Protecting the Judiciary and the Rule of Law – Frivolous Articles to Impeach Federal Judge Filed

Courtney Buble reports that GOP Reps Move To Impeach SDNY Judge, Threaten More – Law360 (Feb. 19, 2025).  The article states: “The lawmakers contend that the judges who’ve ruled against Trump have unlawfully stripped him of his right to direct the executive branch.”

Maybe the Judges’ rulings are right.  Maybe not.  But, let’s assume they’re not correct.  There is a remedy for incorrect judicial decisions.  It’s called an appeal.  Not impeachment. 

Rep. Eli Crane has filed articles seeking to impeach Judge Engelmayer for a brief temporary restraining order that a different federal judge subsequently held was properly entered on a Complaint that was filed by nineteen sovereign States.  It is an understatement to suggest, as I do, that, where nineteen States and another federal judge reached the same conclusion as Judge Engelmayer, there are no grounds for impeachment.  As of yesterday, a different Judge entered a preliminary injunction that “substantially tracks the terms of” Judge Engelmayer’s initial order.  While the States did not prevail on every issue, they prevailed, and no ruling in this lawsuit can support impeachment of Judge Engelmayer.

This blog is not about the merits of the lawsuit.  Nor is it about administration policy.

It is about the attacks on the Judiciary for deciding the lawsuit.  I have expressed my views about these attacks recently and often.  See, e.g.,  Protecting the Judiciary and the Rule of Law (Feb. 17, 2025).

THE ROLE OF AN INDEPENDENT JUDICIARY IS WELL-ESTABLISHED

Last year, Justice Gorsuch wrote:

Having witnessed first-hand King George’s efforts to gain influence and control over colonial judges, see Declaration of Independence ¶ 11, the framers made a considered judgment to build judicial independence into the Constitution’s design. They vested the judicial power in decisionmakers with life tenure. Art. III, § 1. They placed the judicial salary beyond political control during a judge’s tenure. Ibid. And they rejected any proposal that would subject judicial decisions to review by political actors. The Federalist No. 81, at 482; United States v. Hansen, 599 U.S. 762, 786–791, 143 S.Ct. 1932, 216 L.Ed.2d 692 (2023) (THOMAS, J., concurring). All of this served to ensure the same thing: “A fair trial in a fair tribunal.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). One in which impartial judges, not those currently wielding power in the political branches, would “say what the law is” in cases coming to court. Marbury, 1 Cranch at 177.

Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 432–33 (2024)(Gorsuch, J., concurring)(Emphasis added).

REP. CRANE’S IMPEACHMENT ARGUMENT

Rep. Eli Crane’s website – –  Crane Introduces Articles of Impeachment For U.S. District Judge Paul Engelmayer – Eli Crane (Feb. 21, 2025) – – is an attack on the independent Judiciary and the U.S. Constitution. It is, by its express terms, improperly “subject[ing] judicial decisions to review by political actors.” Loper Bright, 603 U.S. at 432–33.

Rep. Crane’s website states:

Activist judges cannot stop the President from executing his Article II powers. White House employees have every right to access the very systems they oversee. President Trump campaigned on rooting out waste, fraud, and abuse from the federal government, and the American people gave him a mandate to do so,” said Rep. Eli Crane. “This is obviously judicial overreach and a clear threat to democracy. If these partisan judges want to be politicians, they should resign and run for office.

Let’s take a closer look at the facts.

JUDGE ENGELMAYER’S DECISION

Judge Engelmayer’s decision is available for review.  New York v. Trump, No. 25 CIV. 1144, 2025 WL 435411 (S.D.N.Y. Feb. 8, 2025).

Let’s start with one basic fact.  This was not a federal judge raising an issue sua sponte.  Nineteen sovereign States filed the lawsuit.  They submitted evidence and the Judge reviewed it.  Nineteen States – the laboratories of federalism – made the argument that Judge Engelmayer subsequently agreed with.  His Honor then granted a temporary restraining order, writing that:

The Court’s firm assessment is that, for the reasons stated by the [nineteen] States, they will face irreparable harm in the absence of injunctive relief…. That is both because of the risk that the new policy presents of the disclosure of sensitive and confidential information and the heightened risk that the systems in question will be more vulnerable than before to hacking. The Court’s further assessment is that, again for the reasons given by the States, the States have shown a likelihood of success on the merits of their claims, with the States’ statutory claims presenting as particularly strong. The Court’s further assessment is that the balance of the equities, for the reasons stated by the States, favors the entry of emergency relief. [Emphasis added].

What did Judge Engelmayer order?

On February 8, 2025, the Judge ordered that the defendants show cause before a different judge on February 14, 2025, why a preliminary injunction should not issue.  Judge Engelmayer restrained action from February 8^th until that February 14^th hearing.  The defendants were “ordered to direct any person prohibited above from having access to such information, records and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department’s records and systems….”

That six-day order is the purportedly impeachable offense.  What happened next?

THE FIRST PROCEEDING BEFORE JUDGE VARGAS

Pursuant to Judge Engelmayer’s order, the case was transferred to Judge Vargas for a preliminary injunction hearing.  Judge Vargas presided over an emergency motion to dissolve or modify the TRO and a motion for preliminary injunction.

Before the preliminary injunction hearing, the President and other defendants filed an emergency motion to dissolve, clarify, or modify the temporary order.

The parties were directed to negotiate on the emergency motion, and Judge Vargas wrote that: “The parties reached an agreement on proposed language modifying the February 8 TRO as it regards the issue of access by Federal Reserve employees and outside contractors.”  2025 WL 455406 at *2.  They did not reach agreement on another issue and litigated it. Id.

In Her Honors’ first decision, Judge Vargas wrote:

In entering the TRO, it was Judge Engelmayer’s clear intention, as had been requested, to maintain the status quo that existed prior to the adoption of the Agency Action described in the Complaint until such time as a hearing could be held on the preliminary injunction motion….  To the extent that the language of the TRO can be read to inadvertently preclude routine operations or maintenance of the BFS system as they existed prior to the challenged Agency Action, modification of the TRO is appropriate.

Id. at *3 (Emphasis added).  Judge Vargas modified Judge Engelmayer’s order “to the extent” it “could be read” in the way defendants objected to it.

But, Judge Vargas also wrote:

However, to the extent that Defendants seek to eliminate the TRO’s restriction on access by “political appointees” more broadly, Defs. Mem. at 5-6, the Court denies the motion. There was a sound factual basis for this central dimension of the TRO. The Complaint alleges that the challenged Agency Action includes granting “expanded access to BFS payment systems to political appointees and ‘special government employees’” affiliated with the Department of Government Efficiency….  And the harms alleged in the Complaint that Judge Engelmayer determined were sufficient to warrant the grant of the ex parte TRO are plainly linked to the alleged grant of access to the BFS payment systems to such political appointees and special government employees.

New York, 2025 WL 455406, at *3 (Emphasis added).  Having clarified the order, Judge Vargas denied the motion to dissolve the temporary restraining order.  Id. at *1.  In essence, with the exception of something that inadvertently could have been misread, Judge Engelmayer’s TRO order withstood challenge before Judge Vargas.

THE PRELIMINARY INJUNCTION PROCEEDING BEFORE JUDGE VARGAS

Yesterday, Judge Vargas granted the motion for preliminary injunction requested by the States, writing:

The preliminary injunction substantially tracks the terms of the temporary restraining order (“TRO”) that is presently in place, in that it bars the Treasury Department from granting access to any member of the DOGE team within the Treasury Department to any payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees.

New York v. Trump, 2025 WL 573771, at *1 (S.D.N.Y. Feb. 21, 2025)(Emphasis added).

Plaintiffs did not sweep the table.  Their request to go beyond Judge Engelmayer’s order was rejected:

But Plaintiffs have not demonstrated that they are entitled to the broad and sweeping relief they seek, which would far exceed the scope of the present TRO to prohibit members of the DOGE team from developing automated (or even manual) processes to halt payments coming through Treasury Department payment systems. The remedy in this case must be narrowly tailored to redress the specific harm asserted by the Plaintiffs: the threatened disclosure of the States’ sensitive bank information contained in the Treasury Department’s payment systems. Plaintiffs’ proposed preliminary injunction order is anything but narrow.

Id. (Emphasis added).

