High Crimes or Bad Behavior?
Consecutive slow motion constitutional crises, of increasing frequency and magnitude, have occurred since Nixon was ousted. The latest was initiated by SDNY federal Judge Paul Engelmayer’s 1:00 am, Saturday, February 8 ex parte temporary restraining order, expiring after a week, prohibiting Treasury Secretary Bessent from performing his constitutional responsibilities and banning DOGE auditors. 19 judge-shopping state attorneys general petitioned Engelmayer (scheduled for nighttime emergency duty) for the “emergency” order. Engelmayer ruled on an emailed filing submitted at 9:30 pm, Friday February 7, the eve of holy Super Bowl weekend. Is nothing sacred to heathen Leftists? They probably guzzled Bud Lights and binge-watched PBS to celebrate, playing Taylor Swift in the background.
Nobody accused Engelmayer of producing a coherent, unambiguous, constitutional order; or the states of possessing standing to interfere with Article 2 executive branch normal functions. Senator Cotton’s February 8, 4:12 pm X post summarized the crisis du jour:
https://www.americanthinker.com/articles/2025/02/high_crimes_or_bad_behavior.html
It was a judicial insurrection. Engelmayer stipulated several filing deadlines, extending to the following Friday, once Judge Jeannette Vargas received the case on Monday. The administration’s response objecting to Engelmayer’s order was filed on Sunday, February 9. Recognizing the gravity of the crisis Engelmayer single-handedly created, on Monday morning February 10 Judge Vargas tossed Engelmayer’s deadlines and imposed expedited ones. She ordered the parties to meet, the plaintiffs to respond to Trump’s filed objection by 5:00 pm that day, and the administration’s subsequent response by 11:00 pm. On February 11 Biden-appointed Vargas reinstated Secretary Bessent’s control over Treasury but left Engelmayer’s DOGE handcuffs intact. Business as usual for SDNY. Appellate courts will restore sanity.
Attorney Andrew Branca points out that everyone focuses on constitutional impeachment provisions, requiring high crimes and misdemeanors for removing federal judges. This imposes an exceptionally high burden for convictions. House impeachments of 15 federal judges yielded 8 Senate convictions. Another clause potentially applies to wayward judges. Branca proposes a solution. Let’s go to the text:
Article. III.
Section. 1.
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, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Branca’s point is that if good behavior is requisite for judicial service, bad behavior must have been intended as grounds for removal by means other than impeachment. Arbitrary judicial rulings are neither high crimes or misdemeanors. They are civil, not criminal matters. Criminality exists when judges are bribed or commit treason. Politicized rulings aren’t crimes. Criminalizing judicial rulings would descend a slippery slope.
Hamilton’s Federalist 78 forecast neutral rulings from lifetime judges insulated from political pressures. He was naive in retrospect: “The judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two;” “The general liberty of the people can never be endangered from that quarter;” Hamilton was prescient in one area: “Liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;” Congress and judges have tag-teamed MAGA.Hamilton’s “least dangerous” branch frequently usurps legislative and presidential prerogatives. He recognized humans are fallible: “All judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR;” (emphasis in the original), underscoring Branca’s point.
Branca emphasizes relevant provisions of federal judges’ Code of Conduct: “A judge should uphold the integrity and independence of the judiciary; a judge should avoid impropriety and the appearance of impropriety; a judge should perform the duties of the office fairly, impartially, and diligently by these standards.” He addresses removal of rogue judges:
‘Bad behavior…should not be read as meaning the same thing’’ [as high crimes and misdemeanors.] ...The founders clearly knew how to write the words high crimes and misdemeanors and if that’s the standard they wanted applied in Article 3, Section 1 they simply would have written that.
A reasonable threshold for bad behavior removal would be a simple majority vote in both the House and the Senate. …[Engelmayer] ‘fail[ed] to uphold the integrity and independence of the judiciary by acting as a political activist of the progressive Left by engaging in the production of a TRO that fails to avoid impropriety, or at least the appearance of impropriety, by failing to perform his duties fairly, impartially, and diligently. …Why didn’t the judge even try to contact the Trump administration lawyer[s] for their input in opposition to this TRO and instead move forward on an ex parte basis hearing, only one side of the argument, in the middle of the night? It’s not like a Trump administration lawyer would have been difficult to get a hold of.’
Lawfare requires ultra partisan judges. Engelmayer’s stunt highlights a chronic problem. His ruling will be of little and brief consequence so it’s unnecessary to target him for removal. But he’s hardly alone. What if this evolves into a wider, coordinated pattern of lawless rulings hobbling Trump? At some point Branca’s strategy may require testing, triggering Supreme Court review. What would they conclude, that partisan judges can act arbitrarily, lawlessly, and outrageously but unless 67 Senate votes are achieved judges remain? Certain Supreme Court justices should look into the mirror in this regard. A constitutional amendment is overdue.
Progressive lawfare warriors self-destruct when pulling reckless stunts such as this one sponsored by 19 state officials. While this plays to their base and aids fundraising, they must know higher courts will slap them down. Trump reacted philosophically to Engelmayer’s ruling. The affair provides proof his people are over the target. Toxic TDS causes lawfare insurrectionists to play into Trump’s hands, unwittingly playing the fools he uses to illustrate everything wrong with the country.
New York was the lead plaintiff in this filing, i.e., rabid Trump nemesis New York Attorney General Letitia James. James has gubernatorial ambitions. Should she run for AG reelection or governor in 2026, Your Favorite President will use all options to defeat her, including Musk’s millions.
All 19 attorneys general need targeting. If voters toss only one the others will reconsider lawfare. Here’s the list: New York, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, and Wisconsin. Those geniuses forgot Trump just won Arizona, Nevada, North Carolina, and Wisconsin.
TDS triggers Leftist and RINO self-immolation. Liz Cheney and Adam Kinzinger were early offerings on the funeral pyre. During Trump’s second term they are lining up.
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