The mystery of the disappearing paragraph

Did Coburn’s top staffer just make a nearly criminal attempt to intimidate federal judges?

The print version, and early internet versions, of this New York Times story record a quite extraordinary threat by a senior Senate staffer (albeit of a junior senator) against Federal judges. That threat has been omitted from the current on-line edition. The difference between the two stories is whether Tom Coburn’s chief of staff called for the mass impeachment of federal judges who make rulings he dislikes, or whether he called for them to be imprisoned as well.

Here’s the original vesion:

“I am in favor of impeachment,” Michael Schwartz, chief of staff to Senator Tom Coburn, Republican of Oklahoma, said in a panel discussion on abortion, suggesting “mass impeachment” might be needed.

Mr. Schwartz later singled out some of the federal judges who ruled in the Schiavo case as the first targets and said, “I hope they serve long sentences.”

The version now on line omits the second paragraph entirely.

Can anyone tell me how the difference came about? Is there a transcript of the conference available?

The threat of mass impeachment, and other attempts to interfere with judicial independence, seem to me to represent a dangerous Constitutional doctrine that is also likely to be massively unpopular with the voters, including many conservative voters old-fashioned enough to believe in a republic ruled by law. But it’s not something that should be beyond the bounds of debate.

By contrast, the threat to imprison judges for making rulings the speaker deems “incorrect” is at best on the borderline of a criminal attempt to intimidate the judges, if not actually across that border. If Schwartz said what he is quoted as saying, and if Coburn fails to dismiss him, Coburn ought to be subjected to a resolution of censure.

Update: the mystery half-solved

A reader writes:

A video recording of the conference on the judiciary is available on


At about 2:39:40, Mr. Schwartz does indeed say that he hopes two of the judges involved in the Schiavo case — District Judge Whittemore and Judge Birch of the Eleventh Circuit — will be impeached and that he hopes they serve long sentences. It’s a crazy thing to say, given Art. I, sec. 3, cl. 7 of the Constitution: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” So there are no “sentences” at all for impeachment convictions, let alone long ones. That clause goes on to say “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” But it’s beyond me what criminal law Mr. Schwartz could think the judges violated. Given the rhetoric about “judicial murder” we heard during l’affaire Schiavo, maybe he thinks they’re guilty of murder.

Right then. So the information in the missing paragraph is accurate. Obvious follow-up question: Why did it disappear?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: