Commentary: “Ex-Judges See ‘Grave Threat in Trump Official’s ‘War’ Talk” And “Senate Committee to Investigate Impeachment of Judges”

“DOJ’s No. 2 Official Asks Lawyers to Join ‘War’ Against Judges“

November 7, 2025

“Judges don’t have to recuse if sued by litigant, MD ethics committee rules”

August 12, 2026

Published by Michael Berman at November 16, 2025

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Courtney Bublé reported on a Senate Committee To Investigate Impeachment Of Judges – Law360 (Law360 Nov. 10, 2025), while Jacqueline Thomsen reported that Ex-Judges See ‘Grave Threat’ in Trump Official’s ‘War’ Talk (1) (Bloomberg Law Nov. 13, 2025).

A GRAVE THREAT

For background on Todd Blanche’s call for war against judges, please see “DOJ’s No. 2 Official Asks Lawyers to Join ‘War’ Against Judges” (Nov. 7, 2025). In brief summary, Todd Blanche reportedly said “It’s a war, man,” in a discussion of the relationship between the executive branch and the federal judiciary.

Ms. Thomsen wrote that “[a] group of former federal judges is pushing back against a Trump administration official’s call for attorneys to join the ‘war’ against the judiciary.”

That group, the “Keep Our Republic’s Article III Coalition,” said that Mr. Blanche’s language “poses a grave threat to the rule of law and the judiciary.” Id. (emphasis added). For more information on the “Article III Coalition,” please see “Article III Coalition” Formed to Protect the Judiciary – “Keep Our Republic” (May 3, 2025).

The Bloomberg article states that Mr. Blanche responded “lol” when the New York State Bar Association issued a statement criticizing his remarks.

It also states that former appellate judge Allyson Duncan said that the Constitution did not “design a system of government built on warfare between the branches.” Instead, the founders “built a system of deliberate tension” in which each branch is a check on the others.

IMPEACHMENT HEARING SCHEDULED

WITHOUT WITNESSES, THEN POSTPONED

Law360 reported: “Thus far, this year House Republicans have introduced 10 resolutions for impeaching federal judges.”

Ms. Bublé wrote that the Senate Judiciary Committee, chaired by Sen. Ted Cruz, scheduled a hearing next week to consider the impeachment of allegedly “rogue” federal judges. Law360 states: “The committee’s Federal Courts, Oversight, Agency Action and Federal Rights hearing titled ‘Impeachment: Holding Rogue Judges Responsible’ will take place on Nov. 18 at 2:30 p.m. So far, no witnesses are listed.”

The Senate website now states that the hearing is postponed to a date “TBD.” POSTPONED: Impeachment: Holding Rogue Ju… | United States Senate Committee on the Judiciary.

Before the postponement, Ms. Bublé reported on two divergent views. On the one hand:

“From sweeping and unlawful nationwide injunctions to reckless nondisclosure orders, the judicial branch has increasingly become a battleground for lawfare,” said Sen. Chuck Grassley, R-Iowa, chair of the Senate Judiciary Committee in a statement to Law360. “The Subcommittee on Federal Courts is examining this issue as part of the Judiciary Committee’s ongoing efforts to seek accountability and conduct oversight of government weaponization.”

Id.

On the other hand, Senator Sheldon Whitehouse, the ranking Democrat, made a point I have blogged about: “Impeachment is a wholly improper remedy when you disagree with a ruling from a federal judge, and lawmakers shouldn’t be feeding into threats against the judiciary with a hearing like this.” Id.

THESE FACT-FREE IMPEACHMENT EFFORTS

CONTRADICT HISTORICAL PRECEDENT

In Impeachment and Removal of Judges: An Explainer | Brennan Center for Justice (Feb. 12, 2025), Douglas Keith cited former Chief Justice William Rehnquist “who wrote a book examining the history of judicial impeachment….” The former 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 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.

In short, that is the historical precedent. Justice Kavanaugh wrote that “[A] page of history is worth a volume of logic….” United States v. Russell, 2025 WL 2448955, at *18 (D. Md. Aug. 26, 2025), appeal pending, quoting Free Enters. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh, J., dissenting)(further citation omitted).

I have repeatedly suggested in the blogs linked below that, if one reads the judicial opinions, the impeachment efforts are fact-free. Any full and fair reading of the judicial decisions challenged by Articles of Impeachment will show that the trial judges, who were assigned cases by the courts on which they sit, applied standard principles of legal analysis.

I wrote several times – and repeat here – 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.”

These impeachment efforts are not only lacking in factual or legal support, in my opinion, they are also dangerous. For example, all 15 Judges of the United States District Court for the District of Maryland were unsuccessfully sued by the executive branch. 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).

That case was U.S. v. Russell, 2025 WL 2448955 (D. Md. Aug. 26, 2025). The trial judge wrote that “these are not normal times – at least regarding the interplay between the Executive and this coordinate branch of government.” Id. at *2. The trial judge wrote that the Executive chose a “confrontational” path, adding:

Any fair reading of the legal authorities cited by Defendants leads to the ineluctable conclusion that this court has no alternative but to dismiss. To hold otherwise would run counter to overwhelming precedent, depart from longstanding constitutional tradition, and offend the rule of law.

All of this isn’t to say that the Executive is without any recourse; far from it. If the Executive truly believes that Defendants’ standing orders violate the law, it should avail itself of the tried-and-true recourse available to all federal litigants: It should appeal.

Id. at *3. In short, in my view, there was no merit to the Executive’s attack on the judiciary. In my view, legislative attacks based on the same arguments fare no differently. The Russell Court emphasized that each branch must be able to exercise its powers without encroachment by another. Id. at *5.

In their wisdom, the Constitution’s framers joined three coordinate branches to establish a single sovereign. That structure may occasionally engender clashes between two branches and encroachment by one branch on another’s authority. But mediating those disputes must occur in a manner that respects the Judiciary’s constitutional role.

Id. at *18. An appeal is pending in Russell. On October 10, 2025, the Fourth Circuit entered an “ORDER filed granting Motion to suspend briefing….”

Discussing Russell, retired Judge André Davis wrote that:

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? .… 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.

A. Davis, The safety of American judges is bipartisan (Baltimore Sun Jul. 6, 2025) (emphasis added).

Those are really good questions to ask the Members of Congress who are calling for impeachment: “What is going on here?”

To me, the answer is clear. Impeachment on this alleged basis is a misguided missile aimed at the core of the U.S. Constitution. When Members of Congress hold an “impeachathon,” there is something wrong. When sitting federal judges are listed as “wanted,” it goes beyond irresponsible. As I wrote in my first blog on this topic, I have been engaged in civil litigation since graduation in 1980. I have lost cases that I thought I should have won, and vice-versa. But, I always got a fair hearing. And, there were always appellate courts to review the decisions.

As the Hon. Paul W. Grimm (ret.) wrote, “we must immediately stand up and defend: judges who are doing their job to the best of their ability in quickly evolving situations, and the ability of the courts to fulfill their role to interpret and apply the law without fear or favor.” Letter from Paul W. Grimm Regarding Threats and Attacks on Judges (Feb. 10, 2025).

Chief Justice John Roberts has also weighed in on the matter, issuing a rare statement earlier this year in which he said that impeachment was “not an appropriate response” to disagreement concerning a judicial decision. Benjamin S. Weiss, Republican lawmakers resurrect impeachment of DC Fed Judge Boasberg | Courthouse News Service (Nov. 4, 2025).

For more information, please see: