Protecting the Judiciary – Again

Protecting the Judiciary Against This Ill-Advised “Impeachathon”

February 27, 2025

“Self Help” Discovery Results in Striking of Wrongfully Obtained Evidence

March 3, 2025

Published by Michael Berman at February 28, 2025

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Rep. Andy Ogles has filed a resolution seeking to impeach Judge Amir Ali “a day after U.S. Supreme Court Chief Justice John Roberts paused the judge’s order requiring the Republican president’s administration to pay foreign aid funds to contractors and grant recipients.” N. Raymond, Republican lawmaker seeks US judge’s impeachment over foreign aid ruling | Reuters (Feb. 27, 2025). The stay was issued on an ex parte application that has now been briefed.

The Reuters article reports that this is the third filing of articles of impeachment; however, at a recent “impeachathon” by three members of Congress, Rep. Ogles “displayed a poster of 11 judges they were focused on….”

I have published several blogs on the impeachathon and impeachment efforts:

In each blog, I suggested that we look at the facts. As in the prior blogs, this is not about the merits 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. Those and other blogs may be accessed by using the “Category” in the upper right and clicking on “Protecting the Judiciary.”

I can’t find the article of impeachment on Rep. Ogle’s web page – Representative Ogles |(Feb. 28, 2025).

However, it is posted at Text of H.Res. 174: Impeaching Amir Hatem Mahdy Ali, a judge of the United States District Court for … (Introduced version) – GovTrack.us.

It has been referred to the Judiciary Committee. Actions – H.Res.174 – 119th Congress (2025-2026): Impeaching Amir Hatem Mahdy Ali, a judge of the United States District Court for the District of Columbia, for high crimes and misdemeanors. | Congress.gov | Library of Congress

It is alleged that:

In issuing a temporary restraining order against the pausing of funds promulgated in Executive Order 14169, Judge Ali has without merit marginalized the President’s Article II authority, which vests the power to conduct foreign policy in the President of the United States, and has further compromised the President’s fiduciary obligation to review federal agencies and programs. This patent violation of Constitutional precedent—which necessarily precludes an explanation based on ignorance of the supreme law of the land—is entirely inconsistent with serving the United States as a district court judge.

It is alleged that Judge Ali acted “in manner that is arbitrary and capricious.” It is alleged that U.S. AID money provided financial support for terrorism. It concludes:

While arguing that the Trump administration funding pause caused irreparable harm, Judge Ali failed to consider that his decision could easily inflict irreparable harm on Americans and American interests.

Accordingly, Judge Amir Hatem Mahdy Ali has engaged in conduct so utterly lacking in intellectual honesty and basic integrity that he is guilty of high crimes and misdemeanors, is unfit to hold the office of Federal judge, and should be removed from office.

In each of the prior impeachment efforts, I have written 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.

Judge Ali’s decision is AIDS Vaccine Advoc. Coal. v. United States Dep’t of State, No. CV 25-00400, __ F. Supp. 3d __, 2025 WL 485324 (D.D.C. Feb. 13, 2025), enforced, No. CV 25-00400, 2025 WL 569381 (D.D.C. Feb. 20, 2025), clarification denied, No. CV 25-00400, 2025 WL 577516 (D.D.C. Feb. 22, 2025), motion for stay denied, appeal dismissed, No. 25406, 2025 WL 621396 (D.C. Cir. Feb. 26, 2025)(per curiam), stay issued, __ U.S. __, No. 24A831, 2025 WL 618071, at *1 (U.S. Feb. 26, 2025)(Roberts, C.J.).

In short, Judge Ali issued a temporary restraining order. The D.C. Circuit held that no appeal had been filed and that TRO’s are generally not appealable. The government argued that enforcement orders are appealable. The D.C. Circuit held that the government had not met its burden of proving that exception and dismissed the appeal as moot. Chief Justice Roberts then issued an ex parte stay and ordered a response to the application for stay. That response was filed today.

THE TRO DECISION

Judge Ali’s February 13^th opinion granted in part, and denied in part, a motion for temporary restraining order. 2025 WL 485324. Two lawsuits were filed. The plaintiffs “are (or represent) small and large businesses, nonprofits, and other organizations across the United States,” and “are health and journalistic nonprofits that receive federal grant money to perform foreign assistance work.” Id. at *1.

They brought suit under the federal Administrative Procedure Act and the federal Constitution, challenging an Executive Order that “immediately stopped all congressionally appropriated foreign assistance funding pending future review.”

The legal challenges were under the federal Administrative Procedures Act, the federal Constitutional separate of powers doctrine, and other theories. The APA permits judicial review of final agency actions. Those types of cases are routinely resolved in federal courts by federal judges.

The Judge described the evidence presented to His Honor:

Among other things, Plaintiffs have provided evidence that they have been and will continue to be forced to shut down program offices, to furlough or terminate staff, and in some cases to shutter their businesses entirely…. They have also provided supporting evidence that Defendants’ actions have had and will continue to have a catastrophic effect on the humanitarian missions of several plaintiffs.

