The New York City Bar Association is gravely concerned about recent impeachment threats by Executive Branch officials and members of Congress against federal judges for performing their judicial duties. For over 200 years, judicial impeachment has been reserved for significant offenses such as a criminal conviction, corruption, or egregious ethical misconduct. The current attacks ignore that history and the settled interpretation of Congress’s impeachment power, and instead threaten judges with impeachment merely for ruling adversely to the positions taken by the current Administration.
Our Constitutional Democracy Depends on an Independent Judiciary
Trust in the independence and impartiality of the judicial system is a key pillar of the checks and balances built into the Constitution that form the bedrock of American democracy. Ever since the Supreme Court’s 1803 ruling in Marbury v. Madison, the federal courts have assumed the responsibility for determining whether the actions of the Executive Branch run afoul of the Constitution or other federal laws. In order for the Judicial Branch to fulfill its Constitutional role as a check on the other two branches of government, judges must be able to discharge their duties without threats, or the fear of threats, to their safety or to their jobs, in response to their rulings. In our system of government, it is essential that judges be able to make decisions free from interference or improper influence.
Recent Rulings by Federal Judges Have Placed Limits on Executive Branch Actions
Several members of the House of Representatives have recently introduced resolutions calling for the impeachment of six federal district judges in response to their rulings in lawsuits challenging actions taken by the Trump Administration with regard to federal agencies, agency records and employees, federal funding, and deportations of immigrants. Specifically:
- U.S. District Judge Paul Engelmayer (Southern District of New York) issued an order on February 8, 2025, that prohibited “special government employees” of the Department of Government Efficiency, referred to as DOGE, and certain political appointees from accessing payment systems maintained by the Department of the Treasury, citing a risk that sensitive or confidential information could be improperly disclosed and that such systems would be more vulnerable to hacking.[1]
- U.S. District Judge John Bates (District of Columbia) issued an order on February 11, 2025, directing the CDC, the FDA, and the Department of Health & Human Services to temporarily restore data to their webpages consisting of HIV infection data, including data relating to children, clinical trial data, and information for doctors on how to monitor or respond to disease outbreaks that had been removed in response to a January 20, 2025 Executive Order directing federal agencies to eliminate “gender ideology extremism” by deleting public-facing information mentioning or appearing to reference anything beyond two biological sexes.[2]
- Chief U.S. District Judge John McConnell (Rhode Island) issued an order on January 31, 2025, blocking certain aspects of the Trump Administration’s freeze of federal funding and its grant to DOGE of access to Treasury Department records systems.[3]
- U.S. District Judge Amir Ali (District of Columbia) issued an order on February 13, 2025, that restored certain foreign aid payments to contractors and grant recipients of the U.S. Agency for International Development and State Department in response to Trump Administration directives freezing all such payments.[4]
- U.S. District Judge James Boasberg (District of Columbia) issued an order on March 15, 2025, that sought to block the Trump Administration’s efforts to use the Alien Enemies Act of 1798 to deport immigrants accused of being Venezuelan gang members.[5]
- And U.S. District Judge Theodore Chuang (District of Maryland) issued an order on March 18, 2025 reinstating access to email, payments, security notifications, and other electronic systems, including restoring deleted emails, for USAID employees and individual contract hires of the agency, finding that Elon Musk’s activities violated the Constitution’s Appointments Clause and the separation of powers.[6]
Members of Congress Have Responded by Introducing Articles of Impeachment Targeting these Judges for their Rulings
- On February 18, 2025, Rep. Derrick Van Orden (R?Wis.) introduced a resolution that Judge Engelmayer be “impeached for high crimes and misdemeanors.” The first article of impeachment states, in part, that the judge “engaged in judicial misconduct when he halted President Donald J. Trump’s Executive Order establishing [DOGE] on purely political grounds, demonstrating clear bias and prejudice against the President and the 74,000,000 Americans who voted for him.” The second article states that the judge “abused his judicial office by using his authority to further personal or political interests, contrary to the constitutional responsibility to apply the law impartially, including the proper handling of this case in a manner that demonstrates favoritism or undue influence, undermining the fundamental principles of justice.”[7]
- On February 21, Rep. Eli Crane (R-Ariz.) introduced a resolution in a similar vein, containing a single article of impeachment “for high crimes and misdemeanors” against Judge Engelmayer over the same order, stating that the judge used “his judicial position to advance personal interests and political gain” and “interfered with the will of the people,” and that “[b]y making a political decision outside the scope of his legal duties, he compromised the impartiality of our judicial system.”[8]
- On February 24, 2025, Rep. Andy Ogles (R-Tenn) introduced a resolution to impeach Judge Bates, which stated that the judge “has engaged in conduct so utterly lacking in intellectual honesty and basic integrity that he is guilty of high crimes and misdemeanors, is unfit to hold the office of Federal judge, and should be removed from office.”[9]
- On February 27, Rep. Ogles introduced a resolution to impeach Judge Ali; it contained a single article of impeachment, stating that the judge had “marginalized the President’s Article II authority” to conduct foreign policy, criticizing specific USAID grants, and charging the judge with “conduct so utterly lacking in intellectual honesty and basic integrity that he is guilty of high crimes and misdemeanors.”[10]
