Protecting the Judiciary – E-Discovery LLC https://www.ediscoveryllc.com Mediation of E-Discovery Disputes Sat, 10 Oct 2026 23:59:42 +0000 en-US hourly 1 Absolute Judicial Immunity Applies Even IF a Judge’s Decision Was “Wholly” Made by AI https://www.ediscoveryllc.com/absolute-judicial-immunity-applies-even-if-a-judges-decision-was-wholly-made-by-ai/ Tue, 18 Aug 2026 18:15:23 +0000 https://www.ediscoveryllc.com/?p=5422 […]]]> Plaintiff, T. Matthew Phillips sued the Hon. Mari D. Parlade, a State-court Judge, asserting that Judge Parlade had used A.I. to decide his case.  The federal court dismissed the case based on absolute judicial immunity.

In Phillips v. Parlade, 2026 WL 2364528 (D. Nev. Aug. 12, 2026), the Plaintiff argued that the Defendant State-court Judge was not protected by judicial immunity, alleging that “Defendant unlawfully delegated her official decision-making duties when she relied wholly on artificial intelligence to issue a judicial ruling, without any discretionary human thought, such that her actions cannot be considered a ‘judicial act.’”  The Plaintiff further alleged that “because Defendant delegated 100% of her decision-making duties, the rulings were in clear absence of all jurisdiction.”

The Phillips court explained the contours of judicial immunity.  It is absolute, “even if their action was in error, done maliciously, or in excess of their authority.”  Immunity applies unless the challenged conduct was done in the “clear absence of all jurisdiction” or where it “is not judicial in nature….”

The court added:  “Courts determine whether an act is judicial in nature by considering whether: (1) the act is a normal judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy centered around the case pending before the judge; and (4) the events at issue arose out of confrontation with the judge in his or her official capacity.”

Applying that test, the court wrote:

Here, Plaintiff alleges that Defendant issued a judicial decision in his state court case by relying wholly on artificial intelligence. Issuing a judicial ruling is clearly a normal judicial function and the controversy at issue centered around Plaintiff’s state court case pending before Defendant. Moreover, there are no allegations that the events occurred outside Defendant’s chambers. The challenged conduct is therefore judicial in nature. Furthermore, Plaintiff provides no case law or authority to support a finding that the challenged conduct was accompanied by a clear absence of all jurisdiction. Thus, Defendant is entitled to judicial immunity and this case must be dismissed.

The Complaint was dismissed with prejudice.

I would add that no fact in the decision supports any allegation that the State-court Judge relied “wholly,” or at all, on AI.

This blog was initially posted on  Electronic Discovery Reference Model.

]]> “Judges don’t have to recuse if sued by litigant, MD ethics committee rules” https://www.ediscoveryllc.com/judges-dont-have-to-recuse-if-sued-by-litigant-md-ethics-committee-rules/ Wed, 12 Aug 2026 14:24:46 +0000 https://www.ediscoveryllc.com/?p=5412 […]]]> Yesterday, I posted Don’t Sue the Judge.  There is an interesting spinoff. Ian Round reported on a Judicial Ethics opinion holding that Judges don’t have to recuse if sued by litigant, MD ethics committee rules – Maryland Daily Record (Aug. 11, 2026).

Mr. Round reports that the Judicial ethics opinion arose out of the lawsuit against the Judge: “The facts in the ethics committee’s opinion closely mirror the case of Nathan Charles, an immigration attorney in Baltimore who represented himself in contentious divorce and custody proceedings….  Charles has sued judges of the Montgomery County Circuit Court, alleging his rights to free speech and due process were violated because he criticized the court and all of its judges. Both lawsuits were filed in U.S. District Court. Charles represented himself in the family law proceedings and the lawsuits against the judges.”  Id.

The Judicial Ethics Committee “concludes on the facts given that the Requester [a circuit court Judge] likely is not required to recuse for any objective reason. Recusal is required only if the Requester subjectively determines that the Requester is not able to remain fair and impartial.”  The latter was determined to not be the case here.

Maryland Judicial Ethics Opinion 2026-22 (Aug. 10, 2026), begins by framing the issue:

Issue: Must a judge recuse from a matter in which a litigant has sued the judge in other jurisdictions and has disclosed filing a disciplinary complaint against the judge?

