Another Judicial Impeachment Effort?  What Would Justice Rehnquist Say?

Rep. Randy Fine has filed an article of impeachment against the Hon. Charles Breyer for His Honor’s ruling in Newsom v. Trump, __ F. Supp. 3d __, 2025 WL 1663345 (N.D. Cal. June 12, 2025), stay granted, __ F. 4^th __, 2025 WL 1712930 (9th Cir. June 19, 2025). The lawsuit is a challenge by the Governor of California to the deployment of the National Guard by the President.

PREQUEL

The late Chief Justice William Rehnquist wrote a book about judicial impeachment.  Douglas Keith discussed the book in Impeachment and Removal of Judges: An Explainer | Brennan Center for Justice (Feb. 12, 2025).  Mr. Keith wrote:

If legislators were to impeach judges for purely political reasons, they would be tossing aside a centuries-old understanding that if the impeachment power is used to punish judges for their rulings, it undermines the vital independence of the judicial branch…  [T]he impeachment power has historically been limited to cases of serious ethical or criminal misconduct.

Mr. Keith cited Chief Justice Rehnquist “who wrote a book examining the history of judicial impeachment….” The Chief Justice “found that early historical uses of the impeachment power established a norm that ‘judicial acts — their rulings from the bench — would not be a basis for removal from office by impeachment and conviction.’”  Id. Mr. Keith continued:

According to Rehnquist, the attempted removal of Supreme Court Justice Samuel Chase in 1804 was, in particular, “enormously important in securing the kind of judicial independence contemplated by” the Constitution. President Thomas Jefferson, a Democratic-Republican, encouraged the House to impeach Chase, a Federalist, after Chase openly criticized the president and his policies to a Baltimore grand jury. In addition to the charge that his partisan statements undermined the judiciary, the charges against Chase ultimately included inflated allegations of misconduct in several trials. The House impeached Chase in 1804, but the following year, the Senate declined to convict, despite Jefferson’s party holding a supermajority. This failed impeachment helped set the bounds of the proper use of the impeachment power — including that judicial decisions should not be a basis for removing judges from the bench. [Emphasis added].

Mr. Keith continued:

Despite this historical understanding, there have continued to be attempts to use the impeachment power for partisan reasons. In the heat of the 1996 presidential campaign, for example, both candidates — President Clinton and Sen. Bob Dole — attacked a sitting federal district court judge for ruling evidence inadmissible in a case against a drug courier and indicated they would support the judge’s removal. Four sitting appeals court judges joined together in a remarkable statement to condemn the political attacks on Judge Harold Baer Jr., explaining that the Constitution does not “provide for resignation or impeachment whenever a judge makes a decision with which elected officials disagree.” [Emphasis added].

REPRESENTATIVE RANDY FINE’S IMPEACHMENT EFFORT

Yesterday, John Baker reported that Impeachment Filed After Judge’s Anti-Trump Ruling.  The article states that: “Rep. Randy Fine (R-LA) [sic] has introduced an impeachment resolution against U.S. District Judge Charles Breyer for having blocked President Donald Trump’s National Guard deployment during riots in Los Angeles. Fine has claimed that Breyer’s ruling undermined Trump’s authority and called for greater judicial accountability. In response to civil unrest, Trump bypassed Democratic California Governor Gavin Newsom and has ordered the National Guard’s deployment.” See also E. Elkiind, California judge hit with impeachment threat after Trump National Guard standoff | Fox News (June 27 2025)(Rep. Fine “told Fox News Digital that he felt the judge’s decision was ‘political.’”).

According to a news report, this is not Rep. Fine’s first demand to impeach a judge.  “Florida State Representative Randy Fine, a supporter of the state’s controversial ‘don’t say gay’ bill, has been ordered to complete an eight-hour anger management class after being held in civil contempt of court….  Circuit Judge Scott Blaue found Fine in contempt for making obscene gestures, including allegedly giving the middle finger during a virtual court hearing on August 19.”  F. Nicholls, Florida Republican Sent to Anger Management Class Over ‘Offensive’ Gesture – Newsweek (Oct. 2, 2024).  “For at least 33 minutes during the hearing, Mr. Fine was making those gestures and mouthing those words, which included ‘Eff You’,” the Judge wrote. Id. The Newsweek article continues:

Fine escalated his criticism of the judge, calling on Florida House leaders to open impeachment proceedings against Judge Blaue.

In a letter to outgoing Florida House Speaker Paul Renner and Speaker-designate Daniel Perez, Fine accused Blaue of acting with “reckless disregard for our Constitution,” and suggested that Blaue’s behavior towards a legislator indicated potential abuse against ordinary citizens. “I stand ready to assist in holding this dangerous Judge accountable,” Fine wrote.

Rep. Fine’s current impeachment effort, H.Res. 556, is posted at Text – H.Res.556 – 119th Congress (2025-2026): Impeaching Charles R. Breyer, Senior Judge of the United States District Court for the Northern District of California, for high crimes and misdemeanors. | Congress.gov | Library of Congress

The single article asserts “high crimes and misdemeanors.”  Article I alleges “abuse of power.” It states that the Judge “did knowingly and willfully use his judicial position to advance political gain while interfering with the President’s constitutional prerogatives and enforcement of the rule of law.” The allegation is that the Judge “attempted to use his power to prevent President Trump from using the National Guard to enforce the law in Los Angeles, California.”