- On March 18, Rep. Brandon Gill (R-Tex) introduced a resolution to impeach Judge Boasberg, stating that the judge “interfered with the President’s constitutional prerogatives,” “illegitimately tried to substitute his own judgement (sic) for that of the elected President of the United States,” and “attempted to seize power from the Executive Branch and interfere with the will of the American people.”[11]
- On March 24, Rep. Andrew Clyde (R-Ga.) made good on an earlier threat to introduce a resolution to impeach Chief Judge McConnell of Rhode Island. The first article of impeachment charges the judge with an abuse of power, stating that he “politicized and weaponized his judicial position to advance his own political views and beliefs;” the second article states that the judge’s service as a director and former board chair of a Rhode Island nonprofit involved in combatting homelessness that receives some state funding constituted a conflict of interest in his ruling on a case in which the state of Rhode Island is one of the plaintiffs.[12]
- Also on March 24, Rep. Andy Ogles (R-Tenn) introduced a resolution to impeach Judge Chuang, which stated that the judge had “engaged in conduct so lacking in due concern for the separation of powers and the national security of the United States that he is guilty of high crimes and misdemeanors, is unfit to hold the office of Federal judge, and should be removed from office.”[13]
These impeachment resolutions followed on the heels of inflammatory statements by the President and other Executive Branch officials calling for the impeachment of judges who issued rulings enjoining certain executive branch actions, including actions by the DOGE. Most recently, President Trump, in response to the orders issued by Judge Boasberg, posted on Truth Social: “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”[14] In previous weeks, Special Government Employee Musk has repeatedly urged the impeachment of federal judges on the social media platform X, calling Judge Engelmayer, who issued decisions blocking Mr. Musk’s access to Treasury Department payment systems, “A corrupt judge protecting corruption …. He needs to be impeached now.”[15] In another post on X, Mr. Musk wrote: “The only way to restore rule of the people in America is to impeach judges.”[16]
Recent Efforts to Impeach Federal Judges for Decisions Adverse to Positions Advocated by the Executive Branch Are Mistaken, Unwarranted, and Dangerous
The impeachment power is a process by which Congress can remove judges from office, but it is in fact rarely used and almost always limited to situations of serious ethical or criminal misconduct. Under Article 1 of the U.S. Constitution, the House of Representatives has the power to vote articles of impeachment by a majority vote, following which the Senate holds a trial, in which a two-thirds majority is required to convict and remove a judge. For federal judges, as for Executive Branch officials, including the President and Vice President, the ground for impeachment is provided in Article II, Section 4: “Treason, Bribery, or other high Crimes and Misdemeanors.” Absent impeachment, Article III, Section 1 provides that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during Good Behaviour.” In other words, the only way to remove a federal judge from office is by impeachment, and it is generally accepted by scholars that federal judges retain their judgeship for life unless removed through this exclusive constitutional mechanism.[17]
Historically, where judges are concerned, the use of the federal impeachment power by Congress usually has been reserved for circumstances such as conviction for a serious crime or corrupt or other egregious conduct. In the last 222 years (since 1803), the House of Representatives has voted to impeach only 15 federal judges, and only eight of those impeachments were followed by convictions in the Senate. According to records compiled by the Federal Judicial Center, in the last 40 years the grounds for impeachment have included tax evasion and remaining on the bench following a criminal conviction (Claiborne, 1986); perjury and conspiring to solicit a bribe (Hastings, 1988); perjury before a federal grand jury (Walter Nixon, 1989); sexual assault, obstructing and impeding an official proceeding, making false and misleading statements (Kent, 2009); and accepting bribes and committing perjury (Porteus, 2010).[18]
Former Chief Justice William Rehnquist, who wrote a book examining the history of judicial impeachment, concluded that early historical uses of the impeachment power established a norm that judicial acts – judges’ rulings from the bench – would not be a basis for removal from office by impeachment.[19] As the Brennan Center’s Douglas Keith explains:
“This norm contributes to the United States’ carefully balanced three-branch system of government, which requires that judges remain insulated from political pressure when deciding cases. Job security is one important contributor to maintaining judicial independence — so that judges are deciding cases based on their understanding of what the law requires and not worrying that they could be removed from office if powerful political actors disagree with their rulings.”[20]
Although couched in inflammatory language about “bias and prejudice” (Van Orden), “used his judicial position to advance personal interests and political gain” (Crane), “conduct so utterly lacking in honesty and basic integrity” (Ogles), “attempted to seize power from the Executive Branch” (Gill) and “politicized and weaponized his judicial position” (Clyde), the recent impeachment resolutions against federal district judges Engelmayer, Bates, Ali, Boasberg, McConnell and Chuang leave no doubt that the basis urged for impeachment is nothing more than simple disagreement with specific court decisions in which the judges ruled adversely to the positions advocated by the Trump Administration. The articles make no mention of convictions for criminal offenses, of perjury, of bribery, or of any other instances of serious misconduct that have formed the grounds of impeachment for generations. They do not target judges for misconduct or corruption, but rather solely based on whether their rulings thwart the will of those in power.
