Judge Dread

An easy way to tell a Donald Trump voter who supports him because of the fascism from one who supports him in spite of it is to show them the president’s latest Truth Social post.

If they start sweating and stammering that they only wanted ch-ch-ch-cheaper eggs, the flickering pilot light on their civic conscience is still lit.

If instead their eyes go glassy, their pupils dilate, and their tongue begins flicking, run.

This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President – He didn’t WIN the popular VOTE (by a lot!), he didn’t WIN ALL SEVEN SWING STATES, he didn’t WIN 2,750 to 525 Counties, HE DIDN’T WIN ANYTHING! I WON FOR MANY REASONS, IN AN OVERWHELMING MANDATE, BUT FIGHTING ILLEGAL IMMIGRATION MAY HAVE BEEN THE NUMBER ONE REASON FOR THIS HISTORIC VICTORY. I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!! WE DON’T WANT VICIOUS, VIOLENT, AND DEMENTED CRIMINALS, MANY OF THEM DERANGED MURDERERS, IN OUR COUNTRY. MAKE AMERICA GREAT AGAIN!!!

The radical left lunatic in question is James Boasberg, a key player in yesterday’s newsletter on banana Republicanism. Boasberg is the federal district judge who tried to halt the deportation of several hundred alleged immigrant gang members on Saturday—only to learn during the hearing that they were already en route to captivity in El Salvador.

At a second hearing on Monday, he demanded to know whether the Justice Department deliberately defied his order halting the removals. Prosecutors refused to tell him, insisting that information on the deportation flights was a matter of “national security.” Boasberg then ordered them to certify in writing by noon on Tuesday that no flights left the U.S. after his written order had taken effect. The president’s flatulent social media tirade is his official response to that order, I take it.

Nothing about Trump’s return to office has been surprising except the pace. He was always going to challenge the judiciary’s power to restrain the executive branch and was almost certain to do so on cartoonish strongman grounds like public safety and national security. When you elect an authoritarian demagogue with a coup plot already under his belt, that’s what you sign up for. It’s the civic price of cheaper eggs.

But I did not expect that, with 46 months left in his term, we would already have reached the point where the White House immigration czar is barking that he doesn’t care what judges think, where right-wing lawyers are on Fox News calling on the White House to ignore court orders, and where Trump’s most influential deputy is arguing that judicial review is incompatible with democracy. Now, two days shy of two months in office, here comes the president himself to demand that congressional Republicans impeach and remove Boasberg. Fascism moves fast!

How is this impeachment idiocy likely to play out politically?

High crimes.

Start with the Constitution, which reserves impeachment for “Treason, Bribery, or other High Crimes and Misdemeanors.” Those high crimes needn’t be statutory crimes, as we were reminded—twice—during Trump’s first term, but the reference to treason and bribery suggests that impeachment should be reserved for cases of corruption. Traditionally understood, a “high crime” is when an official abuses his office to serve some personal interest, like lining his pockets or advancing another nation’s agenda, instead of the public’s interest.

“The judge ruled in a way I don’t like” is good grounds for an appeal, but it sure ain’t a high crime.

Unless there’s reason to believe that Boasberg was on the take in seeking to halt this weekend’s deportations (or under deep cover as an agent of the Venezuelan government, I suppose), impeaching him would amount to the House treating a court ruling against the president as a type of official corruption. Which is insane—but, in fairness, a pretty logical consequence of Republican cultishness since 2015.

Actually, it’s worse than that. Boasberg hasn’t actually ruled yet on Trump’s claim that the Alien Enemies Act of 1798 empowers him to deport immigrant gang members without due process. The president might win on that issue in the end; all the judge did was freeze deportations while the matter is litigated. To impeach him at this point would be to make temporarily restraining the president a high crime.

It’s preposterous, but don’t take my word for it. On Tuesday, the chief justice of the United States piped up in response to Trump’s bleat. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” John Roberts said in a terse statement. “The normal appellate review process exists for that purpose.”

Consider how this moronic gambit has already backfired for Trump.

It’s forced the judiciary into a defensive crouch, a bad move for a president with lots of business pending before the courts. By threatening Boasberg, Trump has put the federal bench in a position in which any ruling in his favor will invite accusations that the judge responsible was intimidated into doing his bidding. Courts won’t like having their independence impugned that way.

