Can Law Forbid Threatening Judges with Impeachment Because of Their Votes?

Donald Trump, Rick Perry, and more.

At a rally in Wilkes-Barre, Pa., President Trump said this:

[H]ow courageous were our justices of the United States Supreme Court? What they did—they're saving our country. They're actually saving our country….

And I just have such respect for the job they've done against—and, you know, the radical left plays the ref. You know the great Bobby Knight? He supported me. He used to fight with the referees all the time. Scream at him, "Bobby, Bobby, please, don't do that." It's not going to work. He said, "You're right. It's not going to work now." It's going to work for the next one. And the next call, there'd be a flagrant foul, and they wouldn't call it. They didn't want to get screamed at.

The radical left harasses our judges and harasses our justices. They scream at them. They call them names. They say they're incompetent, they're horrible, they're this, they're that, they should be impeached. They're constantly saying they should be impeached. But they're screaming. And you know what? It has an effect on some people.

But so far, they've been very strong. It's really horrible. I believe it's illegal what they do. And it's a—I'm trying to give you things that you've never heard before, and this is true. I believe they are playing the ref. They're constantly criticizing our great—some of our greatest justices and a lot of great judges.

You know, I kept hearing so much about the Florida case because, you know, they weaponized our system, our government, totally weaponized. The first time it's ever happened. And they said, "My biggest case is in Florida, Florida, Florida." And we had a very brilliant—I don't know the judge—but a fair and very brilliant judge who took tremendous abuse. It would have been so easy for her to just rule against me. But she didn't do that.

She ruled for—she threw out the whole case. It was thrown out. That was a big case. And I have such respect for her—— because she is, in fact, brilliant. But they were hitting her so hard. She's going too slow. She's that. She should be removed immediately from office.

These people are horrible. I really think—I really think it's illegal what they do with judges and justices. They're playing the ref no different than Bobby Knight….

[W]e can't let these radical left thugs constantly scream at our judges and say, we're going to impeach him, we're going to take him out of office, or her. We're going to do horrible things to him. Continuous—when you heard Schumer get up on the stairs of the courthouse, Supreme Court, and talk about, "Kavanaugh, we're going to get you, Kavanaugh. We're going to hit you," or whatever the hell he said. If a mobster said that, they'd be put in jail immediately. He, frankly, should have been put in jail or certainly spoken to very strongly….

Now there's a lot going on here:

[1.] Obviously, simply "criticizing" judges is constitutionally protected under modern First Amendment law (fortunately for Trump, who has shown little hesitation in criticizing judges). That wasn't always so: During much of American history, judges punished people for "contempt of court" for their public statements that were seen as aimed at influencing court decisions. But in the mid-1900s, the Court made clear that such statements couldn't be punished, at least unless they involved threats of violence and the like (see, e.g., Bridges v. California (1941)).

[2.] Equally obviously, threats of criminal attack aimed at influencing judges—if a mobster did say "we're going to get you," which would likely be construed as involving physical "getting" rather than just political—can be punished, with no First Amendment problem.

[3.] Public calls for impeachment, by ordinary citizens, are also constitutionally protected, because they are calls for government action.

[4.] But here's the most interesting question: Could threats of impeachment by legislators or legislative leaders be criminally punished when they are aimed at influencing the judges' future votes? I think the answer is definitely "no," but the path to that answer is an interesting one—and it goes through a case involving, of all people, Trump's former Secretary of Energy, Rick Perry.

Let's step back a bit, and note why this is an interesting question. Say that an employer threatens employees that he will fire them if they vote in ways the employer disapproves of. Such threats (and such firing itself) are illegal in all states, and indeed a crime in many.

Likewise, say that an employer threatens an employee, who is also a part-time elected city council member, with firing if the employee votes on the city council in ways the employer disapproves of. I think many of the state statutes that bar firing employees based on their political activity would outlaw that, and constitutionally so. See also Wyo. Stats. § 22-26-116, which expressly forbids an employer's using employment actions "attempting to control such employee's vote on any question at any public election, or in any public position or board or in any office to which such employee may be appointed or elected."