Answer: No, unless the judge determines subjectively that the judge is unable to remain fair and impartial in the matter.

The self-represented litigant had sued the Judge and also filed a Complaint with the Maryland Commission on Judicial Disabilities.  The Opinion recites that the self-represented litigant “has now moved to disqualify the Requester [a circuit court judge] and every other active judge and magistrate in the Requester’s jurisdiction,” describing them as future defendants. (As noted in my prior post, leave to amend the Complaint was denied in federal court and it was dismissed.)

The Judicial Ethics Committee reviewed: Maryland Code of Judicial Conduct Rules 18-101 and 18-202; its standards of recusal decision, Opinion 2025-32 (Nov. 7, 2025); and, Art. IV of the Maryland Constitution, which applied here.

The Committee wrote that recusal has subjective and objective aspects. Subjectively, “[i]f the judge is not confident in the judge’s own subjective impartiality, then recusal is required on that basis alone.”  Objectively, the Judge must decide if there is a reasonable perception of impropriety.  The Committee added:

Disqualification in appropriate circumstances serves the goal of the judicial process not only being fair, but appearing to be fair….  At the same time, judges have a duty to preside when qualified that is as strong as their duty to refrain from presiding when not qualified. [cleaned up].

The Committee did not opine on the subjective prong. On the objective prong, it concluded that “there is not likely to be an objective reason to question the Requester’s impartiality based solely on the fact that the litigant has brought or may bring other claims against the Requester.  Here, the Requester’s knowledge of the litigant is based entirely on prior judicial proceedings.  Information derived entirely from judicial proceedings is not considered ‘personal.’”

The Committee wrote that a person with knowledge of all the facts “likely would understand that the litigant’s complaints are not a reasonable reaction to any action by the Requester, but a manifestation of dissatisfaction with decisions that have been adverse to the litigant.  The facts presented suggest strongly that the litigant is using the other complaints tactically, to try to remove the Requester and other judges and magistrates from the matter.  Judges have a responsibility to resist such tactics if they are able to maintain the necessary subjective impartiality.” [emphasis added].

Further, it wrote that “the litigant’s disclosure of the litigant’s complaints to the Maryland Commission on Judicial Disabilities likely was improper.”

In an interesting footnote, the Committee suggested that the self-represented litigant may have overplayed his hand:

The duty to recuse also is qualified by the rule of necessity.  “[B]oth the constitutional and statutory provisions governing recusal must yield where recusal ‘would destroy the only tribunal in which relief . . . may be sought.’  Gordy v. Dennis, 176 Md. 106, 109 (1939).”  Opinion 2025-32 (Nov. 7, 2025) at 5.  If there were any merit to the litigant’s claims here, the rule of necessity could be implicated because the litigant seeks recusal of every judicial officer in the jurisdiction.

For posts on protecting the Judiciary, see

]]> Commentary: “Ex-Judges See ‘Grave Threat in Trump Official’s ‘War’ Talk” And “Senate Committee to Investigate Impeachment of Judges” https://www.ediscoveryllc.com/commentary-ex-judges-see-grave-threat-in-trump-officials-war-talk-and-senate-committee-to-investigate-impeachment-of-judges/ Mon, 17 Nov 2025 04:36:16 +0000 https://www.ediscoveryllc.com/?p=4729 […]]]> 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:

See also:

]]> “DOJ’s No. 2 Official Asks Lawyers to Join ‘War’ Against Judges“ https://www.ediscoveryllc.com/dojs-no-2-official-asks-lawyers-to-join-war-against-judges/ Fri, 07 Nov 2025 22:57:51 +0000 https://www.ediscoveryllc.com/?p=4717 […]]]> Suzanne Monyak reported that DOJ’s No. 2 Official Asks Lawyers to Join ‘War’ Against Judges (Nov. 7, 2025).

The article states that:

Todd Blanche, second-in-command at the Justice Department, described a “war” against the federal judiciary and called on young conservative lawyers in the audience to join the fight against so-called “activist judges.”

“It’s a war, man,” Blanche, the deputy attorney general, told judges and lawyers Friday at a Federalist Society event in Washington, before describing instances where the government has ping-ponged between lower and appellate courts. “It’s happening over and over and over again.”

