The Situation: A Bove the Law II

The Situation on Thursday ruminated on the confirmation of Emil Bove III to the Third Circuit Court of Appeals.

Something more than rumination is warranted. That something is impeachment.

The House of Representatives won’t do that today. It won’t do it tomorrow. But it may be able to do it some day. And it should—as soon as it can.

It should do it as a rebuke to Bove himself, as a rebuke to President Trump for nominating Bove, and as a rebuke to Senate Republicans for confirming him. 

What remedies does the system have when the Senate simply shrugs at its duty to evaluate a nominee to a lifetime appointment and confirms a man manifestly unfit for office without so much as bothering to hear from multiple witnesses to his alleged misconduct?

In the case of executive branch officials, the answer is uncomfortable but plausible: You have a certain faith that they will go out with their boss, and you hope and pray that the damage they will do in the meantime will be limited. This approach tends to work pretty well, though characters like Pete Hegseth and Kash Patel make one worry a lot about the meantime.

But judgeships are different. Waiting out a 44-year-old appellate court judge’s lifetime appointment is a very long wait. Bove doesn’t go out with the incumbent administration, after all. And one cannot—as with Patel—get rid of him merely by violating the same norm, that of the supposed ten-year term in office of the FBI director, the violation of which got him appointed in the first place. Bove will leave when he chooses, or when he dies.

And until then, he will vote—and his vote will count—and he will write opinions. And these opinions, when they represent a majority of his court, will function as binding precedent on lower courts in New Jersey, Pennsylvania, and Delaware. And lawyers and other judges and writers will have to cite his work, as though his views count as legitimate authority—because they will count as legitimate authority. And people will have to address him with respect, as though he weren’t someone everyone knows instructed Justice Department lawyers that they might have to be prepared to tell judges more honorable than himself “fuck you” and told the Senate that he did not recall saying this. And if it sounds like this burns me up a bit, that’s because it does.

There is no good remedy for this problem. One doesn’t get to treat Bove as less of a judge just because the public record is clear that he is a bad actor who procured his confirmation by dint of senatorial cowardice and his own prevarications under oath.

That said, if only to force individual Republican senators to spend time defending their votes, the House of Representatives should certainly impeach Judge Bove as soon as it has a majority capable of doing so.

The Senate voted by a one-vote margin to confirm Bove, but the impeachment power lies in the House, not the Senate, and the House of Representatives thus has not yet had an occasion to weigh in on Bove’s conduct.

As a general matter, I am conservative about judicial impeachments. I categorically oppose impeaching judges because some House majority disapproves of the substance of their rulings. Impeachments should never be used as a means of leverage on the courts on substantive matters.

What’s more, one has to be realistic about the effects here: impeaching Bove wouldn’t be designed actually to effectuate his removal from office, which would require a Senate super-majority impossible to imagine in this polarized environment.

But a Bove impeachment could make an important statement. The point here has nothing to do with any ruling Bove might some day make as a judge. It has to do, rather, with highlighting the Senate’s gross dereliction of duty in letting him become a judge in the first place—and in exposing the record of misconduct that should have prevented his confirmation.

An impeachment investigation would allow Congress to hear under oath from the whistleblowers about whose claims concerning Bove the Senate proved so remarkably uncurious. Did he really say, for example, that those deportation flights under the Alien Enemies Act carrying Venezuelans to a dungeon in El Salvador had to take off no matter what a court might do? Did he really say that the Justice Department should be prepared to tell a court to fuck off? 

An impeachment investigation would also be a great vehicle to hear from those Justice Department officials—current and former—whom Bove embroiled in his machinations to drop the corruption case against New York Mayor Eric Adams. Again, the Senate here seemed, well, unconcerned at what career and political appointees in the Southern District of New York regarded as a quid pro quo deal in which the Justice Department would drop its case against the mayor in exchange for policy assistance on immigration matters. And it seemed unconcerned as well about the blood-letting that matter produced among career officials both at the Southern District and at Main Justice.

Nor did the Senate seem concerned about Bove’s treatment of the FBI and Justice Department officials who had worked on Jan. 6-related matters: his firing of people for pure reasons of political retaliation and his attempts to get data on which FBI agents had worked Jan. 6-related matters. 

The House, however, might legitimately decide that while the Senate snored its way through these matters, it is very interested in these questions. It might choose to investigate these—and other—matters regarding Bove’s conduct during his brief rampage through the Justice Department. And unlike the Senate, the House might decide that some or all of these behaviors are utterly unbefitting a federal court of appeals judge. And if it were to make such a judgment, and if it were to develop a compelling record of sworn testimony about Judge Bove’s conduct, the House—having, as it does, the “sole power” of impeachment—could certainly send articles of impeachment against Bove to their Senate colleagues.

This would not, without 67 senators voting to convict, drive Bove from office, but it would require Senate Republicans to defend their votes to install the man in the first place. The Senate cannot just ignore an impeachment. Even a completely frivolous impeachment, like that of former Homeland Security Secretary Alejandro Mayorkas, requires a majority vote to dismiss.

The case against Bove, unlike the record in the Mayorkas matter, would not be frivolous. It would be meaty. And remember that the Senate only confirmed Bove by a one vote margin. So it’s possible that it would not be easily dismissed. A Bove impeachment just might require an actual Senate trial.

What it would certainly do is leave a stain. Trump loathes his two impeachments—and rightly so. They are a reminder for history of the rot that underlies his presidency. Just the other day, the Smithsonian American History museum removed reference to this impeachments from its presidency exhibit—it says temporarily.

This is what I want for Bove: A constant fight for his judgeship's legitimacy, one that will gnaw at him every day.

There’s nothing one can do now about his being a judge. But one can hope that the House of Representatives might some day muster the self-respect to append an asterisk to his service.