“If impeachment proceedings were started against Aileen Cannon in 2029, would she be protected because her conduct occurred in 2023 and 2024? That is, is there a statute of limitations that might apply?” — Lynn
Hi Lynn,
There’s no statute of limitations issue in the scenario you raise. That would be more relevant if we were talking about criminal charges as opposed to impeachment.
Yet, I think it’s important to consider your question in light of a hearing that happened this week in the Senate Judiciary Committee.
At the hearing, titled “Impeachment: Holding Rogue Judges Accountable,” Republicans led by Sen. Ted Cruz of Texas argued for impeaching two judges who were appointed by Democratic presidents and have used their judicial powers to do things that Republicans haven’t liked.
Those two judges are James Boasberg, an Obama appointee in Washington, D.C., and Deborah Boardman, a Biden appointee in Maryland. When it comes to Boasberg, Republicans have complained about orders he issued regarding Republicans’ phone records sought by then-special counsel Jack Smith in his 2020 election subversion investigation. Boardman’s impeachable act, per the GOP, was sentencing Supreme Court Justice Brett Kavanaugh’s would-be assassin to eight years in prison, a term well below the sentencing guidelines that judges consider but aren’t bound by.
These two Democratic-appointed judges have ruled against the Republican administration on other significant issues, such as the deportations without due process under the Alien Enemies Act and Trump’s bid to upend birthright citizenship. Plenty of Republican-appointed judges, including Trump appointees, have ruled against the administration, but they weren’t the focus of the GOP-led hearing. The predictable dynamic is understandable as a matter of political talking points, but it’s hard to take seriously as warranting the awesome power of impeachment to remove federal judges from their life-tenured posts.
And yet, here we are.
To be sure, people are free to criticize judges’ actions. I’ve written my own share of such criticism, which people are free to criticize in turn, and on and on.
But as Chief Justice John Roberts reminded the nation last year after Trump called for impeaching Boasberg, the way to challenge a judicial ruling is to appeal it, not to impeach the judge. Indeed, the Justice Department has taken the rare step of appealing the sentence Boardman issued in the Kavanaugh case. The DOJ is perfectly within its rights to do so. That’s how the system works.
Cruz and his GOP colleagues want to change the system. Georgetown University law professor Steve Vladeck explained to the Judiciary Committee that, since the Senate acquitted Justice Samuel Chase in his 1805 impeachment trial, “13 federal judges have been impeached — none for the substance of their rulings; for claims of partisan bias; or based on assertions that they were somehow ‘rogue’ or ‘activist.’” Vladeck argued: “It’s not just that we haven’t impeached judges because of disagreement with their rulings; it’s that we shouldn’t.”
I agree. Let’s keep that in mind as we turn back to Judge Cannon. If we were to enter the business of impeaching judges over their rulings, then the Florida judge appointed by Trump in his first term would make a fine candidate. Before Trump was even charged in the classified documents case, Cannon was reversed by an appeals court over her unusual, Trump-friendly handling of litigation regarding evidence seized from Mar-a-Lago. She then proceeded to handle the criminal case in weird ways that benefited the defendant who put her on the bench. Her avant-garde approach culminated in her pretrial dismissal of the indictment on the grounds that Smith was unlawfully appointed. (Trump’s 2024 election victory cut short Smith’s appeal of her dismissal.) The judge then took so long to rule on motions seeking the release of Smith’s report on the investigation that the appeals court said she engaged in “undue delay” and gave her a deadline to finally rule. She still seems intent on keeping the report secret as long as she has the power to do so. Quite the judicial résumé. But I maintain the view that impeaching judges for their rulings — or failures to rule, as has been a hallmark of Cannon’s handling of Trump-related litigation — is not a business we want to enter. That’s so even if it benefits bad judges (as distinct from corrupt judges). But if we do step into that murky territory and Democrats gain congressional control, Cannon wouldn’t have a statute of limitations defense. Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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