One of the greatest abuses of the Democratic party in the past eight years has been their use of impeachment investigations and charges against their political opponents. From President Donald Trump to conservative justices, liberal members have demanded impeachments over everything from opposing the NFL kneelers to hanging revolutionary-era flags. Now, some Republican members are calling for the impeachment of judges who ruled against Trump’s earlier executive orders and programs. Elon Musk has supported this effort. It would be a grave mistake to follow the Democratic example in the misuse of impeachment powers to target judges or justices.
I testified in the impeachment proceedings against Presidents Bill Clinton, Donald Trump, and Joe Biden on the use and the abuse of this power. I also was lead counsel in the last judicial impeachment trial in the Senate. In my view, this is not an appropriate use of impeachment and could seriously undermine our constitutional system.
I have disagreed with some of the decisions enjoining Trump’s efforts to reduce the size and waste of the federal government. That is not because I support the extreme reliance on executive orders. Such orders can be a threat to our tripartite system of governance. I often do criticize the use of executive power to circumvent Congress by both Democratic and Republican presidents. Many presidents have sought to concentrate power in the executive branch, a dangerous usurpation of authority in a system premised on the division of governing powers. That imperial model of the presidency should be resisted by both courts and Congress.
Many of these orders, however, focus on the running of the executive branch where Article III powers are most robust. Presidents must carry out constitutional legislative mandates. However, they retain considerable latitude in how they carry out such mandates.
Regardless of how one feels about the pace or wisdom of these moves, Trump has authority under Article II of the Constitution to make significant changes to the structure and size of the executive branch.
Despite this view, the devil is in the details. The sweeping scope and pace of the moves raise good-faith concerns over compliance with federal laws and dedicated federal spending. It is common for presidents, including Joe Biden, to issue a flurry of executive orders negating their predecessors’ policies. Ultimately, the underlying legal issues must be hashed out in the courts. Presidents often prevail in most, but not all, such uses of executive power.
Rep. Andrew Clyde (R., Ga.) and others are upset with U.S. District Judge Paul Engelmayer’s temporary blocking of the Department of Government Efficiency (DOGE) from accessing U.S. Treasury Department systems responsible for trillions of dollars in payments.
Rep. Andy Ogles (R., Tenn.) has filed a resolution seeking to have U.S. District Judge John Bates in Washington, D.C., removed after he ordered the Trump administration to restore government health websites that were taken offline.
Other judges have been named as potential targets for ruling against the Trump Administration. Musk supported the effort and posted a message stating, “Time to impeach judges who violate the law.”
The problem is that they are not “violating the law” but simply holding an opposing viewpoint on the law’s meaning. This is why we have appellate courts. In the past, Democrats have called for impeaching judges who ruled against their own agenda. Is the GOP now going to simply replicate the lawfare and impeachment mania that consumed the Democratic party?
Rep. Clyde objected that these judges are
“not just hurting the president. You’re hurting the American people because they’re the ones who elected him, and they’re the ones who want him to do this – to exercise these specific authorities. And these judges are really denying the American people their rights.”
Indeed, judges often frustrate politicians in fulfilling campaign promises. They are designed to be counter-majoritarian and to resist popular demands when those demands contravene constitutional values. Sometimes they are themselves wrong in using such Article III powers. However, it is vital to our system to support an independent judiciary in working through such different legal viewpoints.
Another judge who has been targeted is District Judge John McConnell. According to WPRI, he is under fire for his public statement that courts must “stand and enforce the rule of law, that is, against arbitrary and capricious actions by what could be a tyrant or could be whatnot. “
Once again, I have criticized both conservative and liberal judges (and justices) for such public commentary. I view it as a great disservice to the courts for judges to pander to political groups or popular sentiment. Such commentary is worthy of judicial complaints under the Judicial Code of Ethics. However, comments like Judge McConnell’s would not satisfy the high standard demanded for impeachment.
