Gag Order on FBI’s Arctic Investigation Defended

This week, a senior official from a federal court stood up for Judge James Boasberg’s gag order, which restricted subpoenas related to the FBI’s investigation into the Arctic ice situation. The official argued that the chief judge in Washington, D.C., likely wasn’t aware that these subpoenas were aimed at members of Congress.

The Administrative Office of the Federal Courts pointed out that it’s common for the chief judge to issue gag orders without questioning the Justice Department’s requests. This includes the period linked to former special counsel Jack Smith’s electoral charges against President Donald Trump.

In a letter first obtained by a news outlet, Robert Conrad Jr. from the administration informed Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) about Boasberg’s situation.

Interestingly, Republicans are divided on how to hold people accountable regarding the “Arctic frost” issue, yet critics haven’t proposed a strong alternative.

The letter was a response to inquiries from Mr. Grassley, Sen. Ron Johnson (R-Wis.), and Rep. Jim Jordan (R-Ohio), who wanted clarity on why a one-year gag order was placed, which stopped the phone company from informing Republican lawmakers that it had been subpoenaed in 2023.

Conrad noted that he couldn’t specifically address the gag orders or subpoenas due to some materials being sealed but offered to help lawmakers “understand the practices involved” during that time. He mentioned that gag order requests usually don’t come with detailed subpoenas but simply identify targeted accounts with generic indicators like phone numbers, making it unclear whether a number belongs to a member of Congress.

Full Letter Available for Review

Grassley reacted critically to the latest information from the court. He took issue with the Biden Justice Department for seeking a gag order without informing the judge about its implications for a member of Congress.

He pointed out that while the Justice Department’s Public Integrity Division allowed Smith’s team to issue subpoenas, it also cautioned against disregarding concerns lawmakers raised about the Constitution’s protections regarding speech and debate. Nonetheless, according to Grassley, Smith still went ahead and subpoenaed Congress without updating the court about their involvement.

Grassley described Smith’s lack of transparency as “deeply troubling” and insisted that there must be accountability for such actions.

In light of a 2024 inspector general report, the Justice Department revised its policy to mandate that prosecutors must notify courts when seeking gag orders against members of Congress. This allows judges to consider these implications before making their decisions. However, Smith’s subpoena was initiated before this policy change.

These developments—and the gag order that revealed them—have ignited criticism from members of Congress who feel the Biden Justice Department is unfairly monitoring them over their supposed roles in efforts to overturn the 2020 election. Some, like Sen. Ted Cruz, have been particularly vocal and were supposed to lead a hearing on Boasberg’s impeachment case, which had to be postponed. It’s worth noting, though, that judges are rarely impeached and usually only for serious crimes like corruption.

Responses from Lawmakers

Johnson expressed frustration after reading Boasberg’s letter, calling the judge’s refusal to answer questions about the gag order “an affront to transparency.” He urged Boasberg to lift the seal that’s preventing him from addressing questions from Congress and provide a full account of his actions.

As the chief judge in D.C. federal courts, Boasberg has authorized several gag orders, which prevented phone companies from disclosing information regarding over a dozen congressional members connected to Smith’s subpoenas.

The records sought by Smith included specific details like call times, messages, and the parties involved in communications but did not cover the content of those communications. Smith defended these subpoenas as being in line with Justice Department policy and considered them “totally appropriate.”