Id.

Blanche reportedly said:

“It’s hard to get the media, it’s hard to get the American people to focus on what a travesty it is when you have an individual judge be able to stop an entire operation or an entire administrative policy that’s constitutional and allowed just because he or she chooses to do so. So, it’s a war.”

Criticizing activist bar associations, Blanch reportedly said: “We’re going to do everything we can to take these activist bars, and DC is right at the top—is at the top—out of the picture….”

If the article accurately describes the comments, to say that having DOJ declare that it will take the DC Bar (of which I am a member) “out of the picture,” after declaring “war” on Judges is beyond disturbing.

There still is a First Amendment to the U.S. Constitution.  And Judges are operating under Art. III of that Constitution. It’s called “separation of powers.”

I have written a number of blogs on the need for all of us to protect the judiciary. Intemperate language leads directly to things like “Pizzas Sent to Judges’ Homes in Name of Judge’s Murdered Son” (Apr. 17, 2025).

The United States unsuccessfully sued every federal judge in the District of Maryland. Lawsuit Against Federal Judges Dismissed – “[T]hese are not normal times.” (Aug. 26, 2025).

See generally:

See also:

UPDATED: Nov. 10, 2025

]]> Today is “Constitution and Citizenship Day” https://www.ediscoveryllc.com/today-is-constitution-and-citizenship-day/ Wed, 17 Sep 2025 14:54:15 +0000 https://www.ediscoveryllc.com/?p=4621 […]]]> Today is Constitution Day – September 17, 2025 | U.S. Constitution.  Constitution Day commemorates the formation and signing of the U.S. Constitution by thirty-nine brave people on September 17, 1787.  Id.  By federal statute, 36 U.S.C. §106, “September 17 is designated Constitution Day and Citizenship Day.” 

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Under 36 U.S.C. §106, “Constitution Day and Citizenship Day commemorate the formation and signing on September 17, 1787, of the Constitution and recognize all who, by coming of age or by naturalization, have become citizens.”

The statute provides that: “The President may issue each year a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings on Constitution Day and Citizenship Day and inviting the people of the United States to observe Constitution Day and Citizenship Day, in schools and churches, or other suitable places, with appropriate ceremonies.”

Further: “The civil and educational authorities of States, counties, cities, and towns are urged to make plans for the proper observance of Constitution Day and Citizenship Day and for the complete instruction of citizens in their responsibilities and opportunities as citizens of the United States and of the State and locality in which they reside.”

]]> Lawsuit Against Federal Judges Dismissed – “[T]hese are not normal times.” https://www.ediscoveryllc.com/lawsuit-against-federal-judges-dismissed-these-are-not-normal-times/ Tue, 26 Aug 2025 19:52:21 +0000 https://www.ediscoveryllc.com/?p=4546 […]]]> In USA v. Chief Judge George L. Russell III, in his official capacity, et al., No. 1:25-cv-02029 (D. Md. Aug. 26, 2025), the Hon. Thomas T. Cullen dismissed all claims against the Maryland Federal Bench and Court.

Much could be written; however, I suggest that the decision “speaks for itself.” Excerpts follow:

“Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.” [emphasis added].

“To start, this is ‘an extraordinarily unusual lawsuit.’ United States v. Texas, 599 U.S. 670,686 (2023). So before explaining the specific reasons for dismissal, the court takes a moment to ground itself in two simple, but fundamental, constitutional precepts that guide much of its analysis. First, the executive branch is not the sole sovereign in the United States of America. Second, the federal judiciary does not have plenary power, unmoored from a justiciable case or controversy or cause of action, to review any allegation of constitutional misconduct. As the Supreme Court has explained, the ‘Framers of the Constitution sought to provide a comprehensive system’ that made the United States of America—not a single branch—the sovereign, by ‘dividing and allocating the sovereign power among three co-equal branches.’ United States v. Nixon, 418 U.S. 683, 707 (1974). The coordinate branches together form the government of the United States of America, and together they are the sovereign in this Nation.”

