Yesterday, the United States Senate voted to impeach New Orleans-based Judge Thomas Porteous, “removing him from his lifetime seat on the federal bench and denying him his $174,000 annual pension.” The Senate approved four articles of impeachment against Porteous; Article Two accused him of “corruptly accepting meals, trips and other gifts from a bail bondsman while serving as a state judge.” Porteous’ legal counsel Jonathan Turley argued that Article Two was an unfair basis for impeaching Porteous because it pertained to conduct that occurred before he attained the federal judgeship. “In the history of this republic, no one has ever been removed from office on the basis of pre-federal conduct,” Turley said.
Nevertheless, the House (by a unanimous vote) and the Senate (by a 69-27 vote) convicted Porteous for corrupt conduct that preceded his confirmation as a federal judge. Why is this relevant? Because it lays the precedent for impeaching Jay Bybee, a federal judge on the 9th Circuit who famously penned the Bush administration’s torture memos when he headed the Justice Department’s Office of Legal Counsel.
Recall, in 2009, ThinkProgress launched a petition campaign urging our community to demand that Congress hold impeachment hearings against Bybee for authorizing torture techniques (including waterboarding, slamming a detainee’s head against a wall, and slapping a detainee’s face) that violated U.S. statutes and our international treaty obligations. CAP President and CEO John Podesta said Bybee “doesn’t have the moral or legal authority” to sit on the bench and should be removed from office.
At the time it confirmed Bybee, the Senate was not aware of his role in the torture memos. And Bybee refused to comment on the advice he had provided. As Sen. Patrick Leahy (D-VT) noted, “If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed.” In response to pressure from ThinkProgress and many other progressives, some experts argued that Bybee could not be held accountable for conduct that occurred before he was a judge:
A former lawyer in President George W. Bush’s White House counsel’s office, Brad Berenson, said it would be improper to punish Bybee for opinions he wrote before taking the bench, just as it would be to punish him for rulings he made after being confirmed. “It’s not Jay Bybee’s fault that these opinions were not available to the Senate,” Berenson said. “They were highly classified. He could not have spoken about them at the time, even if he wanted to.” […]
According to the Constitution, “judges…shall hold their office during good behaviour.” [Former Senate parliamentarian Robert] Dove said it would be unusual and probably unprecedented to impeach someone for acts taken before assuming office. “I don’t know of any federal judge impeached for anything other than bribery or that kind of thing,” Dove said.
Now, the House and Senate have gone as record as supporting the impeachment of a federal judge for prior conduct. Are they willing to demand accountability from a federal judge who has never been held responsible for authorizing illegal torture?