Maybe they’ll lay that concern aside and rule strictly on the merits, as they’re supposed to do, but it’s worth noting how quick Trump was to praise Amy Coney Barrett recently after she angered his base by ruling against him. He seemed to grasp that making enemies of judges won’t help his chances in court. Fast-forward a few days and here he is making enemies of Boasberg, John Roberts, and the wider judiciary.

He’s also failing the puke test in certain sectors of the right’s legal commentariat. Not every conservative lawyer has been reduced to the prostrate obsequiousness of Article III Project founder Mike Davis or acting U.S. attorney Ed Martin, you know; National Review’s Andy McCarthy, normally a dependable defender of executive power, blanched at how the Justice Department has behaved in Boasberg’s case. “It’s all right to complain bitterly about court orders,” he wrote on Monday, “but they are not to be ignored, much less knowingly flouted.”

The president will need people like McCarthy in his corner to help shape public opinion over the legal battles to come. Demanding Boasberg’s impeachment may end up costing him the benefit of the doubt with conservatives still hoping to reconcile this rancid political project with the rule of law.

A Republican pickle.

Trump has also put his Republican allies in Congress in a no-win situation. 

There’s zero chance of 67 senators voting to convict Boasberg after an impeachment trial. Not a single Democrat, including “mavericks” like John Fetterman, would dare vote guilty, especially after watching liberals revolt against Chuck Schumer for not resisting Trump more aggressively. Moderate Republicans like Susan Collins and Lisa Murkowski would likely also balk at conviction, ensuring bipartisan support for acquittal. By the time the trial was over, the judiciary would have secured a vote of confidence from the Senate in holding the executive branch to account, strengthening the bench’s legitimacy and possibly its resolve.

That assumes that the House would vote to impeach Boasberg in the first place. Would it? 

Thanks to Trump, every Republican in the lower chamber will now be pressed to take a position on the matter. Those who represent swing districts will be caught between bitterly alienating their Democratic constituents by moving forward or bitterly alienating their Republican ones by refusing. Roberts’ statement on Tuesday compounds their dilemma: He’s a despised figure among MAGA diehards, but still a more or less respected figure among the rest of the population. Siding with or against the chief justice will carry political risk.

Trump being Trump, he’ll probably make it harder for House Republicans by specifying that he believes Boasberg is guilty of treason. Not only is that the most demagogic possible position to take, and therefore the one that will appeal to him instinctively, it suits the authoritarian belief that the leader’s interests are indistinguishable from the nation’s. By thwarting the president, the judge will be said to have betrayed democracy itself, never mind the democratic interests in due process and making sure that the president behaves constitutionally.

Because the GOP’s House majority is so narrow, my guess is that Republicans would lack the votes to impeach and everyone in the party would end up mad at one another. Trump and his minions would rage that Mike Johnson’s conference refused to make an example of Boasberg and everyone else would seethe that the president is once again wasting time on unpopular stuff that no one voted for, like tariffs or annexing Canada.

And while Americans did vote for Trump to get tough on immigration, a fight with the courts over the Alien Enemies Act might cause them to consider whether he’s gotten too tough. Some U.S. citizens allege that they’ve been mistaken for illegal aliens and detained by federal agents; some detainees have allegedly disappeared into the system with no clue as to their whereabouts; some of the so-called gang members deported this weekend to El Salvador turn out not to have criminal records in the U.S., raising the question of whether they’ve also been confused with others.

Are Americans so gung ho for immigration enforcement that they’re willing to cut basic procedural corners to facilitate it? By picking a fight with Boasberg, Trump might force them to decide.

Gradually, then suddenly.

Even so, I think this impeachment demagoguery has more upside for him politically than downside.

However disconnected from reality the president is, he’s surely not so far gone that he believes there’s a realistic chance that Boasberg would be convicted by the Senate. He’s been through this process himself—twice, I’ll remind you again—so he knows firsthand how impossible it is to convince two-thirds of the chamber to remove a federal official in a highly charged political matter.