Or say that an employer threatens an employee with being fired if the employee votes in a particular way while on a jury—or if the employee is a part-time judge, and renders a particular decision as a judge. I think that too can be criminalized, and is probably already criminal obstruction of justice or juror intimidation in many jurisdictions. (Indeed, many states expressly bar employers from using the threat of firing and similar threats to keep an employee from serving as a juror; federal law does the same with regard to service as a juror in federal cases. Surely employers can equally be barred from using such threats to influence the employee's vote as a juror.)

Nor is this limited to threats to do something illegal: If someone threatens a juror or a judge with disclosure of some embarrassing secret (e.g., an affair) if the juror or judge votes a particular way, that would be criminally punishable blackmail (to oversimplify slightly). Indeed, offering someone a job to induce him to vote a particular way as a judge or juror would be criminal bribery. Threatening to eject someone from a job to induce him to vote a particular way as a judge or juror could be criminally punishable, too.

Well, one might say, members of Congress threatening a judge with impeachment are just like employers threatening one of their employee who is a judge with being fired. Why then can't that be outlawed? For an answer, we can look at Ex parte Rick Perry, a 2016 case from Texas's high court for criminal matters. (Disclosure: I argued on behalf of amici in the case.)

In that case, Perry was prosecuted because, while governor, he threatened to veto (and did veto) a particular appropriation if an Austin DA, Rosemary Lehmberg, refused to resign. Lehmberg had pleaded guilty to drunk driving, so Perry argued that she was unfit for office; but Perry's critics argued that Perry's real motivation was that Lehmberg had been prosecuting his political allies. In any event, Perry was prosecuted on the theory that he had "intentionally or knowingly influenced or attempted to influence … Lehmberg … in the specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities as the elected District Attorney." The relevant statute stated, in effect,

A person commits an offense if by means of a threat, however communicated, to take or withhold action as a public servant, he influences or attempts to influence a public servant in a specific performance of his official duty.

On its face, the statute applied to Perry's threatened veto. And the statute would also indeed punish a legislator for expressly or implicitly threatening to impeach a judge if the judge votes a particular way—"a threat … to take … action as a public servant" that "attempts to influence a public servant [the judge] in a specific performance of his [the judge's] official duty."

But that can't be right, I think (see this amicus brief that I had co-filed in the case, together with Prerak Shah and then-lawyer Jim Ho, and see also this post). And the Texas court agreed, holding that the statute was unconstitutionally overbroad:

[P]ublic servants have a First Amendment right to engage in expression, even threats, regarding their official duties…. [T]he fact that speech is coercive does not, alone, mean that it can legitimately be proscribed: "[s]peech does not lose its protected character … simply because it may embarrass others or coerce them into action." And political logrolling—which involves the swap of one authorized official act for another—"has never before been condemned as extortion." …

Unconstitutional Applications Are Many

As we have explained, public servants have a First Amendment right to engage in expression, even threats, regarding their official duties…. [Yet under this statute, m]any threats that these public servants make as part of the normal functioning of government are criminalized:

• a threat by the governor to veto a bill unless it is amended,
• a threat by the governor to veto a bill unless a different bill he favors is also passed,
• a threat by the governor to use his veto power to wield "the budget hammer" over a state agency to force necessary improvements,
• a threat by the comptroller to refuse to certify the budget unless a budget shortfall is eliminated,
• a threat by the attorney general to file a lawsuit if a government official or entity proceeds with an undesired action or policy,
• a threat by a public defender to file, proceed with, or appeal a ruling on a motion to suppress unless a favorable plea agreement is reached,
• [a] threat by a trial judge to quash an indictment unless it is amended.

