At a time when the Trump administration recklessly invaded one sovereign country (Venezuela) while essentially trampling on the international order that has existed since the end of World War II, openly ruminated about invading the territory (Greenland) of another sovereign ally, and dispatched its ever expanding ICE militia to shoot Americans in the streets, one might be forgiven for overlooking the overtly political attack on the federal judiciary orchestrated earlier this month by Republican members of the Senate Judiciary Committee. But, the attack in the Senate is noteworthy given that the announced purpose of the hearing was “Impeachment: Holding Rogue Judges Accountable” to “address the rise of judicial lawfare under the Biden Administration.” This was a contentious preamble for a congressional inquiry given that the courts are effectively the only federal institution breathing life into the Constitution and resisting the authoritarian impulses of this administration.
The subcommittee hearing
Senator Ted Cruz (R-TX) called and chaired the Judiciary Committee’s federal courts subcommittee hearing held on January 7th, 2026, to provide a forum for his specious claims that two federal judges—James Boasberg, the chief judge in the District of Columbia and former chief judge of the Foreign Intelligence Surveillance Court, and Deborah Boardman, a district judge from Maryland—should be impeached. Both judges, exercising eminent good sense, declined to appear at Senator Cruz’s spectacle. The proceeding was a transparent extension of the rising tension between the judiciary and the political branches of government reflected in frequently coarse and uninformed criticisms leveled by Donald Trump and other administration officials against judges who have ruled against the administration’s agenda. Confirming the abandonment of the apolitical administration of the law that once characterized the Department of Justice but now seems as quaint as the Latin inscription on the Department’s seal promising that the Department “prosecutes on behalf of justice” rather than serving political power, Deputy Attorney General Todd Blanche recently offered public remarks describing a “war” against the “rogue activist” federal judiciary. Not to be outdone, Attorney General Pam Bondi filed a complaint against Judge Boasberg through the judiciary’s misconduct process, while House Republicans have filed resolutions of impeachment against both Boasberg and Boardman. Senator Cruz was clearly eager to pile on notwithstanding the Chief Justice’s admonition that “impeachment is not an appropriate response to disagreement concerning a judicial decision.”
Judge Boardman’s sole “offense” allegedly warranting impeachment was imposing a 97-month sentence on Sophie Roske (a transgender woman prosecuted under her legal name, Nicholas Roske) for the attempted assassination of Supreme Court Justice Brett Kavanaugh in June 2022. While Ms. Roske’s sentence was substantially below that suggested by federal sentencing guidelines, Judge Boardman, like all federal judges, possessed the discretion to depart from those guidelines where she felt so warranted by the circumstances. Judicial discretion is an essential component of the fair and equitable administration of justice, but the rule of law has been perverted into a rule by authoritarian edict, and Senator Ted Cruz has made it his personal agenda to root out judges who stand in the way.
Judge Boasberg’s alleged transgressions are more reflective of the partisanship that dominated Senator Cruz’s hearing. He has been the target of attacks by Mr. Trump and those loyal to him since frustrating the administration’s efforts to use the Alien Enemies Act to illegally deport ICE detainees to an El Salvadoran gulag, and then initiating an inquiry to determine whether administration officials had defied court orders. But what got Senator Cruz particularly incensed was that, in connection with the FBI’s Arctic Frost investigation into Mr. Trump’s efforts in 2020 and early 2021 to create spurious sets of alternate electors to disrupt President Biden’s assumption of the presidency, Judge Boasberg had signed a series of non-disclosure orders (NDOs) for subpoenas targeting phone records of GOP lawmakers who spoke to Mr. Trump in the days around the Jan. 6, 2021, riot led by Mr. Trump’s supporters at the U.S. Capitol. To be clear, Judge Boasberg did not issue the toll records subpoenas that Senator Cruz finds so offensive—these were subpoenas issued by the grand jury as part of an authorized criminal investigation conducted by the Justice Department. Judge Boasberg simply addressed the government’s motion for the issuance of NDOs to preserve the secrecy of those investigative efforts and, as addressed below, received no substantive information as to the identity of the subscribers associated with the underlying toll records.
Still, this proved too much for Senator Cruz. “No republic can survive if its judges help opposition officials surveil the people’s elected representatives,” he said at the hearing despite acknowledging that he was one of the 9 GOP senators whose toll records were subpoenaed because he reportedly was deeply engaged in scheming with Donald Trump to deny the certification of Joseph Biden’s victory in the 2020 election. Senator Cruz was the first senator to object to the 2020 electoral results and proposed the creation of an investigatory commission to delay certification. As one member of the House select committee that investigated the January 6th attack commented on Senator Cruz’s efforts: “Ted Cruz is a lawyer who knows the difference between factual evidence and idle speculation and he recognized what a fraud Sidney Powell and Rudy Giuliani were perpetrating on the country—and yet he continued to play along with it.”
This is the same Ted Cruz who voted twice to acquit a deservedly impeached Donald Trump whose misconduct on January 6th was supported, as former Special Counsel Jack Smith recently testified, by evidence proving “beyond a reasonable doubt that Mr. Trump engaged in a criminal scheme to overturn the results of the 2020 election and to prevent the lawful transfer of power.” It is the same Ted Cruz whose efforts to corrupt and undermine the legitimate results of that 2020 election led to calls for his resignation and expulsion from Capitol Hill. Indeed, the chairman of Senator Cruz’s ill-fated 2016 presidential campaign later denounced the senator for abetting “an assault on democracy.”
The reality is that Senator Cruz manipulated an official Senate proceeding to serve as part of a campaign to pursue a blatantly partisan agenda designed to smear and intimidate members of the federal judiciary. Any notion that the proceeding served as any sort of legitimate inquiry was extinguished when, prior to gaveling the hearing to order, Senator Cruz already had sent a letter to House Speaker Mike Johnson urging that the House immediately advance “the pending articles of impeachment” already filed in the House against Judge Boasberg and Judge Boardman by those notable constitutional luminaries—Representatives Brandon Gill and Chip Roy.
