Protecting the Judiciary From Another Dangerous, Fact-Free Impeachment Demand

An article was published yesterday by Wesley Case, titled Elon Musk calls for impeachment of Baltimore judge in DEI case – The Baltimore Banner (Feb. 22, 2025).[1]

Mr. Case wrote:

After a Baltimore judge blocked President Donald Trump’s executive order to end federal support for diversity, equity and inclusion programs, Elon Musk called for the judge’s impeachment Saturday.

Musk, the billionaire business owner and senior adviser to Trump, made his opinion of U.S. District Judge Adam Abelson’s ruling clear with a one-word message on his social media platform X: “Impeach!”

The Baltimore Banner article reports that Mr. Musk made the statement by quoting a post from Rep. Eli Crane (R-Ariz.), who asked “Another judge for impeachment consideration?”

I addressed Rep. Crane’s prior misdirected efforts in Protecting the Judiciary and the Rule of Law – Frivolous Articles to Impeach Federal Judge Filed – E-Discovery LLC (Feb.22, 2025); see Protecting the Judiciary and the Rule of Law – E-Discovery LLC (Feb. 17, 2025).

In that post, I wrote:

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. 

So, again, let’s start with the facts.

The Hon. Adam B. Abelson is a federal, life-tenured judge in the United States District Court for the District of Maryland.  The Court assigns cases to him and, after four plaintiffs filed this one in Court, it was assigned to Judge Abelson.

Judge Abelson’s decision is published.  National Assoc. of Diversity Officers in Higher Education v. Trump, __ F. Supp. 3d ___, 2025 WL 573764 (D. Md. Feb. 21, 2025).  It is over 60 pages long, and I can’t summarize here. Nor is that the point.

This blog focuses on the entirely misguided and unsupportable call to impeach a sitting federal judge because the Judge decided a case that was assigned to him.  Of course, it is the Judge’s job – indeed, His Honor’s Constitutional duty – to decide cases that are assigned to him.

In my words, less artful than Judge Abelson’s, the ruling is that the Executive Orders were enjoined because they were so poorly drafted that they violated the Constitution.

For example, Judge Abelson wrote:

[T]he Challenged Orders do not define any of the operative terms, such as “DEI,” “equity-related,” “promoting DEI,” “illegal DEI,” “illegal DEI and DEIA2 policies,” or “illegal discrimination or preferences,” … let alone identify the types of programs or policies the administration considers “illegal.”

And, His Honor wrote:

Here, the vagueness of the Termination Provision leaves current grant recipients and contractual counterparts unsure about what activities are prohibited under the [Executive] Order. Specifically, these individuals and organizations have no reasonable way to know what, if anything, they can do to bring their grants into compliance such that they are not considered “equity-related.”

The possibilities are almost endless, and many are pernicious. If an elementary school receives Department of Education funding for technology access, and a teacher uses a computer to teach the history of Jim Crow laws, does that risk the grant being deemed “equity-related” and the school being stripped of funding? If a road-construction grant is used to fill potholes in a low-income neighborhood instead of a wealthy neighborhood, does that render it “equity-related”? If a university grant helps fund the salary of a staff person who then helps teach college students about sexual harassment and the language of consent, would the funding for that person’s salary be stripped as “equity-related”? If a business with a grant from the Small Business Administration conducts a recruiting session at a historically Black college or university, could the business be stripped of the grant on that basis? [Emphasis added].

In fact, the decision states that:

[T]he Termination Provision is void for vagueness under the Fifth Amendment for two main reasons. First, the vagueness of the term “‘equity-related’ grants or contracts” invites arbitrary and discriminatory enforcement. Second, the vagueness of the term offers insufficient notice to current grantees about whether and how they can adapt their conduct to avoid termination of their grants or contracts.

Judge Abelson wrote:  “Vague laws invite arbitrary power.” Sessions, 584 U.S. at 175 (Gorsuch, J., concurring).

And, Judge Abelson gave the government a road map to remedy its self-inflicted flaws:

The government is free to promulgate regulations, take litigating positions, propose legislation, or any number of other steps, so long as they are consistent with statutes and the Constitution. The core problem here is that, as explained above, Plaintiffs have shown that the specific Challenged Provisions infringe on core constitutional protections, and that the status quo must be maintained while Plaintiffs and the government litigate the claims asserted in this case.

Everyone is free to agree or disagree with the Court’s analysis and decision.  Robust and respectful debate is healthy.

Calls for impeachment in these circumstances are not.  They are the opposite – they are dangerous and ill-advised.

In the prior blog, I quoted Norman Rockwell:

I suddenly remembered how Jim Edgerton had stood up at town meeting and said something that everybody disagreed with. But they let him have his say. No one shouted him down. My gosh, I thought, that’s it. There it is. Freedom of Speech.

Judges doing their job should not be the targets of calls for impeachment.  Appellate courts are available to review their decisions under the rule of law.

____

[1] This impeachment proposal is not isolated. L. Irwin, Elon Musk escalates attacks on federal judges, pushing for impeachment (Feb. 10, 2025); I. Swanson, Musk calls for impeachment of judge who blocked DOGE access at Treasury (undated).