The National Law Journal has an interview today with Professor Michael Gerhardt, author of The Federal Impeachment Process, regarding the possibility of an impeachment of Judge Jay Bybee. Gerhardt’s responses are appropriately tentative, given the uncharted territory involved:
NLJ: May a judge be impeached for conduct committed before becoming a judge?
MG: You have to judge every case on its own facts. The question we have to look at is to what extent this might fit into our understanding of the impeachment process. With President Clinton, one part involved his alleged misconduct related to something he had done before he came into the presidency and another charge was lying under oath about conduct while he was president. The questions can get pretty complicated.
I think it’s actually a significant question in constitutional law — the extent to which someone may be held accountable for something they did before they got into the office they now hold. John Quincy Adams declared when he was in the House that he thought he could still be held accountable for things he had done as president.
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I think that language in the Constitution could be read credibly here to support an inquiry into Judge Byee’s conduct or judgment while he was in the Justice Department. There may be enough support in original meaning or historical practice to suggest the House has legitimate authority to inquire at least into whether it has authority to impeach somebody under circumstances like this.