The most difficult challenge for any political movement is the use of restraint to prevent reforms from becoming revenge. I understand the frustration with some of these initial decisions. However, they are merely the start of a process for review and resolution in our court system. We have the oldest and most stable constitutional system in history in large part due to our independent judiciary. We should not allow the frustration with court rulings to become the defenestration of our Constitution values.
In a Madisonian system, it is often as important how we do things as what we do. These are times that demand the greatest measure of commitment to our constitutional system; a leap of faith in a system that has served us brilliantly for centuries. Our system does not guarantee that we have good judging or even good judges. It guarantees that any bad decisions can be corrected in the course of our legal process. It is a time to allow that process to take its course through the courts, not Congress.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
So then how do you end judge “shopping” for activist judges? Unless both sides make examples of those who wish to ignore the constitutional rights of each branch nothing will change. Government workers are literally thumbing their nose at anyone questioning accountability. Look at the DOGE reports and see how our money was just flying out the door in the last year of the Biden administration. Just yesterday a news agency reported a Biden worker received 20 mil for some sort of DEI day. If anyone knows an American veteran ask them how difficult it is to obtain services or a disability rating from the VA yet 20 mil for a DEI day?? Our tax dollars should be accounted for and workers must account for their duties just as you and I.
I believe the problem could be fixed by Chief Justice Roberts. He has management of the lower courts as a Constitutional responsibility.. While it would be wrong for him to interfere reactively to any case, he can proactively set case uptake standards that turn back policy-challenging lawsuits by the losing side in an election.
For instance, as a separation of powers move, he could simply define as “political process interference” any case filed in District Court challenging any topic under current legislative activity in Congress, so long as it is not stalled or merely introduced with no follow-up.
He could also set down strict rules of standing and imminent injury, and insist these issues be addressed in full before any preliminary injunctions be given, as a means to thwart speculative grievances entered pretextually to obtain a policy victory..
“He has management of the lower courts as a Constitutional responsibility.”
Please cite the Constitution for any role of the Chief Justice other than presiding over the Senate in an impeachment trial.
Alternatively, since I know you can’t cite that, please cite the legislation that supports your claim.
If for no other reason, the SCOTUS should buckle themselves in and prepare to rule directly on each and every one of these political, agenda-driven actions by lower courts and set some precedents so that states and lower federal judgeships need not bleed the taxpayers money by these frivolous and totally partisan injunctions and stays. We all know the reason for them and why certain radical judges are selected. Let’s just admit what we all know and put an end to more judicial politicization of the courts.
See the statutes that established those courts in the first place.
While the Professor makes a good debate point on judges his analysis does not address the recusal issue involving some of these very same judges! Apparently, if the news is to be believed several judges have spouses with stakeholder interests in the Trump cases brought before them. Non-arms length items such as spouses who are employed or run NGO’s receiving suspended government grants, contracts, and aid! Or perhaps spouses whose non-profit represent illegal immigrants before government officials /immigration judges, etc. and are directly impacted by these Trump actions. Not one judge has recused themself from these cases for such likely conflicts. And we have not even touched the publicly partisan past comments by many of these judges about Trump himself! More LACK OF TRANSPARENCY by courts and more BLATANTLY PARTISAN EXPRESSED VIEWS by judges do not inspire confidence in the legal system!! Impeach when necessary!!!
Impeachment is the wrong tool, used in the wrong way here. Republicans should not mimic the destructive & cynical progressive lawfare strategy. Facially, it is a waste of valuable time & resources, burning critically important political theta.
Impeachment of a federal judge requires a two-thirds majority vote in the Senate to convict, a politically impossible outcome in the current environment. The whole initiative is merely political grandstanding done in bad faith & ill-serves the President, the Constitution, and the country.
John grow a set.
The uni party impeachments or just that. It’s called a law affair.
Our impeachment would be against judges doing Lawfare instead of staying in their damn lane
Turley’s position is understandable and somewhat reasonable but dependent upon a perfect world, a world that does not exist, never has existed, and probably never will exist. In Turley’s ideal world, everyone does as programmed. Judges judge, politicians argue, and the people get to sit back and watch what happens.
And then there’s the real world.