“Regrettably, this lawsuit effectively pits two of those branches against one another. But it is important to remember that, at bottom, all branches—and the public officials who serve in them—share the same core sovereign interest: To support and defend the Constitution. See U.S. Const. art. II, § 1, cl. 8 (President’s Oath); U.S. Const. art. VI, § 1, cl. 3 (Legislative and Judicial Officers’ Oath).”

“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.”

“The United States District Court for the District of Maryland, as an entity of the sovereign United States, is immune from suit and the Executive’s claims against it must be dismissed.”

“As pleaded, the defendant judges are entitled to judicial immunity. That necessarily means the defendant Clerk of Court, whose only alleged sin is implementing the standing orders, is protected under the same doctrine.”

“Defendants also move to dismiss the Executive’s lawsuit because it does not identify a cause of action that allows it in the first place. The court again agrees. Dismissal of the Executive’s suit is appropriate because it has not pointed to a cause of action that permits the court to entertain a lawsuit between two coordinate branches of government, and this court will not be the first to create one.”

“[P]ermitting federal injunctive or declaratory relief against a federal judge opens a can of worms that otherwise remains sealed….  Allowing injunctive relief against federal judges would be to permit a ‘horizontal appeal’ from one district court to another or even ‘reverse review’ of a ruling of the court of appeals by a district court.”  [cleaned up; citations, quotations, etc., removed].

“The Executive contends that the recent standing orders constitute a direct assault on its plenary authority to police immigration matters and enforce the nation’s immigration laws.”

“If these arguments were made in the proper forum, they might well get some traction. And under normal circumstances, it would not be surprising if the Executive raised these concerns through the channels Congress prescribed…”

“But as events over the past several months have revealed, these are not normal times—at least regarding the interplay between the Executive and this coordinate branch of government. It’s no surprise that the Executive chose a different, and more confrontational, path entirely. Instead of appealing any one of the affected habeas cases or filing a rules challenge with the Judicial Council, the Executive decided to sue—and in a big way.” [emphasis added].

“On June 24, the Executive filed a complaint in the District of Maryland naming Chief Judge Russell as the lead defendant, but adding, ostensibly for good measure, every other active and senior (i.e., semi-retired) judge in the district (15 in total), the Clerk of Court, and the court itself (collectively, ‘Defendants’). In casting its wide net, the Executive ensnared an entire judicial body—a vital part of this coordinate branch of government—and its principal officers in novel and potentially calamitous litigation.”

“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.”

“The mere filing of this suit required the recusal of the entire federal bench in the District of Maryland and the assignment of this out-of-district judge who, by this designation, is theoretically empowered to enjoin his fellow district judges and, by extension, hold them in contempt for violating the court’s orders. If the case were to survive a motion to dismiss, the parties—the individual judicial defendants and principal officers of the Executive, including the Secretary of Homeland Security and the United States Attorney General—would potentially be required to sit for depositions and produce documents, including emails and other internal communications, relevant to the issuance of the standing orders and the actual reasons for filing suit. These discovery demands, in turn, would almost certainly trigger claims of privilege—executive, judicial, deliberative-process, and the like—and invariably compound this constitutional standoff into epic proportions.” [emphasis added].

“The court finds that (A) the Executive lacks standing to bring its claim for injunctive relief, but even disregarding that critical flaw, its entire complaint is subject to dismissal because (B) Defendants are immune from suit and, (C) alternatively, the Executive fails to identify a legitimate cause of action that allows it to bring this lawsuit.”

For background, please see Motion to Dismiss Filed by Judges of the U.S. District Court for the District of Maryland – E-Discovery LLC (Jul. 22, 2025).

See generally:

See also:

 

]]> “Baltimore sheriff raises alarm on court security underfunding” https://www.ediscoveryllc.com/baltimore-sheriff-raises-alarm-on-court-security-underfunding/ Sat, 02 Aug 2025 20:12:56 +0000 https://www.ediscoveryllc.com/?p=4455 […]]]> Baltimore City Sheriff Sam Cogan wrote a commentary in the Baltimore Sun, Baltimore sheriff raises alarm on court security underfunding (Aug. 1, 2025).

