Targeting the Judges

Donald Trump and the GOP have ratcheted up their attacks upon the federal judiciary. But that might be a costly mistake.

Chief Justice John Roberts. Photo: Chip Somodevilla/Pool via Reuters

The judiciary is proving to be a vital check upon Trump’s authoritarian ambitions. So it’s not surprising that as president, he has already started coming after them.

Trump has a long history of bashing and threatening judges. When he was facing multiple court battles as a candidate, resulting in massive damages and felony convictions on 36 counts, his favorite targets were the judges presiding over his cases. He frequently bashed them publicly, threatening both them and their families.

That hasn’t changed since he became president again, and right on cue his sycophantic enablers in the GOP are cheering him on. The rhetoric and threats have grown so egregious lately that the Chief Justice himself had to speak out against them. This raised many eyebrows as a clash between Trump and the Supreme Court grows both increasingly high stakes and inevitable.

Trump joins a dangerous chorus

This week, federal district court Judge James Boasberg (disclaimer: he once worked at my law firm in San Francisco) issued a temporary restraining order from the bench directing that planes carrying Venezuelan migrants to El Salvador be turned around mid-flight. As my piece earlier this week noted, the government disobeyed that direct order, precipitating a tense hearing and leading many to wonder if this was the clash between the executive and judiciary branches that would plunge us even deeper into a constitutional crisis.

Adding lighter fuel to that fire, Trump took to social media to directly attack Judge Boasberg.

He claimed Boasberg was appointed by “Barack Hussein Obama” (of course “Hussein”), but he was actually first appointed to be a judge in D.C. by President George W. Bush. And making a point out of the obvious, he argued that Boasberg was “not elected President” and that he “didn’t WIN the popular VOTE (by a lot!)” before going into details about his own electoral victory, which was actually small by historical standards.

At the end of an eye-glazing string of ALL CAPS text, Trump asserted Boasberg was just like the many “Crooked Judges” he had to appear before and “should be IMPEACHED!!!”

Going after a judge over a TRO is bonkers

One point needs to be made here clearly. Judges these days, particularly when dealing with Trump’s chaos, often must move quickly to freeze events in place until they can hold a more formal hearing to sort the facts and legal arguments. This is the correct way to proceed, and it happens all the time. Issuing a temporary restraining order is not some kind of huge, substantive call. It’s simply to make sure that irreparable harm does not occur in the interim so there will still be something left to remedy if needed.

As Prof. Joyce Vance stated, “They are threatening to impeach judges over injunctions, often temporary ones meant to freeze the status quo for a few days while the courts get up to speed. It’s the kind of insanity that suggests the purpose is to delegitimize the judiciary, which is what dictators do.”

Judge Boasberg understood his responsibility to prevent irreparable harm, particularly because it appeared Trump may have been abusing power under the Alien Enemies Act and was about to send non-criminals to foreign prisons. This is a power normally reserved for wartime, and we aren’t at war with Venezuela. Had Judge Boasberg not issued his order to turn the plane around, the fear was that the Venezuelan migrants, including some who were apparently not members of any gangs but were misidentified because of their tattoos, would wind up in a prison in El Salvador and would not be traceable or easily repatriated.

To underscore this point, the government’s disobeying of that direct order has now deeply complicated any efforts to provide legal due process to the migrants. All of them were summarily deported with no hearing and therefore no opportunity to challenge their plight.

Telling judges they cannot move to protect the status quo while they get to the evidence and law without being impeached is a direct assault upon the independence and power of the judiciary.

MAGA falls over itself to please Dear Leader

MAGA House members were eager to take up Trump’s call. Rep. Brandon Gill (R-TX) introduced articles of impeachment against Boasberg that same day, claiming Judge Boasberg was guilty of “high crimes and misdemeanors.” Rep. Gill claimed that the judge had used his position to “advance political gain while interfering with the President’s constitutional prerogatives and enforcement of the rule of law.”

But as The Daily Beast reported, when asked by right-wing media host Shaun Kraisman of Newsmax what crime Boasberg had actually committed, Rep. Gill came up empty, repeating the same conclusory charge spelled out in his articles:

“What crime did the judge commit?” Kraisman asked.

“This is for usurping the executive’s authority, for demeaning the impartiality of the court by making a politicized ruling and forcing a constitutional crisis. That is a high crime and misdemeanor,” Gill replied, unable to specify the judge’s actions that amounted to high crimes.

This is now at least the fifth time a Republican has drawn up articles of impeachment against a federal judge for ruling against Trump’s agenda.

