Judicial impeachments over decisions would break long tradition

WASHINGTON — President Donald Trump’s call Tuesday to impeach a federal judge ramps up pressure on the House Republican majority to break with a centuries-old tradition of not seeking to remove judges from the bench based only on their decisions.

Chief Justice John G. Roberts Jr. gave a rare rebuke to a social media post from Trump that said a judge in Washington who ordered a temporary halt to a Trump deportation effort should be impeached.

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in a statement sent to reporters. “The normal appellate review process exists for that purpose.”

But the president’s allies in Congress have already filed at least four impeachment resolutions against judges, following rulings that slowed or temporarily paused Trump’s push to change the federal government. And a House GOP lawmaker reported he added to that list by filing articles of impeachment against the federal judge in Washington.

House Judiciary Chairman Jim Jordan, R-Ohio, and House Speaker Mike Johnson, R-La., have not publicly said they would go forward with them — an action that could set up an extraordinary and historic test of judicial independence and a showdown over the separation of powers.

Johnson’s office on Tuesday did not provide a comment from the speaker. A spokesman for Jordan on Tuesday said, “Everything is on the table.”

Rep. Darrell Issa, R-Calif., who leads a House Judiciary subcommittee on the courts and other topics, stopped short of impeachment in a social media post Tuesday. “TRUMP IS RIGHT TO CONDEMN ROGUE JUDGES,” Issa said. “The Resistance now wears robes.”

Judges are unlikely to be removed even if they are impeached in the House, since Democrats in the Senate have enough votes to block a conviction during any impeachment trial.

Ross Garber, who teaches political investigations and impeachment at Tulane Law School, said it will be impossible to get the necessary votes for a Senate conviction, so “cooler heads will realize impeachment would be unwarranted and ill-advised.”

“Making a wrong decision, even one that is egregiously wrong, isn’t grounds for impeaching a judge,” Garber said. “And, absent something like bribery or other corruption, judges in modern times haven’t been impeached for their judicial decisions.”

Since 1803, only 15 judges have faced impeachment, the last in 2010 on charges of accepting bribes and making false statements under penalty of perjury, according to the Federal Judicial Center.

Frank O. Bowman III, a law professor at the University of Missouri and author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” said the Senate in the early 19th century rejected the notion of impeaching judges based on their rulings, as it would “extraordinarily destructive” to the constitutional design.

Last Congress, the Republican-led House impeached former Homeland Security Secretary Alejandro Mayorkas over Biden administration’s immigration policy and nothing “even remotely close to an impeachable high crime (or) misdemeanor,” Bowman said.

“The problem with the present moment is, given that we have the Mayorkas precedent, I think any judge has to realize that the judiciary is now confronting a Republican House majority that just might do it,” Bowman said.

Impeachments are known to not be judicially reviewable, and House lawmakers have — on a practical, political basis — latitude to impeach officials, he said.

“Fundamentally, the House can impeach anybody for anything they want, if they’ve got the votes to do it,” Bowman said.

In his social media post, Trump assailed the judge, James E. Boasberg of the U.S. District Court for the District of Columbia, as “a troublemaker and agitator.”

“I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!” Trump wrote in the post.

His call spurred another round of support from conservative House Republicans. Rep. Brandon Gill, a Texas Republican who posted on Tuesday that he had filed articles of impeachment against Boasberg, wrote on social media: “We will not tolerate politicized judges unconstitutionally usurping the President’s authority. IMPEACH.”

Trump’s commentary drew a swift rebuke from Rep. Jamie Raskin of Maryland, the top Democrat on the House Judiciary Committee, who said Trump is facing “humiliating legal defeats” and is “lashing out at the judges who have been upholding the Constitution against his lawlessness.”

“He is not calling for the impeachment of any judges who have ruled in his favor,” Raskin said in a statement. “So his rule is clear: either rule in Trump’s favor or face impeachment.”

Past efforts

Last Congress, Rep. Alexandria Ocasio-Cortez, D-N.Y., filed impeachment resolutions in July against Supreme Court Justices Clarence Thomas and Samuel A. Alito Jr., both appointed by Republican presidents. Ocasio-Cortez, in a press release at the time, cited media reports that Thomas and Alito had failed to disclose financial gifts and recuse themselves in certain cases.

“The Constitution of the United States explicitly outlines a higher standard of conduct for the judiciary to meet, far surpassing its existing bars on treason, bribery, and other high crimes and misdemeanors for all civil officers: the standard of Good Behavior,” Ocasio-Cortez said.

In 2020, then-Rep. Bill Johnson, R-Ohio, filed a bill to launch an impeachment inquiry into Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia, who presided over the trial and sentencing of former National Security Advisor Michael T. Flynn.

And in 2019, Rep. Ayanna S. Pressley, D-Mass., filed a bill to launch an impeachment inquiry into Supreme Court Justice Brett M. Kavauagh.

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