President Donald Trump has always had a skeptical view of judicial independence. He’s long praised those who rule in his favor as wise jurists while denouncing any who rule against him as biased and not worthy of their robes. But he reached a new low in this area on Tuesday, when he called for U.S. District Judge James Boasberg to be impeached for halting his attempts to ship Venezuelan migrants to El Salvador.
This escalation added fuel to an already simmering debate on the right about how to respond to federal judges who block Trump’s agenda. Chief Justice John Roberts and billionaire Elon Musk have weighed in on opposite sides of Trump’s call to impeach Boasberg. And both Musk’s and Roberts’ positions are wrong.
Both Musk’s and Roberts’ positions are wrong.
The chief justice prompted breaking news push alerts on Tuesday when he issued a rare statement criticizing Trump’s call for impeachment. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” he wrote. “The normal appellate review process exists for that purpose.”
Throughout his career, Roberts has loved to hunt for the smallest nuance that can leave him technically correct. And here, again, he does have a point. Article III, Section 1 of the Constitution says federal judges “shall hold their Offices during good Behavior.” This has been interpreted as granting them essentially lifetime appointments, in which they can’t just be replaced because political control changes hands in Washington.
The exception, of course, is when federal judges are impeached, something that has happened 15 times since the nation’s founding. Article II of the Constitution lays out frustratingly vague grounds for impeachment of the president and other “civil Officers of the United States”: “Treason, Bribery, and other high Crimes and Misdemeanors.” The standard established over the years is that federal judges are impeachable only for actions taken outside the normal bounds of their role.
But Roberts also well knows that impeachment is a political tool, not a legal one. The question isn’t whether impeachment is constitutional or legal; it’s whether it would be, as the chief justice puts it, “appropriate.”
The Constitution gives the power of impeachment to the legislative branch, not the judicial branch. Article I states that the House has the “sole Power of Impeachment,” while the Senate has the “sole Power to try all Impeachments.” Unlike under the Federal Standards of Criminal Procedure that prosecutors must adhere to in court, the bar for investigating impeachable offenses and determining guilt is essentially whatever the House and the Senate says it is. And the courts have constantly upheld the idea that they can’t really step in on matters of impeachment, including against members of the bench, as those powers are given solely to Congress. In theory, there’s nothing stopping Republicans from lining up an impeachment vote on every federal judge a Democratic president has named.
Which brings us to Musk, who has endorsed an “impeachathon” event that far-right Rep. Andy Ogles, R-Tenn., plans to hold online, targeting at least 11 judges for removal. On Wednesday, he said on X that America is experiencing a “judicial coup” that requires “60 senators to impeach the judges and restore the rule of the people.” As my colleague Jordan Rubin explained, Musk is instantly wrong on several fronts here, including the threshold for removal in the Senate. It requires two-thirds of the Senate to agree, or 67 votes, which is 14 more than the GOP currently has in its caucus.
The floundering that we’re seeing because Trump hates losing is all very funny to me, personally, amid a very unfunny time. It’s up to the House to impeach an official first, though, and there’s a math problem there, too. Republicans do control the House and need only a majority vote to impeach. But that majority is so narrow that Speaker Mike Johnson, R-La., has little room for error for anything to pass on a party-line vote. That didn’t stop Rep. Brandon Gill, R-Texas, who wrote on X on Tuesday that he had introduced articles of impeachment against Boasberg. That makes Boasberg the fifth federal judge to have articles filed against him since Trump was inaugurated but the first with the president’s endorsement. This situation is set to be a political headache for Johnson. The speaker already has enough on his plate, including passing a major tax cut plan and other parts of the Trump agenda. Now he also is feeling pressure from his right flank to at least consider impeaching judges, something that at best crowds the House’s schedule further and calls attention to Trump’s consistent losses in court. Johnson was in a similar position last year when dealing with the laughable attempts to impeach President Joe Biden. This year, though, Trump is on his case from the White House, not Mar-a-Lago. Even if Johnson does push through an impeachment resolution or two, those are simply analogous to a prosecutor’s filing charges in the criminal justice system. The Senate would hold the trial, and Politico reports that there is simply no appetite for that right now in the upper chamber. Yes, the Senate could conduct those trials via a specialized committee to keep the proceedings from taking up time on the floor. But a show trial behind closed doors that ends in acquittal would be doubly pointless. The floundering that we’re seeing because Trump hates losing is all very funny to me, personally, amid a very unfunny time. Impeachment should be used to hold public officials accountable, especially those who are unelected, but it’s been shown to be toothless in cases when partisanship can come into play. In this case, what is almost always taken as a flaw in the system is ironically exactly what’s preventing impeachment from being abused to Trump’s benefit.
Hayes Brown is a writer and editor for MS NOW Daily. 