In Baltimore, courthouse security is provided by the sheriff’s office.  It is worth listening to the voice of the person charged with protecting the courthouse.  The commentary begins:

Last week, in front of a judge and jury during a murder trial in the Baltimore City Circuit Court, three individuals attempted to attack the defendant. While they were quickly subdued and arrested, this is not the only such incident of courthouse violence we have experienced recently in Maryland. Just this past May, the defendant in a murder case in Howard County was similarly attacked in one of their Circuit courtrooms.

The Sheriff wrote:

As sheriff of Baltimore City, I am compelled to raise the alarm on court security funding inadequacies. Following the murder of Judge Andrew Wilkinson in Washington County, a task force was legislatively created to study the issue of the safety of judicial facilities throughout Maryland. As a member of that task force, I learned that staffing for court security officers is significantly underfunded by local governments, not only in Baltimore but all around the state.

He states that 49 years ago, there were three court security personnel for each Judge. Today, he wrote, the ratio has fallen to 0.8.

The Sheriff also wrote:

Fortunately, we have another opportunity to focus on this issue in the coming weeks. When Governor Moore signed Senate Bill 621 this past April, it mandated that sheriffs around the state identify the safety and staffing needs of the various courthouse buildings, as well as any impediments to our ability to achieve adequate security standards. We will submit our findings to the Chief Judge of the Maryland Supreme Court by Sept. 30. It should come as no surprise to anyone if the data identifies underfunding from local governments as the prevailing impediment to courthouse security.

Sheriff Cogan suggests that a state-wide solution will avoid a “battle for resources in an adversarial budget process with their local governments.“

Will Rogers wrote  Respect umpires — on the field and in the courtroom (Aug. 2, 2025).  He had been an umpire in youth baseball and called balls and strikes.  “Were they always right? No. I bungled my share…. No one likes it, but that’s the sport.”  He then asked what people like even less than bungled calls and he answered: “When parents or coaches scream at the umpire to overturn a call.”  He asks the reader to imagine what would happen if a coach who did not like a call told the batter to ignore the umpire and walk to first base.  He answers: “[T]he game would fall apart.” He adds: “Respecting the umpire even when you think they’re wrong is a better choice and offers a lesson that could help our politics today.”  Mr. Rogers concludes:

Let’s treat the judiciary with the same respect owed to youth baseball umpires. It’s okay to disagree with a court’s ruling. But if we want the system to work — the whole system — keep it civil. Follow the ruling, file an appeal and let the judicial process play out. Because whether on the diamond or in the nation’s courtrooms, when everyone plays by the rules, the game remains fair for all. That’s the only way to ensure that we can protect the game — and our constitutional democracy.

For a few examples of recent Maryland actions, see:

For additional context, please see:

 

See also:

]]> “For Baltimore high school students, this arts competition offers more than scholarships” https://www.ediscoveryllc.com/for-baltimore-high-school-students-this-arts-competition-offers-more-than-scholarships/ Sun, 27 Jul 2025 10:00:39 +0000 https://www.ediscoveryllc.com/?p=4437 […]]]> Generally –  not always – this blog focuses on e-discovery.  Today, however, this is a shout out to two programs run by the District Court of Maryland, a State trial court.  One common denominator is the Hon. Halee F. Weinstein.

THE COURT ART PROGRAM

Wesley Case, wrote Arts competition more than scholarships for Baltimore students – The Baltimore Banner (Jul. 22, 2025).  The article states:

The Eastside District Court Building on North Avenue looks like any other municipal building on first glance: worn wooden benches, speckled floor tile and taped-up signage that reads, “Please wait to be called.”

But a closer scan of the Baltimore courthouse reveals unexpected bursts of color amid finely detailed drawings and paintings. The works — ranging from realistic portraits to stylized still lifes — add vibrancy and liveliness to the eggshell-colored walls.

Remarkably, they were all made by Baltimore City Public School students, many of whom gathered at the courthouse on a recent overcast evening for an emotional awards reception. Now in its ninth year, Courting Art Baltimore gives scholarships to high school students while providing a public platform for their impressive artistic abilities.

The “Court Art” program awarded $20,500 in scholarships to seven winners this year.  More than 130 art works are displayed in the courthouse.  Id.

And, the Banner notes:

Retired judge Halee Weinstein started the competition in Baltimore after first encountering it in Montgomery County, Pennsylvania. Her goal was to “change the narrative” around city students.