I think the same reasoning applies even to an explicit threat ("Vote to uphold this law, or we will impeach you"), and certainly to an implicit threat that tries to "work the refs." Members of Congress have the constitutional power to choose to impeach a judge. Under longstanding American legal tradition, they do not exercise that power based just on the judge's decisions, but they may break with tradition, and may threaten to break with that tradition. The protection against such impeachments is political (both the requirement of 2/3 vote in the Senate to remove a judge, and the possible voter pushback against a party that is seen as trying to influence the courts this way), not judicial. Likewise, the protection against threats of such impeachments comes from the integrity of the judges and the potential for voter retaliation against the politicians, not from the possibility of criminal punishment for the threat of impeachment.

The same of course applies to other situations. An employer's telling an employee who is a part-time city council member "Quit the city council, or I'll fire you" may be criminalized. But if a Vice-President and several Cabinet officials tell the sitting President, "Resign, or we'll invoke the Twenty-Fifth Amendment to force you to step aside," that can't be made a crime. And the list could go on, as the Perry opinion suggests.

To be sure, I should acknowledge that some of the lines here can be hazy. What constitutes punishable blackmail and what is protected speech, for instance, is famously complicated to decide. Even the definition of bribery can be quite vague around the edges. And, as I noted, ordinary employers generally may not try to influence their employee-judges with the threat of firing. But I think it's quite clear, as Ex parte Perry concludes, that government officials have broad latitude to threaten official action in order to pressure other government officials—and that would apply, I think, to threatening impeachment.

Comments

[ReaderY]

I don’t see this as difficult.

1. Since only Congress has the power of impeachment, somebody who isn’t a member of Congress has no actual power to take the threatened action.

2. Moreover, people can’t be prosecuted for petitioning Congress for a redress of grievances, even if the petition involvrd would be a crime if issued to someone else. Asking members of Congress to take an action they can take (see below) is I think not criminalizable.

3. The speech and debate clause protects members of Congress who make such threats.

4. Structurally, Congress is not merely a co-equal branch of Government. It is the first among equals, the one the Framers chose to vest most of the United States’ powers in, including the sole power of impeachment. Members of Congress are presumed to be capable of acting like big boys and to know how to discharge their offices and keep their oaths. It is not for courts to police them or the people who petition them. And frankly, the same with judges.

The Framers presumed that just because somebody threatens to petition Congress to impeach a judge unless the judge rules a certain way doesn’t mean that either the judge or Congress will be influenced by such idle chatter. There’s no comparison to threatening to petition an employee’s employer.

[Lee Moore]

Since only Congress has the power of impeachment, somebody who isn’t a member of Congress has no actual power to take the threatened action.

Until the next election.

The speech and debate clause protects members of Congress who make such threats.

Depends where they make them.

Members of Congress are presumed to be capable of acting like big boys and to know how to discharge their offices and keep their oaths.

Good one.

The Framers presumed that just because somebody threatens to petition Congress to impeach a judge unless the judge rules a certain way doesn’t mean that either the judge or Congress will be influenced by such idle chatter. There’s no comparison to threatening to petition an employee’s employer.

Depends who's doing the threatening and how much power they are assumed to have. Comments by a Senator who can block your promotion to the Appeals Court may have quite an influence on a judge.

[Martinned2]

This feels like it should be more naturally analysed as a question of immunities:

The Senators and Representatives shall (...) for any Speech or Debate in either House, (...) not be questioned in any other Place.

This implies that they can be prosecuted for things they say outside of Congress. (As indeed has always been the position in the UK.) I'm not sure if it makes sense to read the first amendment as overruling this lex specialis.

If someone wants to threaten a judge with impeachment for their vote, let them do it on the floor of the House/Senate.

[Krenn]

The question about "things said outside congress" gets complicated. There are lots of questions about "does it apply to explanations they give for their votes on the steps of congress, to the press? Does it apply to instructions given to aides in their congressional office, a mile away from the congressional building? does it apply to soliciting information from whistleblowers so that they then CAN use that information on the floor of congress? What about commitee work? congresional fact finding tours?

Generally speaking, courts have interpreted the speech and debate clause very broadly. I would think almost any statement about how a congressmen intends to vote, and why, would be protected.

Unless maybe it was used in a future trial of someone who had literally held a gun to congressman's head on live tv, and ordered the congressman to read a prepared statement. I guess the congressman who testified in his captor's future trial would have to be subject to cross-examination by the defense.

