DAILY CALLER NEWS FOUNDATION—An Obama-appointed judge may have violated federal law by greenlighting a Biden Department of Justice effort to secretly secure Republican senators’ private cellphone data, legal experts say.
Chief Judge of the D.C. District Court James Boasberg signed orders in 2023 preventing cell phone carriers from notifying 11 Republican members of Congress about special counsel Jack Smith’s subpoenas seeking their cell phone data from Jan. 4 and Jan. 7, 2021.
The subpoenas were part of Smith’s investigation to build his 2020 election case against President Donald Trump. They sought call “detail records for inbound and outbound calls, text messages, direct connect, and voicemail messages” from Republican members, though he did not request contents of any messages, according to records released by Senate Judiciary Chair Chuck Grassley.
The judge claimed disclosing the subpoenas could “result in destruction of or tampering with evidence” to justify keeping them hidden, records show.
These orders could violate a federal law if they involved an “official” phone line, Mike Fragoso, who served as chief counsel to former Senate Republican Leader Mitch McConnell, noted.
Federal law states that communications providers for Senate offices “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.”
“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,” Fragoso wrote on X.
A media liaison for the judge declined to comment.
“Safe bet: All the legal ethics ‘experts’ trotted out on CNN who mercilessly hounded @JeffClarkUS and @DrJohnEastman for giving legal advice around Jan. 6th will be MIA on the issue of the proper discipline for actual defiance of a federal statute by a biased anti-Trump judge,” Heritage Foundation Vice President of Domestic Policy Roger Severino wrote on X.
Smith sought records from Sens. Ron Johnson of Wisconsin, Lindsey Graham of South Carolina, Josh Hawley of Missouri, Dan Sullivan of Alaska, Ted Cruz of Texas, Marsha Blackburn of Tennessee, Bill Hagerty of Tennessee, Cynthia Lummis of Wyoming, Rick Scott of Florida and Tommy Tuberville of Alaska, along with Pennsylvania Rep. Mike Kelly.
“Congress enacts laws,” Empower Oversight Founder Jason Foster wrote on X. “The perma-Executive and Judicial Branches simply ignore them. If your elected Congress can’t or won’t control unelected bureaucrats in DC, then representative gov’t is merely an illusion.”
AT&T and Verizon both received subpoenas, though AT&T did not comply.
“In May 2023, Special Counsel Smith sent AT&T a grand jury subpoena that included a request for phone records associated with AT&T accounts for two other members of Congress,” the company wrote in an Oct. 24 letter to Grassley. “However, when AT&T raised questions with the Special Counsel Smith’s office concerning the legal basis for seeking records of members of Congress, the Special Counsel did not pursue the subpoena further, and no records were produced.”
Verizon produced information because the subpoena was “facially valid” but noted it would be making some changes to its practices going forward, according to the company’s letter to Grassley.
Cruz called on the House to impeach Boasberg, an Obama appointee, during a Wednesday press conference.
“Judge Boasberg put his robe down, stood up and said, ‘Sign me up to be part of the partisan vendetta against 20% of Republicans in the Senate,’” Cruz said. “Mark my words: there will be accountability.”
Boasberg’s order amounts to “legal slander,” Sen. Lindsey Graham said Friday, adding that he “would like to know the factual predicate for issuing the gag order.” He called for a “Watergate-style investigation” on potential misconduct by both Smith and Boasberg.
“My carrier, Verizon, was extremely irresponsible by complying with this subpoena,” Graham said in a statement Friday. “Instead, they should have followed AT&T’s example and declined to turn over the records because it is a violation of the speech and debate clause of the U.S. Constitution. I also expect the House of Representatives to investigate Judge Boasberg’s potential misconduct, which could be grounds for his impeachment.”
“Jeb Boasberg should definitely be impeached by the House of Representatives because not only are his rulings lawless, extremely lawless, they’re extremely dangerous,” Article III Project President Mike Davis told Laura Ingraham on Friday. “This is part of a pattern.”
Several members of Congress are already calling to impeach Boasberg, with Republican Texas Rep. Brandon Gill indicating Wednesday that he is “working” on articles of impeachment.
Gill previously introduced articles of impeachment against Boasberg in March after the judge ordered the Trump administration to turn around planes carrying alleged Tren de Aragua gang members to El Salvador, though the effort has not moved forward.
“The @HouseGOP should act swiftly to impeach Boasberg as well as other indefensibly lawless judges like Boardman (reduced sentence for would be killer of Kavanaugh because he’s ‘trans,’” Republican Texas Rep. Chip Roy wrote Friday on X.
Republican Missouri Sen. Eric Schmitt also called for Boasberg’s impeachment, writing Friday he is “openly biased, gone rogue, and likely broken the law.”
Smith’s attorneys wrote in an Oct. 21 letter to Grassley that the “subpoena for toll records was entirely proper, lawful, and consistent with established Department of Justice policy.”
“Although you have not reached out to us to discuss this matter, we are compelled to correct inaccurate assertions made by you and others concerning the issuance of a grand jury subpoena for the toll records of eight Senators and one Member of the House of Representative,” attorneys Lanny Breuer and Peter Koski wrote on Smith’s behalf. “Mr. Smith’s actions as Special Counsel were consistent with the decisions of a prosecutor who has devoted his career to following the facts and the law, without fear or favor and without regard for the political consequences.”
Smith was forced to drop his case after Trump won the 2024 election.
