President Donald Trump and Elon Musk want to impeach federal judges that stand in their way. History shows there is little chance of that happening.
On Tuesday, Trump wrote on Truth Social that a judge who fit US District Judge James Boasberg’s description “should be IMPEACHED!!!” Trump and his allies have expressed fury that a Boasberg order restricted his deportation efforts.
And earlier, Musk wrote on X on February 12, “Impeach this activist posing as a judge! Such a person does great discredit to the American justice system.” The message quoted criticism of US District Judge John J. McConnell Jr., who had temporarily blocked the administration’s funding freeze.
Republicans’ efforts are likely trying to grind down views of the federal judiciary, according to Indiana University law professor Charles Geyh. In doing so, Trump may ultimately wish to open the door to defying court orders.
“If you trace the arc of this story, the arc so far would seem to lead you in the direction of saying, ‘well, ok, shrug this off, this is just yet another feeble attempt at impeaching judges that has never worked and certainly never advanced in a hundred years,’” Geyh, an expert on judicial ethics, told Business Insider.
Now, the context is different, he said. “President Trump is going after the judiciary in multiple ways simultaneously.” His playbook is “overwhelm them, it’s potentially defy their orders, and it’s threaten them with impeachment.”
Trump and the White House have repeatedly said he won’t defy federal court orders. It remains contested if the administration ignored US District Judge James Boasberg’s order last weekend to temporarily halt deportations under the 1789 Alien Enemies Act which Trump formally invoked.
Requests for comment to the White House and Musk from BI went unanswered.
Trump and Musk have hammered judges throughout the past week, particularly Boasberg. White House press secretary Karoline Leavitt also called out Boasberg’s wife’s political donations.
Chief Justice Roberts has tried to calm the waters
Chief Justice John Roberts, appointed by Republican President George W. Bush, tried to stop the tide by releasing a rare statement decrying judicial impeachments after Trump endorsed removing Boasberg.
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said. “The normal appellate review process exists for that purpose.”
Trump said he respected Roberts’ views. Yet a day later, the president’s political operation sent an email that linked to a fundraising page with the subject line, “Impeach, Impeach, Impeach.”
“Am I right friend? — Should deranged, power-hungry judges who let violent criminals roam free — putting your life and your family in grave danger — be impeached?” the email, signed by Trump, read.
Yet the threshold to impeach and remove an official is high, which Trump knows well, having been acquitted by the Senate a record two times.
The process for impeaching a judge mirrors that of a presidential impeachment. Charges must originate in the US House of Representatives. If a majority of lawmakers vote to impeach a judge, their charges are then forwarded to the Senate. It ultimately takes two-thirds of the Senate, or 67 senators, to convict a judge of impeachment.
Republicans only hold 53 seats in the Senate. It’s unlikely that enough Democrats would support such a measure to reach the threshold.
Only 14 judges have been impeached throughout history
House lawmakers have impeached 14 federal judges and one Supreme Court justice, Samuel Chase, throughout history. Of those 15, only eight have been convicted. Former District Judge G. Thomas Porteous, Jr. was the last federal judge impeached. Lawmakers charged Porteous in 2010 with accepting bribes and committing perjury. He was later convicted and removed from office.
Geyh said that in early American history, some leaders tried to go after judges for their rulings. While threats cropped up at times, politicians began to respect that there were limits to their responses.
“Over time, this norm developed that judicial independence requires that we not go after judges because we disagree with their decisions, even if we think they are high-handed, even if we think they are activists,” Geyh said.
Federal judges who receive lifetime appointments also cannot be removed from office without impeachment. There is also no official retirement age, though judges are eventually eligible to take senior status, a semi-form of retirement.
Impeaching a judge for a decision would be a significant escalatory step, said Michael J. Gerhardt, a constitutional law professor at the University of North Carolina School of Law in Chapel Hill.
“In over 200 years, no federal judge has ever been impeached and removed from office based on their decision,” Gerhardt, who has written a book about the history of impeachment, told BI.
“Not one, and that tells us something. Impeachment is not the appropriate process to use if you disagree with what a judge rules.”
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