FEB 24, 2025

Recent Impeachment Efforts of a Sitting Federal Judge Signal Judicial Independence Is Under Threat

The recent impeachment efforts of a sitting federal judge by the Trump administration and their Republican cohorts parallel one of history’s darkest chapters and the early stages of how Nazi Germany dismantled its justice system. Federal Judge Paul Englemayer of the Southern District of New York early Saturday, February 15, 2025 temporarily blocked billionaire Elon Musk’s government efficiency team known as “DOGE” from accessing government systems used to process trillions of dollars in payments, citing a risk that sensitive information could be improperly disclosed (Order). The order was granted after a coalition of Democratic attorneys general from 19 U.S. states filed a lawsuit on February 7, 2025, arguing Musk’s Department of Government Efficiency has no legal power to access the U.S. Department of Treasury systems. Hours after Judge Englemayer issued the order, Musk called it “absolutely insane!” in a post on his social media platform X.

Within days after the order blocking the Trump administration’s efforts to access the personal data of Americans, Republican Congressman Derrick Van Orden of Wisconsin filed a resolution seeking Federal District Court Judge Engelmayer’s removal, accusing him of “ruling against DOGE and Trump on purely political grounds, demonstrating clear bias and prejudice.” This move follows calls by Elon Musk for a “wave of judicial impeachments” and similar threats against other judges who have ruled against the administration’s policies.

Within days after this move, in a clash with the Governor of Maine, Janet Mills, due to her refusal to acknowledge she would enforce Trump’s executive order banning transgender athletes from participating in sports, Trump explicitly responded “We are the federal law”. As attorneys, we must act with speed and resist any attempts to dilute the judicial branch of the government before history repeats itself.

In 1932, Germany was a democratic republic with robust constitutional protections, including judicial independence and equality before the law. However, Hitler recognized that lawyers and judges could pose significant impediments to his plans for power. The process by which Hitler hijacked the legal system to achieve this goal was an incremental one. It happened as a result of many steps that led to the breakdown of the ability of the legal system to fulfill its fundamental mission to protect the people from governmental tyranny. His solution was swift and calculated – just two months after becoming chancellor in 1933, Hitler began issuing decrees barring Jewish lawyers and judges from German courts.

The Systematic Dismantling of Judicial Independence in Nazi Germany 

By 1939, the Nazis had near-complete control over the legal profession and the legal system. The lawyer’s duty was no longer to the client, but to serve and further the interests of the Reich. Attorneys, like judges and prosecutors, had recited an oath of loyalty to Hitler¹.This early attack on judicial independence marked the beginning of a systematic erosion of the rule of law. If Hitler disagreed with the outcome of a particular case, he would order the judgment to be changed. On October 1, 1942, in an act that further restricted—if not completely eliminated—the independence of the judiciary, Reich Minister of Justice Otto Thierack sent the first of a series of letters to the German judges. The letter provided sentencing guidelines and instructed judges to closely follow Nazi ideology when sentencing, including providing harsher sentences to Jewish people and members of other disfavored groups. Judges were admonished that their failure to correctly impose harsh sentences would result in the sentence being changed and could carry harsh penalties for the judges themselves; judges were threatened with removal from office, disciplinary sanctions or disbarment, and even criminal penalties.

The Standard for impeachment of a judge

What does it take to impeach a sitting judge? From Article III, Section 1 of the U.S. Constitution:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during Good Behaviour…

The meaning of the Good Behavior Clause has been the subject of long-standing debate. Some argue that the phrase denotes an alternative standard of removal for federal judges beyond high crimes and misdemeanors that normally may give rise to the impeachment of federal officers. Others have rejected this notion, reading the good behavior phrase simply to make clear that federal judges retain their office for life unless they are removed via a proper constitutional mechanism. Regardless of one’s interpretation of the Good Behavior clause, history has established that a judge cannot be impeached for anything short of a “high crime” such as treason.

The underlying threat of impeachment stems from a lawsuit filed by states challenging the Department of Treasury’s new policy that would expand access to the Bureau of Fiscal Services (BFS) payment systems to political appointees and “special government employees”. Judge Engelmayer’s decision was granted on three key grounds. The Court found that states would face irreparable harm without injunctive relief due to “the risk that the new policy presents of the disclosure of sensitive and confidential information and the heightened risk that the systems in question will be more vulnerable than before to hacking,” that the states demonstrated “a likelihood of success on the merits of their claims, with the States’ statutory claims presenting as particularly strong,” and the Court determined that “the balance of the equities, for the reasons stated by the States [namely privacy and confidentiality], favors the entry of emergency relief.”

History has shown us how attacks on judicial independence can serve as an early warning sign of democratic erosion. When Hitler’s 1933 decree barring Jewish lawyers and judges faced no formal protests from non-Jewish lawyers or bar associations, it opened the door to further erosions of legal rights.

Today’s attempts to impeach judges for their decisions – rather than for serious misconduct as the Constitution intends – echo these historical patterns of undermining judicial independence. The lesson from history is clear: protecting judicial independence is crucial for preserving the rule of law and democratic governance.

From the Governor of Illinois J.B. Pritzker in his State of the State Address on Wednesday, February 19, “We don’t have kings in America,” he said, “and I don’t intend to bend the knee to one… If you think I’m overreacting and sounding the alarm too soon, consider this: It took the Nazis one month, three weeks, two days, eight hours and 40 minutes to dismantle a constitutional republic. All I’m saying is when the five-alarm fire starts to burn, every good person better be ready to man a post with a bucket of water if you want to stop it from raging out of control. 

What  you Can do as an Attorney 

1. Flood the phone: Call your local congressional representative and leave a message expressing your discontent over the current administration’s attempt to thwart the constitution and demand a town hall meeting. Even if no one picks up, your representatives are obligated under the law to record your calls.

2. Write: The pen will always be mightier than the sword. As attorneys, we are trained in the art of persuasive writing. Write a blog or an article on Substack sharing your dissent and teach others about what our constitutional rights are.

3. Organize: Contact your local bar association and ask them to submit a statement in support of Judge Englemeyer. In recent weeks, William R. Bay, president of the American Bar Association ABA issued a powerful statement pledging to stand for the rule of law. The New York City Bar Association released a statement on February 17, 2025, and compared the resignations of multiple prosecutors in the case against New York City mayor Eric Adams as comparable to the Watergate “Saturday Night Massacre” resignations.

The German legal profession’s failure to resist early attacks on judicial independence had catastrophic consequences. The time for action is now so history does not repeat itself. By standing together to defend judicial independence, speaking out against improper attempts to influence judges, and organizing through our professional associations, we can fulfill our fundamental duty as members of the legal profession: protecting the rule of law and ensuring justice remains independent, fair, and accessible to all.

What do you think about the current state of judicial independence in America? Share your thoughts with us on our social media channels and join the conversation about protecting our democracy.

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¹The oath was as follows: “to remain loyal to the Fuehrer of the German Reich and people, Adolf Hitler, and to fulfill conscientiously the duties of a German attorney, so help me God.”