chuck Grassley, R-Iowa, as part of the Biden administration’s “Arctic Frost” inquiry dead set on targeting Republicans in battleground states, Special Counsel Jack Smith, who led the get-Trump lawfare for years, “secretly obtained phone record data from at least eight senators and one congressman.”

Smith subpoenaed Cruz’s records through AT&T.

The Biden Department of Justice tried to seize Cruz’s “cell phone communications,” according to the senator, and Boasberg signed off on a “nondisclosure” gag order to AT&T blocking the telecommunications company from notifying Cruz of the seizure for at least a year. According to Boaseberg’s order, obtained by Cruz, “The court finds reasonable grounds to believe that such disclosure will result in destruction of, or tampering with evidence, intimidation of potential witnesses, and serious jeopardy to the investigation.”

There is “precisely zero evidence to conclude that I am likely to destroy or tamper with evidence or to intimidate potential witnesses,” Cruz said. “Zero evidentiary basis for that. This order is an abuse of power. This order is a weaponized legal system.”

But aside from the bogus basis for the gag order, Boasberg actually appears to have violated federal law in issuing the order in the first place.

“If this phone was an official phone (I suspect it was), then this was likely in violation of 2 U.S.C. 6628. If Smith or Boasberg violated that statute, it’s a very serious problem that probably justifies a bar investigation and could predicate an impeachment inquiry,” Mike Fragoso, fellow at the Ethics and Public Policy Center, noted.

The law reads as follows:

Notwithstanding any other provision of law or rule of civil or criminal procedure, the Office of the SAA [Senate Sergeant at Arms], any officer, employee, or agent of the Office of the SAA, and any provider for a Senate office that is providing services to or used by a Senate office shall not be barred, through operation of any court order or any statutory provision, from notifying the Senate office of any legal process seeking disclosure of Senate data of the Senate office that is transmitted, processed, or stored (whether temporarily or otherwise) through the use of an electronic system established, maintained, or operated, or the use of electronic services provided, in whole or in part by the Office of the SAA, the officer, employee, or agent of the Office of the SAA, or the provider for a Senate office.

That law bans gag orders on the collection of Senate data and communications, and requires notice to the Senate to give it the opportunity to stop any subpoenas on separation of powers grounds. The statute also requires that courts stop those subpoenas if the Senate opposes them.

As The Federalist CEO Sean Davis pointed out, “Boasberg issued the illegal gag order precisely to prevent the Senate from going to court to vindicate its rights.” In other words, the Senate would never have been able to stop the surveillance because it never knew about it — and that was the point because “he knew the Senate would have IMMEDIATELY gone to court to nuke the Biden administration’s illegal spying against at least eight U.S. senators.”

Boasberg has abused these nondisclosure orders (NDOs) so much that three Democrat-appointed appellate judges reversed an “omnibus” NDO approved by Boasberg after he violated the Stored Communications Act, which requires a judge, rather than a prosecutor, to determine an NDO is proper after meeting five factors.

“It permitted the government to apply the nondisclosure order prospectively to unidentified subpoenas, and to apply the nondisclosure order to subpoenas directed at a wide and unpredictable range of accounts,” the appellate judges wrote, noting the “unique features” of the widespread NDO.

Of the three branches of government, the judiciary does not have the power of the purse, and it does not have a military — it maintains its legitimacy by executing its duties in a fair, impartial, and lawful manner. While its legitimacy and reputation are already diminished and fleeting — especially because Boasberg and many others are working hard to make sure that is the case — the circumstances call for the other branches (primarily the legislative) to take dramatic action before the judiciary is irreparably destroyed.

Through collusion on get-Trump lawfare, and through the judicial coup undertaken after Trump took office again in January, many low-court judges have shown themselves to be political actors with hackish (often extremely low-IQ) jurisprudence that is hostile to a functioning republic.

They all need to be impeached.

This is a crisis call growing louder in Washington, D.C., with many calling for impeachment openly, and some, including those in government and even some federal judges, doing so behind the scenes.

Although it is unlikely that any of them will be removed by the 67 senators required to do so, they need to be put on notice, fearing for their credibility and careers.

Breccan F. Thies is the White House correspondent for The Federalist. He previously covered education and culture issues for the Washington Examiner and Breitbart News. He holds a degree from the University of Virginia and is a 2022 Claremont Institute Publius Fellow. You can follow him on X: @BreccanFThies.