[Martinned2]

There's 300+ years of case law about this in the UK as well, where the rule is generally that art. 9 of the Bill of Rights applies to things said on the floor of the House and in committees, but not to anything else.

https://erskinemay.parliament.uk/section/4581/freedom-of-speech-in-debate

Footnote 13:

In the New Zealand case of Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713 (SC), the New Zealand Supreme Court held that a civil servant's briefing of a Minister in preparation for a Parliamentary Question was not covered by absolute privilege. The Parliament of New Zealand subsequently clarified the law in the Parliamentary Privilege Act 2014, which had the purpose of affirming and clarifying the nature, scope and extent of privileges, immunities and powers exercised by the House of Representatives and in securing adequate protection from civil and criminal legal liability of the communication of and documents relating to proceedings in Parliament.

[Michael Ejercito]

The prosecution of Rick Perry is a prosecution that should have never happened.

[Krayt]

And was a fascinating discussion of plenary powers like the veto. Even if bribed to veto something, the illegality was on the tit for tat agreement, and not on the veto action itself, as (state of Texas) congress had no constitutional authority to direct the use of the executive’s veto power. Presumably a bribe-driven veto could not be reversed by the courts, or the legislature (without a veto-proof override) as those branches do not have the veto-or-not power.

Anyway, IIRC, the case was thrown out because “withholding funds” applied to allocated funds, and funds veto’d (or not yet anything'd) were not allocated. Trump withholding funds allocated was much closer to the issue.

[Eugene Volokh]

[Sorry, meant to post this as a response to ReaderY's comment above.]

Just to be clear, the Speech or Debate Clause covers statements within Congressional proceedings (to oversimplify), but not general statements in public, see Hutchinson v. Proxmire (1979):

A speech by [a Senator] in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record. But neither the newsletters nor the press release was "essential to the deliberations of the Senate" and neither was part of the deliberative process.

[Martinned2]

Of course. That's article 9 of the Bill of Rights.

https://www.parliament.uk/business/publications/house-of-lords-publications/rules-and-guides-for-business/companion-to-the-standing-orders/companion-chapter-12/

[Lee Moore]

It looks importantly different :

"It is a basic principle that parliamentary privilege belongs to the House as a whole and not to the individual member,"

ie it looks as if, in the UK, the majority party can withdraw the protection from a minority member at will. Indeed I have a vague recollection that there have been a number of cases around the world where someone's immunity has been withdrawn by the government/parliament just because - well we can.

The US Speech and Debate Clause though, clearly protects individual members and cannot be withdrawn by the majority. A much better way of doing it.

[John F. Carr]

There is a form of immunity formerly widespread in South America which protects important government officials from prosecution unless the legislature votes to remove immunity. If the United States had such a rule prosecutors might have had to ask Congress to authorize prosecution of Santos and Menendez. Or even Trump.

[Martinned2]

This is the privilege against arrest, and the rule you describe is common in many countries around the world, including the European Parliament.

Articles 8, 9, and 17 of the Protocol on the Immunities of the European Union

Article 8
Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.

Article 9
During the sessions of the European Parliament, its Members shall enjoy:
(a) in the territory of their own State, the immunities accorded to members of their parliament;
(b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.

Article 17
Privileges, immunities and facilities shall be accorded to officials and other servants of the Union solely in the interests of the Union.

Each institution of the Union shall be required to waive the immunity accorded to an official or other servant wherever that institution considers that the waiver of such immunity is not contrary to the interests of the Union.

[Martinned2]

it looks as if, in the UK, the majority party can withdraw the protection from a minority member at will

It cannot. The phrase you quoted talks about the philosophical underpinning of the rule, not the legal one. Art. 9 of the Bill of Rights is a statute, and would require another statute to overrule.