The Judge allegedly “required President Trump to ignore the Constitution of the United States to return the National Guard to the Governor of California.” The article concludes:

This conduct jeopardizes the safety of the Nation, represents an abuse of judicial power, and is detrimental to the orderly functioning of the judiciary. Using the powers of his office, Senior District Judge Charles R. Breyer has attempted to seize power from the executive branch and interfere with the will of the American people.

In so doing, Senior District Judge Charles R. Breyer used the powers of his position to engage in actions that overstep his judicial authority. By making a political decision outside the scope of his judicial duties, he compromised the impartiality of our judicial system and created a constitutional crisis.

Wherefore, Senior District Judge Charles R. Breyer is guilty of high crimes and misdemeanors and should be removed from office.

MY PRIOR BLOGS ON ILL-FOUNDED IMPEACHMENT

& INTIMIDATION EFFORTS

I have written several blogs about this topic.  In most, I suggested that we look at the facts.  As in the prior blogs, this is not about the merits of any decision or about politics – – it focuses on the effort to impeach a federal judge for issuing a decision in federal court interpreting federal law when the person seeking impeachment disagrees with the court’s decision.

I wrote several times that “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.”

• Protecting the Judiciary – Bolch Judicial Institute (Mar. 23, 2025)
• “Pizzas Sent to Judges’ Homes in Name of Judge’s Murdered Son” (Apr. 17, 2025)
• Protecting the Judiciary – Again
• Protecting the Judiciary Against This Ill-Advised “Impeachathon”
• Protecting the Judiciary –  Article of Impeachment:  “It’s Déjà vu All Over Again”[1]
• Protecting the Judiciary From Another Dangerous, Fact-Free Impeachment Demand
• Protecting the Judiciary and the Rule of Law – Frivolous Articles to Impeach Federal Judge Filed
• Protecting the Judiciary and the Rule of Law
• Maryland’s Protection of the Judiciary (Apr. 10, 2024);
• American Bar Association Statement on Threats Against the Judiciary (Apr. 8, 2024);
• Maryland Bills to Protect Judges and Their Children (Feb. 23, 2024);
• I Hear Crickets From the American Bar Association About Threats Against Colorado Justices (Jan. 27, 2024);
• Judge Paul Grimm: The Judiciary is Under Attack.  Lawyers Need to Defend It (Oct. 24, 2023); and,
• Threats Against the Colorado Supreme Court Must Be Called Out (Dec. 23, 2023).
• Maryland Passes “Watered-Down Judicial Security Bill” (Apr. 12, 2025)
• Judicial Conference of the U.S. – Inadequate Funding for Security (Apr. 23, 2025).

See also:

• Why Impeachment Threats Against Judges Will Fail: Legal Insight (Bloomberg Mar. 6, 2025);
• Letter from Paul W. Grimm Regarding Threats and Attacks on Judges (Feb. 10, 2025); and,
• The Judiciary Is Under Attack. Lawyers Have a Duty to Defend It (Bloomberg Law Oct. 24, 2023).

THE HON. ANDRE M. DAVIS’ (RET.) ARTICLE

As a Maryland citizen, the attacks on the Judiciary are particularly pointed.  All 15 Judges of the United States District Court for the District of Maryland have been sued. C. Johnson, DOJ launches unusual lawsuit against entire federal district court in Maryland : NPR (Jul. 8, 2025); J. Barker, . Baltimore hearing scheduled in Trump administration’s suit against Maryland federal judges (Jul. 9, 2025).[1] The NPR article quotes the Hon. Andre M. Davis (ret):

“It’s outrageous that they actually named individually in their official capacities all 15 judges on the court,” said Davis. “And so you have to ask yourself, ‘What is going on here? What kind of performance? What was the audience for this?'”… Davis said what’s going on is an attack on judicial independence, at a time when federal judges are facing a rise in threats of violence and impeachment simply for doing their jobs.

Judge Davis recently wrote an opinion piece, The safety of American judges is bipartisan (Baltimore Sun Jul. 6, 2025).  His Honor wrote:

“The independence of the Judicial Branch is jeopardized when judges are threatened with harm or impeachment for their rulings,” Judge Robert J. Conrad Jr., director of the Administrative Office of the U.S. Courts and secretary of the Judicial Conference, stated in a congressional hearing in May. “Our constitutional system depends on judges who can make decisions free from threats and intimidation. This is essential not just for the safety of judges and their families, but also to protect our democracy.”…

As a retired judge, I have decided to act. That is why I joined Keep Our Republic’s Article III Coalition — a group of over 40 retired federal judges appointed by Presidents Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama — whose formation comes at an essential moment in our country’s history….

For more on that organization, see “Article III Coalition” Formed to Protect the Judiciary – “Keep Our Republic” (May 3, 2025).

