In the past few weeks, Elon Musk and a handful of Republican members of Congress have been calling for the impeachment of federal judges who have issued orders pausing or blocking the implementation of various executive orders and policies initiated by the White House during the first month of President Donald Trump’s second term.
Using language that generates a good deal of heat but very little light, they have accused these judges—appointed by both Democratic and Republican presidents—of being radicals or activists intent on interfering with the president’s constitutional authority as head of the executive branch. Resolutions calling for the issuance of a bill of impeachment against several federal judges have been introduced in Congress, but so far, none have actually been issued.
Article I, section 2 of the Constitution states that the House of Representatives “shall have the sole Power of Impeachment,” and Article I, section 3 gives the Senate exclusive power to try all impeachments, with a two-thirds majority required for conviction. Article II, section 4 of the Constitution states that the president, vice president, and all civil officers of the US shall be removed from office for conviction of “treason, bribery, or other high crimes and misdemeanors.”
This means that by a simple majority vote in the House of Representatives, any civil officer, including federal judges, may be “impeached,” but the trial takes place in the Senate, and requires a two-thirds majority to convict and remove them from office.
In the entire history of the US, only 21 civil officers have faced impeachment: three presidents (none convicted), one senator (expelled, with his charges dismissed), one secretary of war (not convicted), one secretary of Homeland Security (charges dismissed as unconstitutional), and 15 federal judges (eight of whom were convicted and removed from office, four found not guilty, and three resigned after being impeached but before their trial in the Senate).
Article III of the Constitution states that federal judges shall hold their offices “during good behavior,” but like many phrases in that foundational document, the exact meaning of these words is less than clear. History, however, gives a clear indication about the kind of judicial misconduct that warrants an impeachment conviction, and removal from office: mental instability (Judge John Pickering, 1804), refusal to hold court and waging war against the US (Judge West Humphries, 1862), improper business relationships with litigants (Judge Robert Archibald, 1913), favoritism in the appointment of bankruptcy receivers and practicing law while serving as a judge (Judge Halstead Ritter, 1936), conviction for income tax evasion (Judge Harry Claiborne, 1986), perjury before the grand jury (Judge Walter Nixon, 1989), perjury and soliciting a bribe (Judge Alcee Hastings, 1989, who—following his conviction and removal from the bench—successfully ran for Congress and served from 1993-2021), sexual assault, obstructing an official proceeding, false and misleading statements (Judge Samuel Kent, 2009), and accepting bribes and false statements under penalty of perjury (Judge G. Thomas Porteous, 2010).
It doesn’t require Napoleonic insight to see that to justify impeachment of a federal judge, criminal or equally egregious behavior is required. Disagreement with the rulings of a federal judge has never been a justified basis for the impeachment and removal from office.
Looking at the conduct of the judges who have been subjected to calls for impeachment because they issued rulings against the implementation of Trump’s executive orders and policies shows they have the following characteristics in common: They all were US district judges—the backbone of the federal judiciary—who performed their constitutionally required duty to decide a case that had been assigned to them in which the plaintiffs had asserted that a particular executive order or policy violated their constitutional rights or a federal statute.
The judges were required by their oath of office to evaluate the claims by the plaintiffs and the defenses asserted by the administration, and rule. Moreover, they issued detailed written opinions explaining the factual and legal basis for their rulings. And those rulings were subject to review by a federal appellate court if the administration disagreed with the ruling and sought to stay the judge’s order while the ruling was appealed.
Far from being “activist” or “radical,” these judges were acting as judicial first responders to serious lawsuits challenging administration policies as being unconstitutional or otherwise illegal. Disagreement with their rulings is a legitimate ground for appeal, but not for impeachment. And threats to initiate impeachment actions against them for conduct that is so clearly dissimilar from all the cases in the history of our country in which judges have been convicted and removed from office must be condemned for what they are—transparent efforts to intimidate judges and deter them from performing their duties.
Fortunately, these threats will fail, and the dedicated men and women who make up the federal judiciary will continue to selflessly protect our rights and liberties. For that, we should be immensely grateful.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Paul Grimm is a retired US district judge and professor of the practice of law at Duke Law School.
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