To sweeten the pot and encourage more of this behavior, Elon Musk entered the chat with his checkbook. He started doling out cash to House members who had called for ousting judges who impede the White House in any way. As the New York Times reported,

Mr. Musk has given what had been until recently the legal maximum hard-dollar donation — $6,600 — to the campaigns of seven Republicans who have either endorsed judicial impeachments or called for some form of “action” in response to recent rulings against the Trump administration, including a weekend decision by Judge James E. Boasberg of Federal District Court in Washington.

Those who have received Musk’s anti-judge money include some of the most extreme members of the House: Eli Crane (R-AZ), Lauren Boebert (R-CO), Andy Ogles (R-TN), Andrew Clyde (R-GA), Derrick Van Orden (R-WI) and Brandon Gill (R-TX).

Musk, like Trump, has become a public danger by threatening impeachment on judges he doesn’t agree with. And like Trump, he displays a stunning disregard both for constitutional safeguards and the way our government actually works.

For example, Musk recently tweeted that a federal judge’s ruling against Trump’s executive order banning trans service members from the military was “a judicial coup.” (It was not; rather, it was a reviewable ruling upholding basic constitutional principles). He then stated, “We need 60 senators to impeach the judges and restore rule of the people.”

(Narrator: It is time for Elon Musk to review the U.S. Constitution. Only the House, not the Senate, may impeach government officials accused of high crimes and misdemeanors. Then the Senate may vote to remove the official, but it requires a two-thirds vote. That’s 67 senators, not 60. Perhaps he was thinking of the filibuster, which needs a vote of 60 to overcome. Perhaps Musk should heed warnings that prolonged ketamine use may cause mental confusion and memory lapses.)

The pushback

Let’s get one thing out of the way. The articles of impeachment against Judge Boasberg aren’t going anywhere. To underscore this point, GOP members in swing districts have already come out publicly against the idea of impeaching judges over their rulings. As Axios reported,

• Rep. Dusty Johnson (R-SD), chair of the Main Street Caucus, told Axios: “We shouldn’t impeach judges because they render a decision we disagree with. The remedy for bad decisions is getting them overturned on appeal.”

• “We have a tradition going back to 1789 of respecting judges’ decisions or appealing them. It is the way we respect the Separation of Powers in the Constitution,” said Rep. Don Bacon (R-NE).

• Said a senior House Republican: “This doesn’t have the votes.”

But the biggest and perhaps most welcome pushback came from the Supreme Court itself.

Shortly after Trump posted his call for Boasberg to be impeached, Chief Justice John Roberts issued a statement rebuking him, albeit indirectly. He warned that “impeachment is not an appropriate response to disagreement concerning a judicial decision” and that the “normal appellate review process exists for that purpose.”

“This kind of public rebuke from a chief justice of a president is extremely unusual,” Keith Whittington, a Yale Law School professor and expert on constitutional law, told Bloomberg News. “It’s a very serious and pretty extraordinary ratcheting up of tension between the White House and the judicial branch.”

This pushback by the Chief Justice isn’t coming in a political vacuum. Threats upon the federal judiciary are alarming many judges, including the justices themselves. Following the Supreme Court’s 5-4 decision to let stand a restraining order against the freezing of $2 billion in U.S. foreign aid—a ruling where Justice Amy Coney Barrett and the Chief Justice joined the Court’s three liberal justices—Justice Barrett drew the ire of the MAGA base, with some of the loudest voices labeling her Amy “Commie” Barrett.

This sparked apparent acts of stochastic terrorism. As reported by the New York Times today, Trump’s call for impeachment “set off a string of near-instant social media taunts and threats, including images of judges being marched off in handcuffs,” and it came against “an ominous backdrop”:

Nine days earlier, police officers in Charleston, S.C., had been dispatched to the home of one of Supreme Court Justice Amy Coney Barrett’s sisters because of a threat that there was a pipe bomb in her mailbox. “The device’s detonation will be triggered as soon as the mailbox is next opened,” the emailed threat read.

The pipe bomb proved to be a hoax, but the threats and intimidation faced by judges and their families in recent weeks are real, judges say.

We are now at a dangerous crossroads, where the ability of the Supreme Court to rule impartially and without fear of reprisals, whether political or extra-legal, lies in question. My hope and expectation is that these threats will only strengthen arguments that Trump is out of control, and that the federal courts must act as a backstop against his overtly fascist actions.

It is only a matter of time before matters of high constitutional consequence, due to Trump’s orders and power grabs, reach the Supreme Court squarely, and the justices must rule with finality on the scope of Trump’s power as president. Trump will likely need at least the Chief Justice on his side to obtain a favorable outcome, and while it’s premature to read too much into the unusual public rebuke by Roberts, it’s at least a clear signal that Roberts believes Trump has taken things too far.

And that’s not something anyone—even the Chief Justice of the Supreme Court—would normally have the right to say to a king.