The Baltimore Banner article explains: “This story is published as part of the Baltimore News Collaborative, a project exploring the challenges and successes experienced by young people in Baltimore. The collaborative is supported by the Annie E. Casey Foundation. News members of the collaborative retain full editorial control.”

To donate to the program, Donate Now | Arts Every Day.

That is not all that Judge Weinstein has done.

THE VETERANS TREATMENT COURT

Maryland has established a “Veterans Treatment Court.”

Veterans’ courts provide services to those who served in the military and suffer from conditions such as posttraumatic stress disorder, traumatic brain injuries, other mental health issues, and/or substance use disorders. Veterans can resolve outstanding criminal offenses, obtain the treatment and services they need, and stabilize their lives. A veteran’s court connects eligible participants to U.S. Department of Veterans Affairs (VA) benefits, long-term supportive housing, and other benefits for participants whose service-related disabilities prevent their return to the workforce. The veterans court can also access local resources where the veteran does not qualify for VA benefits.

Id.  As of last year, the court has expanded from Baltimore City to address central regional counties.  New Central Maryland Regional Veterans Treatment Court launches to expand services to veterans | Maryland Courts (Nov. 12, 2024).  The court’s website states:

The District Court in Baltimore City celebrated six veterans who recently completed the program, which was founded in 2015 and is presided by U.S. Army Veteran and Senior District Court Judge Halee F. Weinstein….

“Judge Weinstein and her team have done a tremendous job over the years, and I commend them for their efforts to bring the Central Maryland Regional Veterans Treatment Court to fruition to increase access to justice for military veterans,” said Chief Judge John P. Morrissey, District Court of Maryland.

The court explains:

Eligible veterans who have court cases will be referred to the program by the District Court in each county. The criteria for eligible participants include being a U.S. military veteran regardless of eligibility for VA benefits and being a defendant charged with misdemeanor offenses or concurrent jurisdiction felonies in the District Court.

In addition to the Maryland Judiciary’s Office of Problem-Solving Courts, VTC project partners include the United Way of Central Maryland; the United States Department of Veterans Affairs; Warrior Canine Connection; the State’s Attorney’s Offices for Baltimore City and Baltimore, Carroll, Harford, and Howard counties; the District Offices of the Public Defender in Baltimore City and Baltimore, Carroll, Harford, and Howard counties; the Maryland Department of Parole and Probation; the University of Baltimore School of Law; and several other federal, state, and local service providers.

“It has been a great privilege to serve our veterans through the Veterans Treatment Court program,” said Franklyn Baker, President and CEO, United Way of Central Maryland. “United Way of Central Maryland is committed to help in the fight for those who have fought for our country with the launch of a regional program modeled after the successful Baltimore City program. The Central Maryland Regional Veterans Treatment Court will provide physical and mental health services, employment, financial counseling, and more to help veterans navigating the District Court system in Baltimore City, Baltimore County, Carroll County, Harford County, and Howard County. This program supports veterans with a goal of returning productive, law-abiding citizens to the community and reducing recidivism and criminal justice costs.”

I have seen the Veterans Treatment Court in action.  It is impressive.

As one of Maryland’s “problem solving courts,” its goal is rehabilitative.  As an Army veteran, I have to say “thanks” to Judge Weinstein and the Maryland courts.

]]> Motion to Dismiss Filed by Judges of the U.S. District Court for the District of Maryland https://www.ediscoveryllc.com/motion-to-dismiss-filed-by-judges-of-the-u-s-district-court-for-the-district-of-maryland/ Tue, 22 Jul 2025 23:05:47 +0000 https://www.ediscoveryllc.com/?p=4423 […]]]> The Judges and Clerk of the United States District Court for the District of Maryland filed a “Motion to Dismiss & Opposing Plaintiffs’ Motion for Preliminary Injunction” in USA v. Russell, et al., No. 1:25-cv-2029 (D. Md. Jul. 21, 2025).

This is a lawsuit against all of the Judges of the District of Maryland, the Court itself, and the Clerk of the Court, arising out of a standing order of the Court that briefly stays certain habeas corpus petitions.  Plaintiffs are the United States and the Department of Homeland Security.