In the real world, these functions become chairs in a musical contest, with judges being politicians and politicians being or trying to be judges. The people? Befuddled, confused, and betrayed by elected and appointed leaders. Pelosi and Schumer significantly diminished the meaning of impeachment by applying it indiscriminately and for political purposes. It should never be used to reverse or annul elected officials or unpopular actions by politicians or judges. The founders intended it specifically for “high crimes and misdemeanors.”
A solution is for judges to police judges and politicians to police politicians. The role of the Chief Justice was intended for this purpose, but he has been mostly silent about the behavior of his subordinate jurists on the bench. Likewise, leaders in the House and Senate are often guilty of saying and doing things below their office. It’s difficult for Chuck Schumer, standing on the high court steps, for example, and calling for the destruction of two justices to then be expected to discipline other senators for misconduct or improper behavior. When it comes down to it, the ruling class is above the rules.
Ultimately, the judges of our civil servants, up to and including the president, are the people who must consider the suitability of candidates for office. Character and integrity should be foremost in such considerations, and the rest likely will follow.
JJC,
Great comment. I like your ideal and real world analogies. But I do agree with the good professor and let the judicial system work namely the appellate courts. Not being a lawyer, I am assuming the best way for a EO to stand up to the courts is to be written in such a manner that is consistent with the letter of the law and the Constitution.
Upstate: Thank you for your comment. I agree with the critical point you made. The first time around, Trump was convinced that the merits of his EOs would carry the day. However, appellate courts always look first to the law and rarely concern themselves with the merits, that is, the underlying policy statements. This time, it is evident that Trump understands the value of sound legal grounding and ensures that his EOs are first and foremost legally secure and can withstand scrutiny by a court of appeals and, if necessary, the SCOTUS.
JJC,
Thank you for your analysis of the first Trump admin vs this one. That is what it seemed like to me but again, not being a lawyer, I rely on you, other lawyers and the good professor to break it down for me, barney style.
jjc, your comment was of far higher quality and clarity than the meandering column that Professor Turley served here today.
There is real, ongoing harm going on with these activist judges, and he sees it more as an academic matter some peoples’ feelings are hurt.
Will put! I can agree i was one of those would blurred out impeach them but i could clearly see how the judges were obviously going well past their article three powers. Its not simply that i disagree with their viewpoints but they themselves are upholding unconstitutional laws in the first place.
A federal judge of the district court ,not SCOTUS, telling the executive branch to not preform his obvious constitutional duty deserves impeachment. Heck even SCOTUS would know that is an overreach.
I also wish Turley took into consideration the times we are in. Corruption abound, within several levels of government, within two branches(it would be three had DJT not won, yes I’m aware of the bias) and a non functioning legislature, the people are the ones who get screwed. What is supposed to happen, should a SCOTUS ruling go counter to the people, our legislators of the several states would be able to push through the only remaining remedy, Article 5!
With a country this ideologically divided, the chances of a COS ever occurring is just a pipe dream in my opinion.
What I said earlier was not strong enough, so let me restate it. FvCK Judges and FvCK the Horses they rode in on! Judges are human beings, and they are no better than anyone else. Theoretically, they should be better people, but they aren’t. They put their pants and their panties on, one leg at a time, just like anyone else.
Federal Judges are an entitled bunch. They have a lifetime job, and they get a nice salary and pension, and a lot of power, and a lot of prestige. What happens to anyone who has that kind of job security? They can get full of themselves in a hurry. Then consider the motivation to appoint them to office. Who appoints them? God? Jesus? A preacher? FvCK no, a politician appoints them. Politicians are the kind of people most of us consider slimy to start off with. And most of them are. Do you really think for one second a slimeball like Joe Biden ISN’T going to appoint judges for nefarious reasons???
Why do you think we pretty well know IN ADVANCE how certain members of our most prestigious court, SCOTUS, are going to vote on a given issue? Because the Liberal ones are going to vote their POLITICS, not the Law. I am pretty sure that Ketanji is going to vote for the trannies in the Tennessee case, along with Kagan and Sotomayor. Not positive, but pretty sure. Why? Because they are political hacks in black robes. Screw all the talk about giving them respect and deference. Start, by calling them what they are.
