Adam—Further to my analysis below. The Chief Justice has now weighed in; highlighted and annotated article attached.
After Judge Boasberg did his thing—issuing an ex parte TRO (not the norm) and certifying a class action the same day the suit was filed (extraordinary)—Trump and others in his administration immediately called for impeachment. Chief Justice Roberts has responded: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.” Of course, nothing is that simple.
Trump’s statements are certainly over the top—that’s how he operates. But respectfully, Chief Justice Roberts’s commentary isn’t exactly gospel either. Here are a few thoughts:
· Impeachment is available against judges for “high crimes and misdemeanors” just as with any other federal officer (except members of Congress—go figure).
· The phrase “high crimes and misdemeanors” lacks a precise definition. But in 1833—while still on the SCOTUS bench—then-Justice Joseph Story published a book called “[Commentaries on the Constitution of the United States](https://www.lonang.com/wp-content/download/Story-CommentariesUSConstitution.pdf).” In it, he said the following about what may constitute an impeachable offense (this is from § 762; I’ve added all emphasis and bracketed material):
The offenses, to which the power of impeachment has been, and is ordinarily applied, as a remedy, **are of a political character**. Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that **it has a more enlarged operation**, and **reaches, what are aptly termed, political offences**, growing out of personal misconduct, or **gross neglect, or usurpation, or habitual disregard of the public interests**, in the discharge of the duties of political office. These are **so various in their character**, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon **very broad and comprehensive principles of public policy and duty**. . . . A tribunal, composed of [statesmen], would therefore be far more competent, in point of intelligence and ability, than [judges], for the discharge of the [impeachment] functions, all other circumstances being equal.
· To me, Justice Story’s observations dilute Chief Justice Roberts’s comments. Judges who usurp Article II powers, disregard the public interest, or engage in harmful political conduct “so various in their character” are ripe for impeachment. This doesn’t mean that they should be removed, but the mechanism for examining the issue and making fitness decisions is not unequivocally improper.
· Chief Justice Roberts also observes that the appellate process is available to review bad judicial decisions. True, but impeachment is available as well; they’re not mutually exclusive. Impeachment shouldn’t be overdone, but it’s a mistake to limit the public’s options to appellate relief.
· This also reminds me of something my Criminal Law professor told me in 1987: “Ignorance of the law is no excuse—unless you’re a trial judge. That’s why we have appellate courts.” 😆
As you know, the government has filed a brief to stay the TRO; the ACLU must file its brief today. I’m sure it will be a lot of technical mumbo jumbo, so I probably won’t comment on it (or any reply that the government may file). I expect a pretty quick decision on that—we’ll see.