The written decision stated: “The Court held a prompt hearing, at which the Government rightly highlighted the importance of respecting the President’s Article II power, while also recognizing that the harms Plaintiffs described may well be irreparable.”

Judge Ali listed a number of examples of irreparable harm to plaintiffs. I will list only four of them:

“A nonprofit plaintiff focused on protecting refugees and asylum seekers has had to lay off 535 staff members since receiving termination notices for multiple grants…. It has been forced to shutter program offices and defer payments to vendors.”
“Another plaintiff representing small businesses across all sectors attests that the suspension included USAID failing to pay its member organizations for months of unpaid invoices…. This has forced small businesses to furlough ‘most U.S. national staff in home offices and on contracts, and terminate foreign national staff or risk keeping them and being uncertain of payments under stop work orders.’”
“Another plaintiff focused on addressing the global HIV/AIDS epidemic has already been forced to lay off seven employees and will lay off ten more over the next month if the suspension of appropriated foreign aid continues.”
“One plaintiff asserts that the suspension of appropriated foreign aid has disrupted critical health programs, including maternal and child health programs and infectious disease prevention efforts administered by its member organizations.”

That is the type of analysis that is routinely performed by federal judges on TRO motions. That is undisputed: “At the Court’s hearing, Defendants acknowledged that the types of harms above affecting Plaintiffs’ businesses, as well as the availability of food and medicine, are types of harm that are appropriately considered in the irreparable harm inquiry.”

The court wrote that:

However, at least to date, Defendants have not offered any explanation for why a blanket suspension of all congressionally appropriated foreign aid, which set off a shockwave and upended reliance interests for thousands of agreements with businesses, nonprofits, and organizations around the country, was a rational precursor to reviewing programs.

The court decided that, under the APA, this was agency action that was reviewable.

Judge Ali wrote: “At least at this early stage,” the court then granted a TRO that was narrower than what plaintiffs requested. Id. at *3 (Emphasis added). His Honor wrote that there was a “sufficient preliminary showing” that the loss of funding threatened the existence of their business. The Judge repeatedly emphasized that his ruling was only “at least at this stage….”

As to the President’s Article II power:

Defendants have repeatedly, and rightly, emphasized the importance of respecting the President’s Article II power as it relates to foreign policy. Plaintiffs, for their part, have emphasized the Constitution’s separation of powers, which also demands respect for Congress’s Article I role in legislating, including Congress’s choice to allow judicial review through the APA and other statutes constraining the Executive Branch, as well as Congress’s important role in appropriating funds. Ultimately, Plaintiffs have adduced, and Defendants have not (yet) meaningfully contested, detailed and credible evidence of harm to countless American businesses, ranging from shutting down programs, to furloughing and laying off employees, to shuttering altogether. Plaintiffs also detailed the existential consequence to their missions, which may endanger the health and safety of children and other vulnerable populations. At the Court’s hearing, Defendants did not dispute the likelihood of those consequences…. And on the other side, Defendants did not argue or adduce evidence that any concrete, real-world harm will take place in the event temporary relief is granted. [Emphasis added].

What Judge Ali did was:

Consider a motion by plaintiffs for emergency relief;
Explain that the challenge required application of federal law by a federal judge in a federal court;
Consider the evidence and hear from both sides, including consideration of the government’s Constitutional defense; and,
Grant in part, and deny in part, the request for emergency relief.

One may agree or disagree with Judge Ali’s analysis; however, that is not impeachable.

THE SECOND DECISION

In the second decision, __ F. Supp. 3d __, 2025 WL 56931 (Feb. 20, 2025), Judge Ali agreed with defendants’ requested clarification, denied plaintiffs’ request for contempt, explained that His Honor was open to further arguments, set in a schedule agreed by the parties, and enforced the prior order.

Defendants “asked the Court to confirm their understanding that the TRO does not restrain Defendants’ ‘exercise of authorities under statutes, regulations, and other legal authorities.’” Judge Ali wrote:

As discussed below, the TRO is clear, and Defendants are correct that it does not restrain the agencies’ exercise of authorities under law. At the same time, of course, the TRO does not permit Defendants to simply search for and invoke new legal authorities as a post-hoc rationalization for the enjoined agency action.

On the other hand, plaintiffs moved for contempt. Judge Ali wrote: “Plaintiffs’ motion is granted in part, insofar as Defendants have continued their blanket suspension of funds pending review of agreements, the very action that the TRO enjoined pending the parties’ requested briefing schedule and the Court’s prompt resolution of whether to issue a preliminary injunction. But the Court finds that contempt is not warranted on the current record….”

The court added: “To date, Defendants have not offered any evidence to rebut the showing of irreparable harm….”

Further, Judge Ali “stands prepared to consider such arguments and evidence at the preliminary injunction stage, on the briefing schedule the parties requested.”

