Chief Justice James Boasberg?

Officially, John Roberts is chief justice of the United States, an office he has held since he was nominated by President George W. Bush and confirmed by the U.S. Senate in 2005. As a practical matter, however, the true chief justice could be D.C. Circuit Judge James Boasberg. It’s worth dwelling a bit more on Boasberg’s puzzling actions last month in the case of Kevin Clinesmith, formerly a lawyer with the FBI’s national security and cyber law division.

Clinesmith in August pleaded guilty to altering an email to show that U.S. Navy veteran Carter Page was not a CIA asset, when in fact he was. That exposed Page, an American citizen who worked with Donald Trump’s 2016 presidential campaign, to surveillance under the Foreign Intelligence Surveillance Act.

For this crime, Clinesmith faced a maximum of five years in prison and a $250,000 fine, but he got only a year’s probation, a small fine, and community service. Boasberg told the court the allegedly remorseful Clinesmith had suffered by losing his job and facing the media “hurricane,” a curious choice of words.

The FISA warrant to surveil Carter Page, Boasberg explained, would have been approved even without Clinesmith’s “misstatement.” Judge Boasberg ought to know.

James Boasberg (Wikicommons)

In 2014, John Roberts appointed Boasberg to the FISA court, and since January 2020, Boasberg has served as presiding judge of the FISA court. That body holds a distinct advantage over the U.S. Supreme Court, which operates in public, with rulings and opinions endlessly analyzed. None of that for the FISA court, but the Clinesmith case briefly lifted the robes.

Boasberg knew the court would have approved the warrant on CIA asset Carter Page without Clinesmith’s falsification. So Boasberg doubtless signed off on it. He then slipped back into his circuit court robe and let Clinesmith off with a gentle tap on the wrist. This ruling has no parallel on the U.S. Supreme Court.

Last June, the high court refused to hear a case on “qualified immunity” for police officers, which makes it difficult to sue cops for misconduct. That done, John Roberts, Elena Kagan, Sonia Sotomayor, et al. could not slide down to a lower court and participate in the sentencing of the cops involved in the death of George Floyd. Fair to say, the presiding judge of the FISA court holds a clear advantage.

Unlike the Supreme Court and other federal courts of appeal, the Senate does not hold hearings to determine whether an appointee is qualified for the FISA court. After the Clinesmith case, people might wonder about James Boasberg, a Yale law alumnus who studied history at Oxford.

Clinesmith perpetrated a serious crime but Boasberg called it a “misstatement.” As he also told the court, the falsification was the “only stain on the defendant’s character that I have been able to discern.” Trouble is, since Clinesmith pleaded guilty in August 2020, in January 2021, the former FBI lawyer was no longer a “defendant.” At that point, as any lawyer or journalist should know, Clinesmith was an admitted criminal awaiting sentence.

Boasberg gave Clinesmith zero jail time and even spared him a courtroom lecture about his betrayal of the FBI, Justice Department, and the Constitution he swore to uphold. All told, Boasberg’s clearly biased performance raises questions about the FISA court over which he presides.

“The FISA court is a judicial body with no parallel in American history. A group of judges operating in complete secret and issuing binding rulings based solely on the government’s arguments.” Was that perhaps Ted Cruz, Mike Lee, or Rudy Giuliani? Sorry, no. It was Senator Ron Wyden (D-Ore.) back in 2013. In the same proceeding, Senator Richard Blumenthal (D-Conn.) said the FISA court “exercises vast invisible power.”

What could possibly go wrong?

“FISA was originally enacted in the 1970s to curb widespread abuses by both Presidents and former FBI officials of bugging and wiretapping Americans without any judicial warrant,” Senator Patrick Leahy (D-Vt.) testified in 2002. Even so, the FISA process failed to pick up the late Senator Ted Kennedy’s (D-Mass.) covert collaboration with the Soviet Union in a failed attempt to derail Ronald Reagan’s reelection campaign in 1984. As Senator Arlen Specter (I-Penn.) also testified in 2002, the FISA process failed to detect the terrorists of September 11, 2001.

“The failure to obtain a warrant under the Foreign Intelligence Surveillance Act for Zacarias Moussaoui was a matter of enormous importance,” Specter said. If American officials had gotten into Moussaoui’s computer, and followed up on reports of terrorist flight training, Specter said, “9/11 might well have been prevented.” It wasn’t.

In a similar style, the FISA court looked the other way at a serious crime by FBI lawyer Kevin Clinesmith. James Boasberg makes a strong case that the nation’s true chief justice is the presiding judge of the FISA court. That secret body is America’s true robed politburo. As the Washington Post says, democracy dies in darkness.

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