But what the majority party can do, at least in theory, is have the House itself punish a member. Quoting Erskine May again (op cit.):

In the past, Members were frequently called to account and punished by the House for offensive words spoken before the House. Some have been admonished, others imprisoned, and in the Commons some have been expelled, CJ (1547–1628) 524. Although in extreme cases it would still be possible for the House itself to take action against abuse of the freedom of speech, in modern practice the disciplinary powers of privilege are not normally resorted to. In the House of Commons, offensive words are dealt with by the exercise of the summary powers conferred on the Chair by Standing Order Nos 42, 43 and 44 (see paras 21.41–21.52 ). The unquestionable right of the Lords to commit a peer for words spoken in the House was recognised by the Court of King's Bench in Lord Shaftesbury's case, (1677) 86 ER 792.

My understanding is that in the US Congress each house also has the right to discipline members for what they say or how they say it. (Albeit probably without the theoretical possibility of having them locked up.)

[Krenn]

Honestly, that sounds really dated. Today, public statements to the press totally are part of the deliberative process.

Cspan didn't start airing congress until 1979, and things really changed at that point.

[Martinned2]

For the first 100-odd years after the adoption of the Bill of Rights, Parliament regularly used to send the Serjeant-at-Arms to punish people for publishing what was said in Parliament.

[Area Man]

Ex parte Perry was how I thought Trump v. US should have been decided. Generally applicable laws are presumptively constitutional. But a former president can make an as-applied challenge to the statute. Unlike most criminal defendants, though, but like Perry, I think the former president should be able to make such an as-applied challenge pretrial. (And because of the inter-branch conflict, I would have also required a thumb on the scale in favor of the former president.) That method would have been a better fit and been more workable than the tripartite immunity inquiry the Court settled on.

[Bored Lawyer]

I don't understand what you are saying. Trump was an as-applied challenged. So how is the decision different from the Perry decision?

[Area Man]

I’m always open to being wrong, but my understanding is that Trump claimed immunity from prosecution, not that the statutes he was prosecuted under were unconstitutional as applied to him. Functionally those might be similar outcomes, but they are distinct theories. And SCOTUS agreed that he was immune from prosecution for official acts, not that the statutes were unconstitutional as applied to former presidents. Again, happy to be corrected if I’m wrong.

[Bored Lawyer]

OK, I guess there is a difference. He is claiming a general immunity from prosecution, similar to the immunity judges enjoy for civil matters. But he was not claiming the statutes were unconstitutional on their face, just that he could not be prosecuted.

The Court bought it only in part.

Other than that, how is Perry different from Trump?

[Michael Ejercito]

They only bought in in part because the lower court categorically denied immunity in all circumstances.

[Lee Moore]

He, frankly, should have been put in jail or certainly spoken to very strongly….

A classic Trump line. He loves to do the wild exaggeration .... and then the powderpuff.

[jimc5499]

It was my understanding that Congress' power of impeachment was only to be used for criminal matters. Members of Congress calling for the impeachment of members of the US Supreme Court because they don't like their rulings is a misuse of power plain and simple. If you want criminal, how about Members of Congress calling for the assault and harassment of Members of the US Supreme Court. Democrat Members of Congress have done BOTH.

[Krenn]

Scotus ruling in Nixon vs US (A judge, not the president) was very clear on this. by an 8-1 vote, Congress can impeach and convict any judge at any time for any reason, and only congress can say whether proper procedures were followed, because that's what "sole judge" of impeachments means.

[ReaderY]

That’s true. The problem is that only each member of Congress’ personal sense of honor and duty, fear of how their constituents might think and vote, and fear other members of Congress might expel them prevents such misuse. Nothing else does.

[Bored Lawyer]

Yes, the Constitution presumes that men will generally act honorably for the reasons you state. (Not necessarily that they are honorable, just act that way.)

[Krayt]

Nixon would have been kicked. They met with him and told him as much, the jig was up.

Clinton and Trump 1 and 2 did not meet that standard, where sufficient of his supporters agreed he was so bad he needed to go.

[Randal]

It depends on why Congress dislikes the rulings. Generally, they're going to be accusing the Justices of abuse of power, e.g. that they should've recused or they had some improper motive. Remember, Justices' tenure only lasts as long as they're on "Good Behavior," which is pretty open-ended. It's pretty easy to argue that the behavior of Thomas, in particular, hasn't been good.

