New Document Shows Chief Judge Howell Privately Endorsed Jack Smith’s Get-Trump Lawfare
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A Department of Justice briefing released by Sen. Chuck Grassley alleges that Jack Smith’s special counsel team privately communicated with two federal judges overseeing Trump-related investigations-chief judge Beryl Howell and Judge James Boasberg-both obama appointees on the U.S. District Court for the District of Columbia. The document, dated january 13, 2023, suggests these judges were sympathetic to the government’s strategy in executive-privilege litigation and that Howell, in particular, endorsed pursuing the issue in an omnibus filing rather than handling each matter separately.
Key points include:
– Ex parte communications: Normally, judges cannot privately discuss pending litigation with one party without notifying the other. The briefing argues that, while grand jury matters can involve some private discussion, discussing the substance of pending disputes or signaling prosecutorial strategy would cross ethical lines.
– The September 22, 2022 hearing: Howell questioned the idea of consolidating privilege issues, insisting they were highly context-specific and should be addressed individually. The briefing claims she later told the DOJ she “liked” the omnibus approach, a shift that would appear to tilt the process in the government’s favor.
– Lack of a formal record: The documents indicate there was no court reporter or public record of these communications, nor notification to Trump’s lawyers.
– The language used: the report highlights Howell’s alleged expressions of enthusiasm for the DOJ’s strategy as evidence of partiality, raising concerns under judicial codes of conduct about impartiality and integrity.
– Howell and Boasberg’s roles and actions: Howell later ordered Trump aides to testify before the grand jury on her last day as Chief Judge. Boasberg’s private communications with Smith’s team remain less clear, though he has taken other actions unfavorable to Trump-related positions.
– Implications for impartiality: The piece argues that privately endorsing a single litigation strategy in a high-stakes matter undermines the adversarial process,even if some communications may have been technically permissible.
– Consequences and accountability: The author notes impeachment is unlikely to occur given historical difficulty in removing federal judges, but suggests that formal impeachment proceedings should at least be considered to record the concerns.
– About the author: Hans Mahncke, the piece’s author, is described as in-house counsel and the author of a book on Russiagate-related topics.
A Department of Justice briefing document released by Sen. Chuck Grassley shows that Jack Smith’s special counsel team engaged in private communications with two federal judges overseeing Trump-related investigations: Chief Judge Beryl Howell and her successor, Judge James Boasberg, both Obama appointees on the U.S. District Court for the District of Columbia and both known for their outspoken anti-Trump positions.
The document was prepared for then-Attorney General Merrick Garland on Jan. 13, 2023. It was released by Grassley ahead of this week’s Senate Judiciary Committee hearing on the FBI’s Arctic Frost investigation into the aftermath of the 2020 election. Smith took over the investigation in November 2022, and at that point, his team likely engaged in improper communications with the two judges.
According to the briefing document, Smith’s team informed Garland that they had been in touch with Howell and that “She liked our approach of pursuing the executive privilege litigation in an omnibus fashion,” meaning the consolidation of various motions into a single filing rather than handling each separately. The notes record that Howell was aware such a motion was coming “and loves the idea.” A separate entry referenced a forthcoming meeting with Boasberg scheduled for Saturday, March 18, 2023, the day after he became chief judge, taking over from Howell.
Ex Parte Communications
Judges are generally not allowed to privately communicate with one party in a pending case without notifying the other party. However, there are exceptions. In the dispute over President Trump’s executive privilege before Howell, the issues arose in the context of grand jury proceedings. As Chief Judge overseeing grand jury administration, she and the DOJ were technically allowed to communicate without Trump’s lawyers present on matters strictly related to the grand jury. Such communications could include scheduling witness testimony, addressing procedural questions, or resolving other administrative issues necessary for the grand jury to function.
What they could not do in secret was discuss the substance of pending litigation, offer advice on prosecutorial strategy, signal support for one side’s approach, or endorse a plan that would effectively pre-decide disputes between the parties. Expressing enthusiasm for the DOJ’s omnibus strategy in executive privilege litigation falls clearly into that forbidden category.
The Sept. 22, 2022 Hearing
The problem is compounded by the Sept. 22, 2022 hearing before Howell on the executive privilege matter. Three Trump lawyers, Timothy Parlatore, Evan Corcoran, and John Rowley, were present and actively argued that the DOJ had not met the standard to pierce executive privilege. Notably, Howell expressed skepticism about consolidation, stating, “Although consolidation, at first blush, as I said, you know, usually is something I consider pretty seriously, in the privileged context, I am not sure it does anything more than complicate the discussion when each individual has to be looked at individually with — in context and role; so I am just telling you right off the bat.”