Is this any less true among the lesser District Judges, and Appeals Court Judges???
These people are like employees, who think they can’t be fired. And, as a practical matter, they are right, because nobody has been firing them when they step out of line. So they are going to do what they want to do, the law be damned. The only way you can keep these people in line – is to fire them, to hang a few of them in front of the courthouse, from time to time, so to speak, to keep the others in line. This is just an exercise in Practical Management. To remind them that they can lose that cushy job, and those nice benefits, and that they could go back to chasing ambulances for a living, or doing Mrs. McGillicuddy’s Divorce, for $2,000 and some sex on the office couch.
Agree that impeachment is not appropriate. First, Republicans should not act like Democrats. Second, without the votes in the Senate, it is all virtue signalling. Third, it takes away from time that could actually be spent doing something useful
And this, I said to a friend recently who is a Trump supporter but opposed pardoning the J6 rioters, is why the conservatives almost always lose. The left can pardon whoever they want for political reasons without care, but conservatives will oppose their own presidents doing the same. The left can impeach a president twice for no reason, but the right will not impeach the president except for what it considers high crimes or misdemeanor and requiring absolute proof, apparently, before it will do so – an impossible task. The left will try to end the electoral college and the filibuster – when it suits it – make liberal territories into states, and pack the Supreme Court, all to seek complete power. The right will not act likewise when it’s to its advantage, with very few exceptions. And so on.
While I understand that in normal times – and these are not normal times politically – we want to follow political norms, if the right does not teach the left that every attempt by them to skirt around the law or to tear down our democracy will be met with equal rigor, at least when it is constitutional to do so, then the left will continue to do whatever it wants. The list of their scandalous behavior goes on and on. The right is not perfect, by any stretch. I’m not a Republican or a conservative. But there is such a thing as good guys and bad guys. The left are the bad guys now.
Do you think any of those Hamas supporters threatening Jews, any of those people who are blocking traffic or destroying paintings are Trump supporters? The left can point to one example – J6. There are thousands of examples of the left doing it. Thousands. It has to stop and it will only stop if there is enough pushback. Impeach any judge who shows that they will act politically and without do regard to law. I’m not saying impeach everyone who rules against Trump. But there are limits beyond which is the type of behavior which is impeachable. They don’t have to actually say the words – If Trump’s for it I’m against it. You can tell.
Pardoning the J6 dissidents was the right thing to do, but it should have been both broader and more limited. The pardon should have covered everyone who participated in the protests on that day, regardless of whether they’ve yet been charged with anything; but it should have excluded anyone who was employed in any capacity, directly or indirectly by the FBI, CIA, or Capitol Police, as well as anyone who was present at any protest between Jan-1-2017 and Dec-31-2020. (That last one is to exclude Antifa)
Jonthan I disagree, these Activist DEM Judges are ignoring the law, just like the NY judges in Trump trials, making it up as they go ignoring the Constitution, Executive Branch etc. Also, when these Judges are looked at they should not be the ones on the case, the Rhode Island Judge is a well-known DEM Activist and large contributor to DEMS/Biden. Other Judges have wives or family members running NGO’s who received $$$ from US AID and no longer do not. Then we have Judge Merchan in NY, who makes up rules, ignores rights, has a daughter who collected $15 mil from DEMS during the trial. Sorry Jonthan these Judges need to be impeached.
I am ok with Revenge!
Democrats have been doing it for decades, GOP attempt to be bipartisan! You can’t be bipartisan with Fascists who openly import illegals to GAIN VOTING Power of a RIGGED ballot fraud system!
apparently Jon you have been asleep while Democrats and RINOs dragged Trump through the courts for the Russian Hoax, impeachments and various criminal and civil trials….with NO ONE Judge stopping the LAWFARE!
How do we STOP Lawfare…by playing nice?
use the tools at hand. Run it through the system for ever and ever. So means Turley.