[ducksalad]

It’s pretty easy to argue that the behavior of Thomas, in particular, hasn’t been good.

Not that easy to argue *convincingly* except to someone who already dislikes his decisions for reasons having nothing to do with misconduct or motives.

If there was plausible evidence that Clarence Thomas was really a great fan of abortion, federal insurance mandates, punishing political speech by Citizens United, and prosecuting ex-presidents for their official actions, but cynically sold his vote in return for some yacht trips, then that would be an "improper motive".

But in reality it's hard to see any connection whatsoever between the yacht trips and his most hated decisions.

[Randal]

Oh please. If Soros were secretly paying KBJ’s daughter’s tuition and mother’s rent, you wouldn’t be so blithe about it.

[Purple Martin]

"Convincingly" is an opinion. But it is pretty easy to to argue "strongly," with extensive, verifiable supporting evidence, that irrespective of any knowledge of his judicial philosophy or the specifics of decisions , concurrences, or dissentals, the extra-judicial behavior of Justice Thomas, in particular...has not been good.

The evidence primarily consists of:

1) total value of and frequency of receipt, of items or services of value provided to a Justice of the Supreme Court...
2) by persons with no relationship/history of providing such items/service to the Justice predating nomination to the Court...
3) as compared to the history and experiences of other Justices serving either with Justice Thomas, or concurrently in past eras of the U.S. Supreme Court.

A verified history, greatly disproportional to peers in the same circumstances, of secretly accepting items/services of great value, provides compelling evidence of a Justice not meeting the Constitutional standard of "hold their office during good behavior."

Note that constitutional standard is not a statutory standard. And there are also good, logical legal arguments that much or most of his not-good behavior didn't reach the standards of statutory illegality (a history of avoiding financial reporting requirements applying to all government employees excepted...though repeated instances of filing such reports only after such conduct had been reported elsewhere might provide the mens rhe required for enhanced sentencing under sentencing guidelines).

And because we're mostly not talking about criminal prosecution but impeachment, that gets us back to "convincingly." Because every member of congress is involved in the impeachment process, and decides on his or her own just what convincingly means when voting on House impeachment or Senate conviction. A bipartisan majority of both the House and Senate including eighteen Republicans found the evidence convincing enough to vote for Donald Trump's impeachment and conviction in 2021.

It's a pity that only ten more Republican Senators couldn't vote their true principles because, as ducksalad correctly observes, for reasons having nothing to do with misconduct or motives. Had they done so, their odds of their winning back the presidency this November would be much higher.

[David Nieporent]

It was my understanding that Congress’ power of impeachment was only to be used for criminal matters.

Your understanding was mistaken. Even if that were true for other officials — it's not, plus that's unhelpful since in the case of impeachment Congress is the judge of whether something is a criminal matter — judges serve "during good behavior" not "unless they commit a crime."

[Bored Lawyer]

The good behavior is part of their tenure. But impeachment mentions high crimes and misdemeanors.

I have sometimes hypothesized about a judge who comes in one day a year to rule on a couple of motions, and then spends the rest of his time playing golf. Nothing corrupt, just not doing his job.

Is that "good behavior?" Is it impeachable conduct?

[David Nieporent]

I think it is not good behavior and is impeachable.

Fun fact: the notion that judges are to be removed via impeachment has to be inferred from history; the text of the constitution doesn't expressly say that. (In fact, the only office that it expressly says impeachment applies to is the presidency, because it specifies that the Chief Justice presides over impeachment of presidents.)

[Stephen Lathrop]

Bored Lawyer — Try to remember that when interpreting the words of the Constitution, whatever meaning context contributes comes only from the context applicable at the times when the various texts were written. Proper insight into contextual meaning comes not at all from the meaning those same words might have if interpreted in modern context. The founders had no way to anticipate modern context, and thus certainly did not rely on it at all.