Nevertheless, the decision was an endorsement of Judge Engelmayer’ order.  In Her Honor’s second opinion, Judge Vargas wrote that: “In their TRO application, the States alleged that the Treasury Department had provided access to their data to DOGE officials who ‘were not employees of Treasury,’ in violation of federal law…. They further alleged that the ‘conduct of DOGE members presents a unique security risk to States and State residents whose data is held by BFS.’”  Id. at *7.[1]  Importantly, after consideration of all of the evidence submitted and a motions hearing, Judge Vargas “held that there was good cause to extend the Modified TRO while it considered the arguments presented by the parties.”  Id. at *10 (Emphasis added).

Why did Judge Vargas extend the TRO?  Judge Vargas wrote: “[T]here is a realistic danger that the rushed and ad hoc process that has been employed to date by the Treasury DOGE Team has increased the risk of exposure of the States’ information. Defendants themselves concede that granting such broad and unprecedented access to the members of the Treasury DOGE team created heightened security risks….  The critical sensitivity of the information contained in the BFS payment systems, which includes the PII and confidential information of both the States and millions of their residents, requires more than a band-aid approach to cybersecurity.” Id. at *12.

FEDERAL JUDGES CANNOT BE IMPEACHED FOR DECIDING FEDERAL LAW

So, should Judge Engelmayer be impeached because His Honor decided a case alleging violation of federal law?  That is what Judge Engelmayer did.  For example, Judge Vargas wrote:

The [federal Administrative Procedure Act] establishes a “basic presumption of judicial review for one suffering legal wrong because of agency action.” Dep’t of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 16-17 (2020) (cleaned up). The APA authorizes courts to set aside agency actions that are contrary to law, in excess of statutory authority, or arbitrary and capricious. 5 U.S.C. § 706(2). In Counts I and II of their Complaint, Plaintiffs assert that the United States Treasury acted contrary to law and in excess of its statutory authority “under the statutes that govern the collection, storage, handling, and disclosure of PII and confidential financial information.”

New York v. Trump, __ F. Supp. 3d __, 2025 WL 573771, at *14 (S.D.N.Y. Feb. 21, 2025).

JUDGE ENGELMAYER’S DECISION IS FAR FROM AN OUTLIER

So, I have a question for Rep. Crane – – if Judge Engelmayer was so far out of bounds that His Honor should be impeached for this decision, why did Judge Vargas reach the same conclusion? 

And, the two federal Judges were not alone.  Nineteen States filed the lawsuit:

The Complaint alleged that the United States Department of the Treasury, at the direction of the President and the Secretary of the Treasury, had adopted a new policy (the “Agency Action”) that expands access to the payment systems of the Bureau of Fiscal Services (“BFS”) to “political appointees” and “special government employees.”

Issues of federal law were presented: “The States contend that this policy, inter alia, violates the Administrative Procedure Act (‘APA’), 5 U.S.C. §§ 551 et seq.; exceeds the statutory authority of the Department of the Treasury; violates the separation of powers doctrine; and violates the Take Care Clause of the United States Constitution.”[2]

Judge Vargas – not Judge Engelmayer – wrote that: “Plaintiffs have… established that they more likely than not will prevail on their claim that the challenged agency action was arbitrary and capricious.”  2025 WL 573771, at *14.  Her Honor wrote:  “Indeed, a real possibility exists that sensitive information has already been shared outside of the Treasury Department, in potential violation of federal law.”  Id. at *20.  She wrote:

Based upon the factual record developed to date, the Court finds that Plaintiffs will more likely than not succeed in establishing that the agency’s processes for permitting the Treasury DOGE Team access to critical BFS payment systems, with full knowledge of the serious risks that access entailed, was arbitrary and capricious. While it appears that the career staff at BFS did their best to develop what mitigation strategies they could, the inexplicable urgency and time constraints under which they operated all but ensured that the launch of the Treasury DOGE Team was chaotic and haphazard.

Id. at *21.

Judge Vargas added:  “As an initial matter, everything about this process was rushed….  The process by which the Treasury DOGE Team was appointed, brought on board, and provided with access to BFS payment systems could have been implemented in a measured, reasonable, and thoughtful way. To date, based on the record currently before the Court, it does not appear that this has been the case.” Id. at *22-23.