Defendants’ memorandum states: “Under our system of government, the Executive does not just haul off and sue the Judiciary. Instead, the Executive takes care that the laws are faithfully executed.”

In a different context, it has been said that: “The need for soundness in the result outweighs the need for speed in reaching it.”  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 937, 938 (1952)(Burton, J., dissenting, and Frankfurter, J., concurring).

The District of Maryland’s Standing Order 2025-01, as amended, permits entry of a stay that lasts only “until 4:00 p.m. on the second business day after” an alien files a habeas corpus petition.  It recites that it is designed to preserve the “existing conditions and potential jurisdiction” of the Court, in order to permit the Court to determine the scope of its authority. It bars the Executive “from removing… or altering” the legal status of alien detainees who file a habeas corpus petition for that specific, brief period of time.  It states that the Standing Order will: preserve the petitioner’s right to participate in court proceedings and obtain legal counsel; give the Court time to evaluate the claims; and, “ensure the Government has a fulsome opportunity to brief and present arguments in its defense.”  In my words, it provides due process.

The Introduction to the defendants’ memorandum states in part:

This unprecedented lawsuit is fundamentally incompatible with the separation of powers… If allowed to proceed, the tensions between the branches produced by such a suit would only escalate, with executive depositions of judicial officers (and vice-versa) and cross-examinations exploring judicial motivations and executive necessities in open court.  And if this suit succeeds, it will not be the last – and the next suit could name the [United States Court of Appeals for the] Fourth Circuit[1] and cause greater disruption still.  But this suit is unprecedented for good reason: It is neither justiciable nor meritorious.

Perhaps a bit tongue-in-cheek, the memorandum states: “A suit denominated Executive v. Congress or vice-versa would be plainly nonjusticiable; Executive v. Judiciary fares no better.”

The memorandum accepts the “truism” that judges sometimes violate the law.  It proceeds with the undoubtedly correct assertion that is “why we allow both appeals and challenges to judicial rules in individual cases….”  It suggests that the proper way to challenge the Standing Order is to raise the argument in an individual case.

It adds:

But it is equally true that immigration officers sometimes violate the law.  And when they do, the consequences can be stark – and potentially irreversible by the Executive’s own admission [in Abrego Garcia v. Noem].

Thus: “It is little surprise, then, that numerous courts around the county, including the Fourth Circuit, enter automatic temporary stays as a matter of course for a short period when an alien seeks emergency relief from an impending removal.”  These orders protect the need for a chance for “meaningful relief” before a court “can make even a preliminary assessment….”

The Judges’ memorandum argues in part that the Standing Order reflects a “commonsense” balancing of the consequences of removing someone incorrectly v. a brief stay to ensure a preliminary “look before it is too late to do so.”

Quoting the Fifth Circuit, the Judges suggest that a federal court “is… not a Denny’s” and “judges need some modicum of time and adverse presentation to properly assess their jurisdiction and make an informed decision, while also giving aliens a reasonable opportunity to request emergency relief.”

And as precedent, it points to “default temporary stays in immigration cases seeking emergency relief… in at least five circuits, including this one.” The memorandum states that this stay of approximately two days is much less than the Fourth Circuit’s stay of 14-days that has been in effect for years, without objection, citing Standing Ord. 19-01 (4th Cir. Oct. 21, 2019).

The memorandum states that the Maryland Standing Order is a “modest effort to preserve the Judiciary’s ability to perform its constitutionally assigned role….” [Emphasis in original].

It points out that there is no “waiver of the district court’s sovereign immunity or abrogation of judicia immunity….”  And, it also suggests that the Complaint does not identify any waiver of sovereign or absolute judicial immunity, and asserts that there is none in circumstances such as this.

The Judicial Defendants’ memorandum suggests that:

This Court should make clear that this lawsuit has no proper place in our constitutional separation of powers, and that the standing order does no more-or less- than preserve the Judiciary’s essential ability to ensure that justice is done to all who seek relief from the courts.

It is argued that “immigration litigation has shifted to district courts” and that increased caseload created “the need for modest measures to assist them in addressing time-sensitive petitions for review,” especially given the administration’s efforts to execute removals “on an extraordinarily expeditious basis….”

The memo states that the Executive identified 12 cases in which it claims that a stay was entered.