Judge Ali granted plaintiffs’ motion to enforce the TRO, adding:

Understandably given the early, emergency posture of these cases, the record and the parties’ arguments have been evolving quickly. The Court held a hearing within one day of being assigned to the cases and issued an order resolving the motions for a temporary restraining order the next day. As the Court emphasized throughout its earlier order, the parties’ arguments are still developing, and Defendants in particular have not yet offered refutations of Plaintiffs’ evidence or fully developed their arguments at this early stage…. The Court adopted in large part the parties’ proposed briefing schedule for the preliminary injunction motions, giving Defendants until February 21, 2025, to brief those motions as they had requested… The Court is prepared to hold a hearing on the preliminary injunction motions in both cases by March 4, 2025, and issue an opinion considering the full record and arguments before it with full dispatch. To facilitate this expedited schedule, and for the reasons stated in the Court’s TRO order, the Court will set the expiration date for the TRO at 11:59 p.m. on March 10, 2025, or the date the Court resolves the preliminary injunction motions, whichever is sooner.

One may agree or disagree with Judge Ali’s analysis; however, that is not impeachable.

THE CLARIFICATION DECISION

In the third decision, __ F. Supp. 3d __, 2025 WL 577516 (Feb. 22, 2025), the court addressed defendants’ motion for clarification or a stay pending their requested emergency appellate relief. The appellate court later denied that request.

Judge Ali noted: “Defendants’ instant motion does not contest or rebut Plaintiffs’ irreparable harm showing and does not contest or rebut the Court’s finding that the agency action here was arbitrary and capricious under the APA.”

The court “reiterated” its clarification. “The line here is unambiguous…. The line here is one that is well-worn and should be familiar in litigation—the line between good faith and pretext to justify otherwise unlawful conduct.” Id. at *1.

Contrary to Defendants’ instant motion, the Court has been clear the TRO does not mean that “all contractual and grant terms [are] enforceable by contempt” or that Defendants must “litigate every arguable breach of contract in a contempt posture.” … The Court has been explicit that the TRO does not place this Court in the position of supervising Defendants’ determinations as to whether to continue or terminate individual grants based on their terms.

Further, Judge Ali added:

Defendants’ remaining arguments in the instant motion show how quickly the ground is shifting in this matter and the importance of the Court having the opportunity to consider and expeditiously resolve the parties’ arguments at the preliminary injunction phase. For example, Defendants assert that an injunction would raise “serious constitutional concerns” given “the Executive Branch’s extensive foreign-relations powers.” … However, they do not explain how this argument bears on likely violation of the APA, the authority on which the TRO was based and whose constitutional validity has not been challenged. Moreover, the argument seems to simply presume that Defendants will prevail on the separation of powers questions that Plaintiffs have raised, without nearly enough analytical depth…. The parties requested a briefing schedule to develop these arguments for the preliminary injunction phase, which the Court has adopted and is still in progress. [Emphasis added; citations omitted].

Finally:

In defending the challenged action at the Court’s TRO hearing, Defendants did not even attempt to argue that the action was or could be justified based on waste, fraud, or abuse. And, to date, Defendants have not adduced any evidence of waste, fraud, or abuse aside from conclusory statements from a declarant who has “serious questions” about these topics. [Emphasis added].

One may agree or disagree with Judge Ali’s analysis; however, that is not impeachable.

THE APPEAL TO THE D.C. CIRCUIT

Defendants sought relief in the U.S. Court of Appeals for the District of Columbia Circuit. No. 25-5046, 2025 WL 621396, at *1 (D.C. Cir. Feb. 26, 2025). That court considered their emergency motion for immediate administrative stay and for stay pending appeal, and a cross-motion to dismiss the appeal.

The appellate court granted the motion to dismiss the government’s appeal:

Appellants did not appeal the district court’s TROs. They now ask us to stay the orders enforcing the TROs. A TRO is a temporary measure to preserve the status quo ante during the pendency of proceedings for preliminary or permanent injunctive relief.… TROs are generally unappealable because review “before the district court has finished its work and issued a ruling on the preliminary injunction” would “disrupt, if not render obsolete, the proceedings in the district court.” …. That reasoning applies with at least the same force to a later-issued order seeking to enforce an unappealed TRO. Appellants cite no case that has held that such a later-issued supporting order is appealable. [citations omitted].

The appellate court rejected the government’s argument that this was an appealable enforcement order, based on a failure by the government to submit proof of necessary facts. Id. at *1.

Nothing in the D.C. Circuit’s order suggests that impeachment would be justified.

THE STAY IN THE SUPREME COURT

The Hon. John G. Roberts, Jr., issued an ex parte stay order. In full, it reads:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the February 25, 2025 order of the United States District Court for the District of Columbia, case Nos. 1:25-cv-00400 and 1:25-cv-00402, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that any response to the application be filed on or before Friday, February 28, 2025, by 12 p.m. (EST).

/s/ John G. Roberts, Jr. Chief Justice of the United States

Dated this 26th

day of February, 2025.

Dep’t of State v. Aids Vaccine Advoc. Coal., __ U.S. __, No. 24A831, 2025 WL 618071 (U.S. Feb. 26, 2025)(Emphasis added).

The stay was issued prior to the consideration of any opposing arguments. On February 28, 2025, an Opposition to Application to Vacate Order was filed. It argues that the Supreme Court should await resolution of the preliminary injunction motion.

Nothing in the Supreme Court’s order suggests that impeachment would be justified.

Updated March 1, 2025.