For instance, treason is defined in the Constitution. Excluded by that definition is the essentially feudal notion of, "high treason." In British history, and still in America during the founding era, high treason was approximately defined as failure by someone who owed fealty to the king to render obedience. That meant failure to obey in any way, by someone who owed the king obedience.

That demand for obedience to the sovereign distinguished high treason from petit treason, which involved offenses, especially murders, committed against folks ranked lower than the sovereign, but higher than a subordinate doing the killing. A priest killing a bishop, or even a wife killing her husband, were examples of petit treason.

Thus, what distinguished high crimes from others was not any aspect of the crime itself, but instead the social rank of the person who suffered the offense. High treason was not high because it was distinguished by any particular atrocity in the act itself. It was high because it was the sovereign who was targeted.

Thus, by contextual implication, the notion expressed by, "high crimes and misdemeanors," in the U.S. Constitution ought not be interpreted as commission of especially grievous ordinary crimes. It ought to be interpreted instead as conduct—whether or not ordinarily criminal—which interferes with, or thwarts, operation of the joint popular sovereignty of the United States.

Thus charges of high crimes and misdemeanors are meant to be evaluated by Congress on a case by case basis, making illegitimate interference with Constitutional order the standard. In those evaluations the conduct in question could even be culpably criminal, without being either a high crime, or a high misdemeanor. Or it might be both criminal, and a high crime or misdemeanor.

But either way, the standards which apply are not those of criminal law. They are political standards Congress applies according to its own judgment about interference with American sovereignty, and the sovereign's Constitutionally decreed system of government.

Obviously, all that would come as news to many members of Congress, who remain even less conversant with founding era-context than they are with most of their other responsibilities.

[John F. Carr]

How does one distinguish "resign or I'll veto your bill" from "donate $1 million to my favorite cause or I'll veto your bill" or "give me $1 million or I'll veto your bill"? Is the standard more or less "anything of value", with a resignation being nothing of value?

We had a case in the Supreme Judicial Court of Massachusetts lately ruling that asking one's partner not to testify to save the relationship was not a criminal attempt to influence a witness. There was no threat, no offer of anything of value, no request for perjury. The one dissenting vote said it was an implied threat to beat her up. A threat of violence would clearly be within the reach of the statute.

[ducksalad]

“Donate $1 million to my favorite cause or I’ll veto your bill”

Not sure that one’s always illegal, especially if the donation is to the government.

Compare to the practice of asking large-scale developers to build a park or some other public improvement in order to get their rezoning request approved. (Not talking about standard, generally mandated requirements for streets or percent greenspace, but some standalone public benefit not directly related to the project.)

Or the practice of developers pre-emptively announcing they’ll do such things, to build up goodwill before formally making the rezoning request.

[Mark Regan]

I do not think we liberals are demanding that Judge Cannon be impeached. We are hoping that when this matter goes to the Eleventh Circuit, the Eleventh Circuit recognizes that she's butchered the case so badly that on remand the case should be assigned to a different judge.

[Martinned2]

As per Dutch custom, a case that's remanded should always go to a different judge.

[Brett Bellmore]

This would appear to be a complete non-starter, based on the same reasoning as the Trump immunity case; Impeachment, and voting for the same, is a core legislative function, it's constitutionally incapable of being a crime.

[ducksalad]

Agreed.

How many constitutional non-starters should we tolerate from a candidate? Any number as long as some other boogeyman, actually boogeywoman, is worse?

I’m not convinced by the argument that since it’s a non-starter we can go ahead and vote for the candidate and then rely on courts to shut it down.

[Brett Bellmore]

I don't read it as Trump proposing to sic the DOJ on Schumer, though. I read it as Trump pointing out that Schumer has a mob mentality, that we'd never tolerate outside of Congress.

The reason I read it that way is that, while I don't think Trump is exactly a constitutional scholar, (He's got more of a Schoolhouse Rock level understanding of the Constitution, which sadly actually puts him ahead of a lot of members of Congress...) he is aware that siccing the DOJ on a Congressional leader would be a great way to get impeached a third time, and this time convicted.