Judge Davis continued:

There is a reason our constitutional oath requires that we decide cases without “fear or favor.” Favor is immediately clear. A judge biased toward one party cannot dispense justice. But fear, too, impedes the independence of a judge. A judge who is afraid a ruling may elicit violent retribution faces a grave challenge in their commitment to act impartially.

As the chief justice concluded in his 2024 report, “violence, intimidation, and defiance directed at judges because of their work undermine our Republic, and are wholly unacceptable.”

For what its worth, I agree.

JUDGE BREYER’S DECISION & THE NINTH CIRCUIT

Judge Breyer’s decision is reported at Newsom v. Trump, __ F. Supp. 3d __, 2025 WL 1663345 (N.D. Cal. June 12, 2025).

The Ninth Circuit

On June 19, 2025, the U.S. Court of Appeals for the Ninth Circuit entered a stay pending appeal.  Newsom v. Trump, __ F. 4^th __, 2025 WL 1712930 (9th Cir. June 19, 2025).

The Ninth Circuit wrote: “In general, the Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’ ”  Id. at *5.

And, that is exactly what Judge Breyer did.  Nothing more.  Nothing less.  His Honor fulfilled his responsibility as a Judge.

The issues were complex and nuanced. The current procedural status is that Judge Breyer’s decision was stayed pending appeal.

Judge Breyer may be right.  His Honor may be wrong, and the Ninth Circuit wrote that it is likely that Judge Breyer was wrong: “Affording appropriate deference to the President’s determination, we conclude that he likely acted within his authority in federalizing the National Guard….” Id. at *12 (Emphasis added).

But far from suggesting anything even remotely approaching impeachment, the Ninth Circuit wrote:  “The question we must answer is: To what extent has Congress, in § 12406, committed the challenged decision to the President’s discretion? This question is purely a matter of statutory interpretation, and it is justiciable.” Id. at *6 (Emphasis added).  In other words, federal Judge Breyer was deciding a question of federal statutory law.  Judges do that every day.

The Ninth Circuit continued:

After all, it remains “emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). This includes “determining the limits of statutory grants of authority,” Stark v. Wickard, 321 U.S. 288, 310, 64 S.Ct. 559, 88 L.Ed. 733 (1944), and “determin[ing] whether [a government official] did exceed his powers” granted by the statute, Harmon v. Brucker, 355 U.S. 579, 582, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958) (per curiam).

Id. While the Ninth Circuit “likely” disagrees with Judge Breyer’s conclusion, it clearly holds that the decision was His Honor’s to make in the first instance.  Fulfilling a judicial duty is not impeachable.  In my opinion, the Ninth Circuit decision entirely undercuts the frivolous impeachment effort.

What Has Happened Since the Ninth Circuit Decision?

On June 16, 2025, Governor Newsom filed a Motion for Preliminary Injunction. Two days later, the President and U.S. defendants filed their opposition to the motion. The next day, the Governor filed a reply.

Proceedings were held on June 20^th and the docket states that supplemental briefing was ordered.  On June 23^rd, the Governor filed a supplemental brief regarding jurisdiction and requesting expedited discovery.  The U.S. also filed a supplemental brief.

On June 25^th, Judge Breyer entered an order regarding discovery as to plaintiffs’ motion for preliminary injunction. On July 3^rd, the docket reads in part: “STIPULATION WITH PROPOSED ORDER to Enlarge Time to Respond to Expedited Discovery and Set Briefing on Discovery Disputes filed by Donald J. Trump, Pete Hegseth, U.S. Department of Defense.’  Newsom et al v. Trump et al, Docket No. 3:25-cv-04870 (N.D. Cal.).  The stipulation was granted on July 4, 2025.

Nothing in the court record even colorably supports Rep. Fine’s articles of impeachment. What Would Justice Rehnquist Say?

UPDATE: M. Naham,  Appellate court orders Trump admin and Newsom to respond after lone judge suggests reevaluating National Guard ruling that deferred to the president (Jul. 11, 2025)(“The 9th U.S. Circuit Court of Appeals revealed Friday that one of the judges on the court requested a poll of colleagues on whether the full panel — en banc — should reevaluate a ruling that deferred to President Donald Trump on federalizing California’s National Guard…. At a minimum, the polling request means that the Trump administration DOJ and lawyers representing Gov. Gavin Newsom, D-Calif., will have to file briefs against or for that proposition with seven days.).

UPDATE:

Resources:

Statement of the American Bar Association: ABA stands firmly with statement of Chief Justice John Roberts in rejecting inappropriate calls for judicial impeachment (Mar. 18, 2025).

American Bar Association president speaks out against attacks on judges and lawyers : NPR (Mar. 11, 2025).

ABA condemns remarks questioning legitimacy of courts and judicial review (Feb. 11, 2025).

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[1] The Complaint in U.S. v. Chief Judge Russell, et al., is posted at gov.uscourts.mdd.584990.1.0.pdf (“This lawsuit involves yet another regrettable example of the unlawful use of equitable powers to restrain the Executive.”).