GOP senators threaten to impeach judges who rule against Trump

The GOP ratcheted up their criticism of — and pressure on — the federal judiciary Wednesday, arguing at a Senate Judiciary Committee panel that some of the judges who have ruled against President Donald Trump’s administration deserve to be impeached. 

Even as the judiciary faces increasing threats of violence, Republicans on the Federal Courts, Oversight, Agency Action and Federal Rights subcommittee levied threats of removal against judges they disagree with. 

In his opening statement, subcommittee chairman Sen. Ted Cruz (R-Tex.) laid out an argument for Congress to impeach judges whenever Congress believed they had overstepped their bounds, arguing that Judge James Boasberg, the Chief Judge for the U.S. District Court for the District of Columbia, and Judge Deborah Boardman, who sits on the U.S. District Court for Maryland, had done so in recent cases. 

“Judges enjoy ‘good behavior’ tenure enforced by Congress through impeachment,” Cruz said. “A judge who ceases to meet the standard of good behavior, well ceases to hold office.” 

Cruz said he sent a letter to Speaker of the House Mike Johnson (R-La.) ahead of the hearing, asking that the chamber file articles of impeachment against both Boasberg and Boardman. 

Sen. Sheldon Whitehouse (D-Conn.), the subcommittee ranking member, responded that even if one accepts that Boasberg and Boardman had misapplied the law, “appeal is the remedy,” not impeachment.

“Impeachment is a remedy for actual misconduct, as was the case with the last judge who was impeached,” Whitehouse added. “So when I first heard of this hearing about impeaching judges for misconduct, I thought maybe we’d get answers about [Justice] Clarence Thomas paying his taxes.” 

Whitehouse has long called for the Department of Justice (DOJ) to investigate Thomas for potential tax violations related to sweetheart loans given to him by wealthy friends. 

Removing a federal judge based on the substance of their rulings — rather than evidence of actual “Treason, Bribery, or other high Crimes and Misdemeanors” as required by the Constitution — would be a first, as Georgetown Law School professor Stephen Vladeck testified. 

“Since the Senate acquitted Justice Samuel Chase at the end of his 1805 impeachment trial, 13 federal judges have been impeached — none for the substance of their rulings; for claims of partisan bias; or based on assertions that they were somehow ‘rogue’ or ‘activist.’”

Impeaching judges for those reasons would undermine judicial independence, Vladeck added. 

It’s unclear how serious Cruz and other Republicans are about pursuing impeachment against judges they dislike. Opening the door could encourage Democrats to go after every Republican-appointed judge or justice for decisions that are deeply unpopular with the public, like those striking down abortion protections, gun control provisions, and campaign finance reforms. But merely raising the specter of impeachment could influence how judges perform their duties, experts warn. 

Threats against judges have risen in recent years, and those threats spike whenever Trump or his allies attack their decisions. White House Deputy Chief of Staff Stephen Miller has called adverse rulings “judicial insurrection,” and Deputy Attorney General Todd Blanche has said the DOJ is at “war” with federal courts, while Trump has at times called judges “evil,” “corrupt,” and “a RADICAL LEFT LUNATIC.” 

Much of Trump’s anti-judicial vitriol has been directed at Boasberg, who was first appointed to a local bench by President George W. Bush and later promoted to the federal judiciary by President Barack Obama. 

Boasberg became a right-wing target after ruling persistently against the Trump administration in lawsuits challenging the government’s attempts to deport Venezuelans to an El Salvadorian prison without due process. After the administration appeared to repeatedly ignore his orders, Boasberg initiated contempt proceedings in the spring; that probe is currently paused as the D.C. Circuit Appeals Court weighs whether he has the power to investigate or whether the matter must be referred to the DOJ. Attorney General Pam Bondi then filed a misconduct complaint in July against Boasberg. 

Boasberg also authorized subpoenas and nondisclosure orders in special prosecutor Jack Smith’s investigation into Trump’s attempt to obstruct the 2020 election, which included phone logs of GOP lawmakers who were allegedly abetting that effort. After Texas Republican Rep. Brandon Gill filed impeachment articles against Boasberg in November, a handful of GOP Senators called for his suspension. 

George Mason Law Professor Robert Luther echoed Cruz’s comments, arguing that impeachment was a “political proceeding,” and that it is up to the Senate — not the U.S. Supreme Court or the agreed upon rules of criminal procedure — to decide what counts. Luther pointed to Federalist No. 65, where Alexander Hamilton argued impeachable offenses are those the “misconduct of public men,” cause “injuries done immediately to society itself,” and so the Senate “can never be tied down by strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges.”  

Out of the 15 judges the House has ever impeached, four were accused of abusing their judicial powers, Luther noted, arguing this provides precedence for impeaching someone like Boasberg. None of those four judges were convicted (one resigned before trial, while the rest were acquired by the Senate).

Will Chamberlain, senior counsel at the reactionary Article III Project, focused his testimony on Boardman. Last year, Boardman sentenced the person who pleaded guilty to attempting to assassinate Justice Brett Kavanaugh to 8 years in prison, even though sentencing guidelines suggested a term of 30 years to life. Chamberlain argued this was no mere short sentence by a soft-hearted judge, but rather misconduct that subverts judicial independence by ratifying the would-be assassin’s conduct “as a garden-variety federal crime… sufficient to justify her impeachment.” 

Sen. Richard Durbin (D-Ill.) noted that Chamberlain’s boss, Article III Project founder Mike Davis, has repeatedly lashed out at judges and other officials in profane social media posts. 

Amid all the promises of violence, Wednesday’s hearing was particularly ill-timed, Vladeck argued. 

“Given those stakes, it seems to me that this Subcommittee should be far more troubled by those attacks — and the threats they already have provoked and are likely to provoke going forward — than by rulings from a pair of judges with which some of the members may disagree,” he said. “At the moment, it seems especially irresponsible for this Subcommittee to be devoting its precious time and resources to a hearing that is likely to only exacerbate the executive branch’s disturbing efforts to undermine public faith in the lower federal courts — rather than to push back against them.”

Large segments of the legal firmament disapprove of efforts to impeach judges. During the hearing, Whitehouse read into the record letters from the American Bar Association and retired federal judges stating their opposition. 

In his annual end-of-year report, Chief Justice John Roberts implied conservatives’ calls for impeachment were improper, noting that Chase, a signer of both the Declaration of Independence and the Constitution, prevailed in his Senate trial even though his political opponents held a supermajority, “because many Senators concluded that disapproval of a judge’s decisions provided an invalid basis for removal from office.”

Roberts made similar points in a public statement in March, as Trump attacked Boasberg after adverse rulings then. Roberts also rebuked Trump during the president’s first term in response to his repeated attacks on the judiciary. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts wrote. “[An] independent judiciary is something we should all be thankful for.” 

Roberts’ prior year end report similarly focused on judicial independence at the stark increase in violent threats made against judges.