A fair assessment is that the hearing was a pretense, a show trial for Senator Cruz to air his grievances about Judge Boardman’s sentencing decision and Judge Boasberg’s issuing of NDOs that secured the secrecy of information relating to the subpoenaing of Senator Cruz’s own phone records. Adding insult to injury, Senator Eric Schmitt (R-MO) and law professor Rob Luther—the latter a legal gadfly looking to make a name in the MAGA universe—seized the opportunity provided by Senator Cruz to allege that Judge Boasberg should also be impeached because he had engaged in additional misconduct by deliberately engineering the assignment of the J.G.G. Alien Enemies Act case to his chambers.
The Administrative Office of the U.S. Courts torpedoes the charges
Setting aside the questionable ethics and glaring conflict of interest of potential jurors in an impeachment trial (Senators Cruz and Schmitt) leading the affirmative charge to impeach Judge Boasberg, the record contains two separate letters from the Administrative Office of the U.S. Courts (AO) that, collectively, eviscerate the charges leveled by these sitting U.S. senators.
First, in a letter dated June 18, 2025, addressed to U.S. Representatives Chip Roy, Jim Jordan, and Darrell Issa, the AO clarifies that the case assignments that so exercised Senator Schmitt relating to the J.G.G. Alien Enemies Act matter “were indeed randomly assigned to Judge Boasberg following the district court’s standard case assignment protocols.”
Next, in a letter dated December 1, 2025, the AO reports that: (1) applications for NDOs do not attach the underlying subpoena so that a judge reviewing an NDO (like Judge Boasberg with respect to the Arctic Frost subpoenas) would see only a telephone number associated with the NDO—not the underlying subscriber information; (2) that publicly available documents including a 2024 Department of Justice Inspector General Report show that “Department policy at the time did not require including information in [NDO] applications about whose records are at issue” including, particularly, that “DOJ policy in effect at the time did not require the NDOs filed with the courts to reference … the fact that they related to requests for records of Members of Congress or congressional staffers;” and (3) that DOJ policy permitted reliance on “general assertions about the need for non-disclosure rather than on case-specific justifications” so that the NDO applications sent to the court would not have included case-specific identifying information.
In an ironic twist, the AO noted that in 2023, the House Judiciary Committee considered requiring “meaningful judicial review” of the need for secrecy relating to NDOs sought “in connection with compulsory process for records of Members of Congress.” The measure passed the House 412-0 … but the bill died in the Senate.
Conclusion
In any other time, this aberrant proceeding would have been adequate to recognize that these are empty charges that serve only to threaten the independence of the federal judiciary that the Constitution sought to insulate through its delicate balancing of the separation of powers. Preserving the independence of the judiciary was a particular concern of the Founders as discussed in multiple Federalist Papers. In Federalist No. 47, James Madison observed that the accumulation of all powers, legislative, executive and judiciary in the same hands “may justly be pronounced the very definition of tyranny.” In Federalist No. 48, he warned that the legislature, in particular, posed the greatest risk of encroachment given its expansive Article I powers, including the power of impeachment.
In Federalist No. 65, Alexander Hamilton acknowledged that impeachment is inherently political and likely to agitate the passions of the whole community. Given those realities, Hamilton endorsed the Constitution’s reposing the power to try impeachments in the Senate where the senators’ staggered terms, relative independence, and the requirement for a supermajority for conviction afforded the best chance of neutralizing those temporary community passions. However, Hamilton acknowledged, in Federalist No. 78, that the judiciary constituted the “least dangerous branch of government” whose independence was best preserved by secure compensation and holding office during good behavior. The latter, in particular, was essential because “nothing can contribute so much to [judicial independence] as permanency in office.”
This critical independence of the federal judiciary was put to an early test. In 1803, President Jefferson sent a letter to Maryland Congressman Joseph Nicholson subtly suggesting that the House of Representatives might want to inquire into the “good behavior” of Supreme Court Justice Samuel Chase. Chase was viewed by Democratic-Republicans as a particularly irritating vestige of the Federalist party that they had convincingly defeated in the election of 1804, so, unsurprisingly, Chase, a man that Chief Justice Rehnquist later described as “seriously lacking in judicial temperament,” was impeached in 1804.
Chase was brought to trial in the Senate in February 1805. Conviction seemed assured as the Democratic-Republicans held a commanding 25-9 majority in the Senate. But the closest Chase came to conviction on any of the eight articles of impeachment fell three votes short of the required two-thirds majority. Faced with the opportunity to support their president and advance their political agenda, six Democratic-Republicans opted, instead, to support judicial independence. Chase’s surprising acquittal set an important practical precedent that partisanship and political disagreement were insufficient to constitute the ”high crimes and misdemeanors” required by the Constitution. In the 220 years since Chase’s acquittal, only fifteen federal judges have been impeached – not one of them a Justice of the Supreme Court.
Today, judicial independence is under attack by an administration that thrives on stoking the community passions that Hamilton abhorred, all the while abetted by senators like Ted Cruz and Eric Schmitt who, unlike their 19th-century predecessors in 1805, appear fully prepared to sacrifice constitutional principles and judicial independence for political expediency.
George W. Croner was the principal litigation counsel in the Office of General Counsel at the National Security Agency (NSA). He is a senior fellow at the Foreign Policy Research Institute (FPRI) in its national security program and a member of CERL’s Advisory Council. You can follow him on X (@GeorgeCroner) and find a list of his publications at FPRI.org. Read his full bio here.
Image: Bill Chizek / stock.adobe.com