If, as Smith’s briefing document claims, Howell later told the DOJ she “liked our approach of pursuing the executive privilege litigation in an omnibus fashion,” it represents a complete reversal. During the Sept. 22, 2022 hearing, Howell had insisted that these very issues were too particularized to be grouped together, telling Trump’s legal team: “The way I deal with privilege issues, it’s so context specific, witness by witness; the specific role of the witness; timing of the communications; scope of the communications; scope of the role — it is so particularized to each witness.” This forced Trump’s team into a defensive posture, preparing for many separate legal battles. Yet by later secretly endorsing the DOJ’s omnibus plan, she green-lit a mechanism to pierce those privileges in bulk, effectively rigging the process in the government’s favor.
The situation is made even worse by the absence of any formal record. There is no indication that these communications were documented, that a court reporter was present, or that Trump’s lawyers were notified.
The Language of Enthusiasm
Even if we assume for argument’s sake that the communications were technically permissible under grand jury administration rules, the language attributed to Howell, saying she “liked” and “loved” the DOJ’s approach, reveals a deeper problem. Judicial impartiality does not mean having no opinions, but these opinions must be formed through the proper adversarial process. Expressing personal enthusiasm for one party’s litigation strategy is not neutral. Under Canon 2 and Canon 3 of the Code of Conduct for United States Judges, judges must act in ways that inspire confidence in their impartiality and perform their duties impartially. Howell’s comments, if accurate, are incompatible with these standards.
This shift in Howell’s stance was as much about timing as legal philosophy. Smith faced a backlog of individual privilege disputes that could have stalled the grand jury for months. By privately endorsing the omnibus approach, Howell gave the prosecution a fast track to resolve these high-profile cases before her tenure as Chief Judge ended.
On her last day in office as Chief Judge in March 2023, Howell ordered a long list of Trump aides to testify before the grand jury. This included Chief of Staff Mark Meadows, advisers Dan Scavino and Stephen Miller, former Director of National Intelligence John Ratcliffe, ex-National Security Adviser Robert O’Brien, and Corcoran, who had appeared before her a few months earlier when she seemed skeptical about any omnibus consolidation.
Howell’s Prior Statements and Conduct
Concerns about Howell’s neutrality are not limited to the conduct described in the briefing document. In 2023, she publicly stated that Jan. 6, 2021 was the result of “big lies” and warned that the country was at risk of drifting toward authoritarianism. After Trump’s January 2025 pardons of Jan. 6 defendants, she rejected the premise of those pardons, writing that “No ‘national injustice’ occurred here, just as no outcome-determinative election fraud occurred in the 2020 presidential election,” while structuring the dismissals in a way that has left the door open to future charges against the pardoned individuals.
In a separate matter, when Trump ordered the suspension of security clearances for Hillary Clinton’s campaign law firm Perkins Coie over its role in advancing the Russiagate hoax, Howell intervened to restore those clearances and made pointed remarks about Trump, including stating that “you cannot be saying that there was nobody involved in the 2016 Trump campaign that had any connection with any Russian,” and that he “really had a bee in his bonnet about it,” referring to Fusion GPS, the firm hired by Perkins Coie to push the Russia collusion narrative.
With respect to Boasberg, the specifics of his private communications with Jack Smith’s team remain unknown. He later permitted Smith to subpoena phone records of House and Senate Republicans. Boasberg has repeatedly clashed with the Trump administration, for instance, over the use of the Alien Enemies Act for deportations. He also attended Trump’s Aug. 3, 2023, arraignment on charges related to the 2020 election as a spectator, despite having no role in the case.
Questionable Impartiality
Whether Smith’s communications with Howell and Boasberg technically violated ex parte rules depends on what was discussed. What the briefing document suggests, however, is that the chief judge privately endorsed one side’s legal strategy in pending litigation, particularly after expressing doubt to the other side in court. That kind of conduct cuts directly against the foundations of fair and impartial judicial proceedings.
Although she is no longer Chief Judge, Howell remains on the court as a senior judge and has continued to take positions that raise questions about her impartiality, including reinstating Perkins Coie’s security clearances. Realistically, however, there is little chance of meaningful consequences. In the history of the United States, only eight federal judges have ever been removed from office, typically for outright criminal conduct such as bribery. Removal would require a two-thirds majority in the Senate, which is not going to happen. That does not mean nothing should happen. At a minimum, impeachment proceedings should be initiated to put Howell’s and Boasberg’s conduct on the record.
Hans Mahncke is in-house counsel at a global business advisory firm. He holds LL.B., LL.M. and Ph.D. degrees in law. He is the author of “Swiftboating America: Exposing the Russiagate Fraud, from the Steele Dossier to the FBI’s Crossfire Hurricane Investigation.”
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