Trump isn’t trying to get the judge removed from the bench. He probably isn’t seriously trying to get him impeached, knowing how fragile the House Republican majority is. What he’s trying to do is galvanize support among the American right for the idea of disobeying court rulings.

The Supreme Court is an anomalous institution insofar as it’s popular with the president’s party and unpopular with the other, fallout from the end of Roe v. Wade in 2022 that made the court a lib-owning hero to Republicans and a woman-hating villain to Democrats. And that’s become a problem for Trump, ironically, despite the fact that he appointed three of the justices responsible for aborting Roe. Not only is the judiciary now in a position to thwart his own executive power grabs, it has a reservoir of goodwill among his own voters to draw from in doing so.

Trump needs to reduce the level of that reservoir.

He has various tricks for moving the Overton window among his base, like planting ideas in their heads as “jokes” that bear fruit later as semiserious proposals. But his old standby is hair-on-fire accusations about supposedly outlandish behavior by some enemy, knowing how eager his fans are to mirror his own level of outrage. That’s how he got the right to freak out about the FBI’s search of Mar-a-Lago, how he got them to freak out about Volodymyr Zelensky’s “disrespect” in the Oval Office, and how he’s going to get them to freak out now about the very idea of judicial restraints on executive power. Not only is Boasberg corrupt, he’s so corrupt that he must be impeached.

The more Trump’s populist base gets suckered by him and water carriers like Mike Davis into believing that some grave legal irregularity occurred in this case, the more grassroots pressure will mount on congressional Republicans to start making rhetorical concessions about the evil judiciary. The House majority won’t impeach Boasberg (I think), but Republicans will feel obliged to mollify MAGA voters by conceding that judicial power has gone “too far.” In fact, it’s already happening.

One ambitious House Republican eager to chap his lips on Trump’s rear even circulated articles of impeachment for Boasberg on Tuesday afternoon, accusing him of an “abuse of power” by refusing to defer to the president as the Alien Enemies Act supposedly requires him to do. Which is stupid: The questions are whether Trump can lawfully rely on the act in the first place, since it’s supposed to apply only during war or “invasion,” and whether the hundreds of detainees he packed off to El Salvador actually are members of the gang he’s targeting by invoking the Act.

But that’s beside the point. All the president wants out of this episode is a party that’s more likely to back him up when he eventually ignores a Supreme Court ruling, as his vice president has been urging him to do for years, and a Two Minutes Hate about Boasberg gets him closer to that goal. He might think twice about telling John Roberts “no” if 65 percent of the public opposes him doing so, but if he can get that number down to 55 percent by persuading the right to regard adverse judicial rulings as some sort of treasonous “deep state” plot? Sure, he’ll risk that.

The fact that Boasberg won’t end up being impeached and removed arguably even plays into Trump’s hands, as the president will cite it as a reason for why he has no choice but to start disobeying court orders. “If corrupt judges can’t be removed because corrupt Senate Democrats won’t vote to remove them,” I could see him saying, “the only way to stop the corruption is for me to ignore them!”

The point I made earlier about placing the judiciary in a defensive crouch cuts both ways, too. Now that John Roberts has sided with Boasberg, the White House will seek to discredit future Supreme Court rulings against Trump by claiming they were motivated by a desire for judicial revenge on the president rather than on the merits. All the more reason for him to defy those rulings, no?

On the other hand, if the court ends up ruling in Trump’s favor in important cases, it’s the left that’ll be primed to suspect illegitimate motives. Calling for Judge Boasberg’s impeachment really put the fear of God into Roberts and Barrett, huh? That’s the destructive authoritarian genius of populism: The further elite institutions get sucked into politics via allegations of bias and corruption, the more inescapable it is that both sides will interpret their actions through a political lens.

And once everyone in government is universally under suspicion of being a partisan hack driven by illegitimate motives, tearing down the constitutional order and starting over begins to seem like not such a crazy idea.

Fascism moves fast, I said earlier, but that’s true only in the way that bankruptcy is “fast.” In Hemingway’s famous words, it happens gradually, then suddenly. Trump has spent just shy of 10 years convincing the right that the only entity in politics whom they can truly trust with power is him, and now at last he’s about to find out just how many of us he persuaded. The “gradually” phase is over. We’re in the “suddenly” phase now.