Judge Vargas addressed – and squarely rejected – the separation of powers argument posited by Rep. Crane.  Id. at *23.  Her Honor also wrote:

Defendants’ interest in the modernization and increased efficiency in Treasury payment systems is not undercut by the relief the Court is Ordering. Indeed, taking the time to adequately mitigate potential security concerns and properly onboard members to engage in this work outweighs the Defendants’ immediate need to access and redevelop Treasury systems. Without addressing these issues, the potential consequences of a cybersecurity breach could be catastrophic.

It is undisputed that the BFS payment systems are critical to the financial infrastructure of the nation. Moreover, those systems contain sensitive PII and financial data regarding millions of American citizens. The public interest is plainly served by requiring the Treasury Department to ensure, to the maximum extent possible, the security of these systems and the information contained therein.

Of course, the States did not prevail on every argument.  Id. at *17-18, 24-25.

REP. CRANE’s ARTICLES OF IMPEACHMENT

 ALLEGE NO MORE THAN THAT

A FEDERAL JUDGE DECIDED A FEDERAL CASE

So, what are the allegedly impeachable “charges” made by Rep. Crane?  They are that the Judge ruled in a case that was before him and Rep. Crane disagrees with the decision.

In his own words, Rep. Crane wrote:

In his conduct of the office of United States District Court Judge, in which he violated his oath to the Constitution and duty of impartiality to the people of the United States, Paul A. Engelmayer has abused the powers of his judicial authority, having engaged in actions that prioritize personal and political affiliations over the duty of impartiality owed to the public and litigants as follows:

(1) Judge Engelmayer restrained President Trump and Secretary Bessent from granting access to any Department of the Treasury record, payment systems, or any other data systems maintained by the Department of the Treasury containing personally identifiable information or confidential financial information of payees; and

(2) Judge Engelmayer restrained President Trump and Secretary Bessent from granting granting [error in original] access to all political appointees, special Government employees, and Government employees detailed from another Federal agency, to any Department of the Treasury payment record, payment systems, or any other data systems maintained by the Department of the Treasury containing personally identifiable information.

This conduct has resulted in apparent bias and favoritism, representing an abuse of judicial power and is detrimental to the orderly functioning of the judiciary. Using the powers of his high office, Judge Engelmayer interfered with the will of the people.

In so doing, Judge Engelmayer used the powers of his position to engage in actions that overstep is judicial authority. By making a political decision outside the scope of his legal duties, he compromised the impartiality of our judicial system.

Wherefore, Judge Engelmayer is guilty of high crimes and misdemeanors and should be removed from office. [Emphasis added].

In my opinion, that allegation is a crystal clear statement of the alleged grounds for impeachment:  “This conduct” which took place “[i]n the conduct of the [judicial] office,” was that Judge Engelmayer “restrained” the President and Secretary and “interfered with the will of the people.”

Of course, the Constitution and judicial review are designed to limit and interfere with the will of the people.  See James Madison, Federalist 51 (1788).  For example:

It is certainly true that “[a] scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority.” Youngstown, 343 U.S., at 613, 72 S.Ct. 863 (Frankfurter, J., concurring). But any American who has studied history knows that “our government was designed to have such restrictions.” Ibid. (emphasis added). Our Constitution’s “separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but … to save the people from autocracy.” Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 71 L.Ed. 160 (1926) (Brandeis, J., dissenting).

Trump v. United States, 603 U.S. 593, 703 (2024)(Sotomayor, J., dissenting)(Emphasis added).

You can contact Rep. Crane at 202-225-3361, or 1229 Longworth House Office Bldg., info@eliforarizona.com, or if you live in his district,  Contact – Eli Crane

REP. CRANE’S IS NOT THE ONLY CHALLENGE TO THE JUDICIARY

The Law360 article reports that:

Rep. Andrew Clyde, R-Ga., has also been teasing forthcoming impeachment efforts, specifically for Chief U.S. District Judge John McConnell Jr. of the District of Rhode Island.  “He’s a partisan activist weaponizing our judicial system to stop President Trump’s funding freeze on woke and wasteful government spending,” Clyde wrote on social media last week. “We must end this abusive overreach. Stay tuned.”