All seven impeachment resolutions strike at the heart of the judicial independence that is essential to enable the judiciary to serve as a check on the excesses of the other two branches of government in our constitutional system. This is so because judges cannot do what is expected of them if they face the threat of removal for controversial or unpopular rulings.
An Independent Judiciary is Fundamental to the Rule of Law and the American System of Government
In a rare communication outside of his regular annual report on the judiciary, Chief Justice John Roberts on March 18, 2025, pushed back on recent calls for judicial impeachment by the President and lawmakers, stating: “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.”[21] The ABA echoed the Chief Justice’s warning in a statement issued the same day.[22]
This is not to say that citizens, including members of Congress, should not be able to publicly criticize judges’ rulings, even in the strongest terms. But calls for impeachment without any suggestion of an impeachable offense, accompanied by inflammatory rhetoric, undermine the public’s trust in the rule of law and our constitutional government.
As Ninth Circuit Judge Jay Bybee wrote eight years ago in the midst of expedited litigation over another set of executive actions (the first Trump Administration’s travel ban): “personal attacks” on judges for their decisions “treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.”[23] It is noteworthy that Judge Bybee was writing in dissent from his court’s denial of en banc reconsideration of an appellate ruling affirming a lower court decision holding that the travel ban was unconstitutional.
In delivering the 1996 Leslie H. Arps Memorial Lecture, a former President of this Bar Association and former Fordham Law Dean, John Feerick, addressed the issue of judicial independence by quoting Whitney North Seymour, who wrote as ABA President in 1961:
“For more than 200 years, a free and independent Judiciary has been one of the hallmarks of the American system of government. It has been fundamental to the implementation of the rule of law, ensuring that justice will not be a servant of the political process or subject to the whims and prejudices of the moment. It has been as much a bulwark against tyranny as any other single component of our government. Indeed, all the great ideals of our Nation have come alive in our courts at the hands of judges – liberty under law, a government of laws and not men, and equal justice for all.”[24]
Dean Feerick continued in his own words:
“To begin with, we should attend to the lessons passed on to us by the Framers of the Constitution. When they spoke of the danger of the legislative or executive branches – unrestrained by an independent judiciary – they were reacting to the very real and immediate excesses of a prior system under which judges served at the pleasure of the royal prerogative. Their vision of democracy had been kindled by the Enlightenment and forged in the fire of revolution. But, they understood that their passion for liberty could not be achieved and sustained unless it was tempered by reason and protected by appropriate checks and balances on the power of government. Better than anyone else, they understood that liberty is fragile and must be nurtured and protected as much as any living thing.”[25]
Canon 3(a)(6) of the Code of Conduct for United States Judges instructs federal judges “not [to] make public comment on the merits of a matter pending or impending in any court.” Comment 3 to ABA Model Rule of Professional Conduct 8.2 states: “To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized. It therefore is the responsibility of the legal profession to speak up for principles of judicial independence and the rule of law.”
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The New York City Bar Association condemns in the strongest terms the introduction of articles of impeachment against federal district judges Engelmayer, Bates, Ali, Boasberg, McConnell and Chuang and any threats to impeach federal judges on the basis of disagreement with their rulings.
About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 23,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org
Statement Condemning Threats to Impeach Federal Judges Based on Disagreement with Rulings