I understand and appreciate your comment. Both sides impeaching each other all the time would be destructive. However, you know that if and when the Dems regain power, they will return to their impeachment habits. Sure, they will lose a lot, but they surely do love to watch their opponents squirm. You know. It’s in their DNA.
so criminal judges like those in NY who openly criminally conspired against Trump….how do we stop these criminals?
so if a Judge is WRONG…how are they punished?
“. . . where Article III powers . . .”
Did you mean II?
Sam,
Typo. It happens. Perhaps the good professor was waiting for his coffee to finish brewing. Or on a mobile device. I know a few commenters here that use mobile devices and will fat finger a key. Most of the time I can figure out what they are saying.
clean house…impeach them all!
stop being the nice bi-partisan people. Democrats ONLY learn from RAW force…as they use!
If a single judge (based on their personal politics – it hates Trump,) is blocking a president’s efforts to do its job then how does the system allow it to rectify that? Run it through the courts for 4 years until Trump is gone, or what?
It’s called the court of appeals and scotus.
One biased judge has the power to stop a president only because he doesn’t his policies, knows he can use federal law to hinter a president? One judge vs. one president?
What does the construction say about that? Let it play out? Clearly its about a judge’s political bias. So wait years before it gets through the liberal biased judicial system?
Not all matters take four years. The supreme court has a docket that is responsive to immediate national concerns but they must wait until something is ripe for review. This includes a standing analysis and a procedurally sound response to exigent matters. The executive orders being issued by any president are matters of immediate remedial action (kind of like the immediate effects of a personal policy decision as opposed to a glacier like and more expansive cultural decision) but the legal interpretation of them has lasting consequences usually only remedied by legislative action. We all know how long that takes. But for the process to be effective it has to balance. Legal and political systems are constantly balancing themselves just as we all do on a personal level. We position our selves and then modify our behavior by positing counterfactuals and formulating an inference to the best explanation and remedies that attend our situation. Such it is on the more expanded federal level. Just like any tension theory or laws of reversibility and much like the perspective of delayed gratification, patience is needed in federal activity. The executive goes into emergency surgery hoping that its actions are appropriate. The standing requirement for the courts requires an injury that must be concrete and particularized. It is necessarily after the fact of executive action and time is required for the process to mature at national levels.
Things, people, events that are of human origin, always seek their opposite. Multiple tension theories and laws of reversibility evidence that. But we occasionally see that reason dictates we seek opposite directions whether on long or short term paths. What is occurring now is what has always occurred. As stated elsewhere, what we are now experiencing is the constitution at work, reflecting the wisdom of the founding concepts.
What I get from this… the whole constitutional system is a house of cards. A simple draft can knock it over.
Just the opposite. It’s a palm tree -easy to bend, very difficult to uproot. This is not the constitution in crises – this is the constitution in action.
Don’t be Democrats. Don’t impeach over opinions. Appeal over opinions…
The argument JT makes is valid and I support the maintaining the norms, principles, traditions, rules, laws etc. that form the foundation for our constitutional republic. I have observed over the last few decades that one of our major parties has discarded fealty to the institutions that preserve our system. They will discard any institution for short term political motives and gain without reservation. They do not recognize any guardrails that once would curtail their actions. Our previous president openly disregarded SCOTUS rulings recognizing that he was free to act while challenges made their way at a glacial pace through the courts. The goals and policies of the two parties diverged so there is no commonality between them. Competition has been replaced by political warfare. The opposition which supports the foundational institutions puts itself at a disadvantage to the party which has discarded any boundaries. I don’t see anyway out of this spiral.
Our previous president openly disregarded SCOTUS rulings
No, he did not. He simply didn’t. Maybe only because he was too dumb to realize that he could do that? Or maybe because he had advisors who kept him from it? I don’t know. I know he spoke publicly against rulings he didn’t like, but he always fully complied with them.
Lost in the Forest of An Independent Judiciary are the Evil Trees of Judicial Activism. Impeach them!
okay flyod, based on what? Floyd is made at them?
How about impeaching them under the new standards Democrats have set for impeachment?