For more about Rep. Clyde’s attempt, see E. Elkind and D. Stancy, Impeachment threat hits judge who blocked Trump federal funding freeze (undated)(“Rep. Andrew Clyde, R-Ga., is threatening to file articles of impeachment against a federal judge who blocked President Donald Trump’s federal funding freeze.  ‘I’m drafting articles of impeachment for U.S. District Judge John McConnell Jr.,’ Clyde wrote on X.”); S. Clark, Judge John McConnell Jr Faces Impeachment for Obstructing Trump – Newsweek (Feb. 14, 2025)(“The judge who said that President Donald Trump’s administration had ignored his court order to restart the flow of federal funds, has had articles of impeachment drafted against him. U.S. District Judge John McConnell Jr. told the White House that it must abide by the preliminary injunction to halt its funding freeze.”).

You can contact Rep. Clyde at 202-225-9893, 445 Cannon HOB, Washington, DC 20515,  at Contact | U.S. Representative Andrew S. Clyde but you need to know your four digit zip code extension and live in his district.

THE INDEPENDENCE OF THE COURTS MUST BE DEFENDED BY ALL OF US,

WHETHER OR NOT YOU AGREE WITH A DECISION OR A POLICY

As a postscript, this is not a political blog.  This is about the Constitution and an independent Judiciary.  I am a former Army paratrooper, was an infantry Captain, and served a year with the 2^nd Infantry Division in Korea in 1974.  I was awarded the Armed Forces Expeditionary Medial, Korea Defense Service Medal, Army Commendation Medal, National Defense Service Medal, and Expert Infantry Badge.  It wasn’t war and I’m not a hero by any means, but like all Americans, I have the right to speak out.

Regardless of policy or administration, this attack on the judiciary is dangerous.

The Hon. Paul W. Grimm (ret.) wrote that:  “While the arguments for and against DOGE access to this information will continue to be debated in court and around the country, Judge Engelmayer has quickly become a target of unfair, unwarranted threats and attacks lobbed via social media and news outlets across the country….. Right now, the tirade online against ‘activist judges’ and ‘illegitimate courts’ is mostly unanswered. We must be the ones to answer in defense of the judiciary. We must vigorously defend judges and the courts as they navigate unprecedented challenges to the separation of powers and the scope of the executive branch’s authority.”  Letter from Paul W. Grimm Regarding Threats and Attacks on Judges (Feb. 11, 2025)(Emphasis added).

That’s not political.  It’s patriotic. The motto of the U.S. Army is: “This we’ll defend.”

UPDATE  3/1/2025:  Rep. Derrick Van Orden has also filed for impeachment of Judge Engelmayer.  Text – H.Res.143 – 119th Congress (2025-2026): Impeaching Paul Engelmayer, judge of the United States District Court for the Southern District of New York, for high crimes and misdemeanors. | Congress.gov | Library of Congress.  Article I asserts misconduct and abuse of authority.  Article II asserts abuse of power.  The central allegation is that the Judge “engaged in judicial misconduct when he halted President Donald J. Trump’s Executive order establishing and implementing the President’s Department of Government Efficiency on purely political grounds, demonstrating clear bias and prejudice against the President and the 74,000,000 Americans who voted for him.” It is alleged that he willfully disregarded “established legal precedent in the issuance of rulings, by submitting this injunction in the middle of the night, which may have been done with the intent to influence the outcome of cases to favor certain parties.”

“Marin Levy, a Duke University School of Law professor who studies the federal judiciary, said impeachment under the U.S. Constitution is supposed to be reserved for serious misconduct, not disappointment with court decisions, which can be appealed.” N. Raymond, Republican lawmaker seeks US judge’s impeachment over ruling against Trump | Reuters (Feb. 19, 2025)(Emphasis added). “Articles of impeachment filed against judges who are simply performing their constitutional role represent an attempt to politicize the judiciary and quite frankly to intimidate judges,” Levy said.  Id.

______

[1] After briefing and review of defense affidavits, none of which were available to Judge Engelmayer, the States narrowed their requested injunction.  2025 WL 573771, at *9 and n. 1.

[2] “In their Complaint, Plaintiffs assert claims under the APA, a common law claim that the Defendants have acted ultra vires, and constitutional claims that Defendants’ actions violate the separation of powers doctrine and the Take Care Clause of the United States Constitution.”  New York v. Trump, 2025 WL 573771, at *14 (S.D.N.Y. Feb. 21, 2025)