It explains that: “In some, the stay lapsed by its own terms after a prompt status conference….” In one, it lapsed due to voluntary dismissal by the alien.  In another, the Court extended the stay, without objection by the Government.  And, the memorandum states that the order was not even entered in one of those cases.

It is also asserted that, in the stayed cases, the “judges have given them the utmost priority and advanced them with alacrity,” citing examples.  In one, the habeas petition was filed on Friday, the Executive moved to dismiss on Monday, the Court held a telephone conference on Tuesday, entered an expedited briefing schedule totaling 10 days, held a hearing the next day, and granted the government’s motion to dismiss two days later.

On the one hand, the Standing Order gives the Judges 48 hours to evaluate a petition. On the other, the executive asserts it “robs the Executive Branch of … time to put its policies in effect,” according to the memo. The Judges, however, respond that standing orders are “routine exercises” of the Judiciary’s common-law inherent power.

It is alleged that the Complaint asserting claims of (1) violation of the requirements for an injunction, (2) violation of alleged jurisdictional bars, and, (3) violation of requirements for Local Rules, “identifies no law creating a cause of action that allows anyone (the United States or otherwise) to file a suit naming the entire judicial district” for this relief. It is argued:

[This lawsuit] is an effort by one branch in its institutional capacity to sue another branch in its institutional capacity seeking what amounts to an advisory opinion unmoored from any specific case or controversy…. [The Executive] does not enjoy any free-floating authority to sue a coordinate branch of government.

It is asserted that: “The Executive’s paramount interest is the same as the Judiciary’s: that justice shall be done.”  The Judges argue that this Standing Order is a “modest effort to serve that end” and it fits “comfortably within a long tradition of comparable orders.”

It is also asserted that 42 U.S.C. §2071(c)(1) authorizes the Executive to petition to have standing orders “modified or abrogated” by the Judicial Council if they qualify as Local Rules.[2]  Further, 28 U.S.C. §2071(e) authorizes emergency local rules.

However, quoting the Seventh Circuit, the memorandum argues that there is no “Writ of Erasure” to “blot the standing order[s] from the books.”

Finally, the memorandum addresses the United States’ argument that the standing orders “diminish the votes of the citizens who elected” the current President.  It replies:

That is a proposition without limits, and with very serious consequences for the rule of law and the separation powers. In reality, it is the enduring text of the Constitution, not the preference of voters at a moment in time, that establishes the powers of the three branches of the federal government.  That text gives the Judiciary a critical role in ensuring that the Executive acts within the bounds of the statutes duly enacted by Congress.  And the judicial function depends on the ability to preserve the status quo for the brief interval necessary to address those issues in a considered fashion.

There is much more in the Judges’ memorandum than this blog can summarize.  It addresses, for example, the irreparable injury argument, the adequate remedy at law, the balance of equities, and many others.

In an entirely different context, Justice Jackson recognized Justice Holmes’ statement that people must “turn square corners” in dealing with the government.

However, Justice Jackson added that: “It is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street.”  Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 387 (1947)(Jackson, J., and Douglas, J., dissenting).

For some additional context, please see:

See also:

_____

[1] The memorandum suggests: “And if the Executive can sue an entire district court, there is no reason in principle that the Executive could not sue a court of appeals.”  This might raise the prospect of a single district judge sitting in judgment of an entire appellate court. Id.

[2] In the memorandum, it is acknowledged that there are limits on a district court’s power to enter administrative stays.  The test would be whether the stay was irregular or flagrantly improper.

]]> Another Judicial Impeachment Effort?  What Would Justice Rehnquist Say? https://www.ediscoveryllc.com/another-judicial-impeachment-effort-what-would-justice-rehnquist-say/ Wed, 09 Jul 2025 22:58:09 +0000 https://www.ediscoveryllc.com/?p=4384 […]]]> 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. 4th __, 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.”

See also:

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. 4th __, 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 20th and the docket states that supplemental briefing was ordered.  On June 23rd, the Governor filed a supplemental brief regarding jurisdiction and requesting expedited discovery.  The U.S. also filed a supplemental brief.

On June 25th, Judge Breyer entered an order regarding discovery as to plaintiffs’ motion for preliminary injunction. On July 3rd, 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).

____

[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.”).

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