[QuantumBoxCat]

What if it is impossible for the person making the “threat” to actually carry out the threat?

If my employer threatens to fire me if I do x, I may not do x because I know my employer has the power tol carry out the threat. But, a single member of Congress does not have the power to impeach a federal judge. Impeachment requires the votes of 218 members of the House, and then conviction requires the votes of 67 members of the Senate. If I was an employee that had a similar process in place to fire me, and one person within that process threatened to fire me if I do x, I’m not likely to not do x because I know that single person doesn’t have the power to fire me.

If I threaten to strap Eugene to the sun unless he shuts down this blog, I assume he will not shut down the blog. Of the many reasons for that decision, one would be the impossibility to carry through with my threat, thus making it ring hollow.

Perhaps it would be different if a member of the House threatened to introduce articles of impeachment against a judge for their decision in case x. That would be a threat that could in fact be acted on. A member of Congress threatening to impeach a judge is just political rhetoric, or indicative of the members lack of understanding on constitutional procedure. It’s even sillier for a member of the Senate to threaten impeachment, since that member has no actual vote in the initial impeachment process (only in the subsequent conviction process).

[David Nieporent]

If I threaten to strap Eugene to the sun unless he shuts down this blog, I assume he will not shut down the blog.

Only one way to find out!

[TwelveInchPianist]

I'm not sure it's that obvious. A judge who alters his vote because of the threat of impeachment would be guilty of accepting a bribe under federal law.

And a congressman who tries to induce a judge to commit such a crime could be punished for soliciting a crime.

[TwelveInchPianist]

I would assume that a Congressman could be punished for telling a judge that if he votes a certain way, Congress would vote to give the judge's kid a million dollars.

[TwelveInchPianist]

But if a Vice-President and several Cabinet officials tell the sitting President, "Resign, or we'll invoke the Twenty-Fifth Amendment to force you to step aside," that can't be made a crime.

What if they said, veto this bill or we'll invoke the 25th Amendment?

[Randal]

These stupid hypos are stupid. If the cabinet and VP are already all that craven and anti-Pres, the least of our problems will be whether invoking the 25th Amendment has criminal penalties attached or not.

[QuantumBoxCat]

Then the President fires them and nominates new Cabinet members.

The Cabinet members in your hypo are not very politically savvy.

[David Nieporent]

Not to mention that all these "threaten to invoke the 25th amendment" scenarios suffer from not having read the 25th amendment. It's designed to deal with an incapacitated president, not a disagreeable one. If the president has the ability to object to the VP/cabinet's invocation, it fails unless two thirds of both houses of Congress decide he can't continue. (That's a higher standard than impeachment, which only requires a simple majority of the House.)

[KRB]

What if the VP and the cabinet threaten to invoke the 25th Amendment because they think that the President will lose his bid for re-election (not because he is too incompetent to remain in office, though), and they plausibly believe that there are enough members of the President's party who would go along to maintain party control of the White House and enough members of the opposing party who would support it because of their belief that the President is a) actually incompetent, b) corrupt, or c) just an all-round bad guy?

[Martinned2]

That would assume a strange strategy from the opposition party.

And yes, the US would be much better off if more presidents got impeached for good reasons, bad reasons, or no reasons at all.

[Mike Hansberry]

Another hypothetical to ponder:

Suppose a prosecutor and and judge conspired to charge someone on specious grounds in order to prevent them from seeking office. Would that amount to a fraud?

Now I know that sort of thing happens only in communist countries (e.g., Putin jailing his political enemies) and it could never happen here, but just asking for the sake of argument.

What if later on the opposing political party were to arrange for the arrest and prosecution of the prosecutor and judge in the earlier scenario? Would that be fraud?

[Deborah Craytor]

"Say that an employer threatens employees that he will fire them if they vote in ways the employer disapproves of. Such threats (and such firing itself) are illegal in all states, and indeed a crime in many." Is this actually illegal in all states? Georgia is an employment-at-will state, and I'm not aware of any statute here which grants protected status to non-government employees on the basis of their political beliefs or affiliations.