I disagree. And I think the judges who leaked should be impeached.
The paragraph that will be stunning to litigators and honorable federal judges (who, fortunately, constitute the vast majority of the bench) is the following:The above comment from the judges does not identify any particular case, not does it divulge any "alleged wrong." All it shows is a concern that some wiretapping may be found unconstitutional. The judges are expressing a legal principle, and the ramifications if the legal principle is not adhered to.
Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained. Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense.
First of all, judges speaking to the press regarding matters that may end up in litigation is always a major impropriety, regardless of what kind of matters are involved.
I'm not sure how McCarthy expects this to be construed. Is it a violation of ethics for a judge to discuss the contents of Gunther's "Constitutional Law," or the principles of Blackstone? After all, these expositions describe matters that have been in litigation in the past, and will be litigated in the future; at least in the general sense that there will always be balance of powers battles.
The boundaries of FISA and the boundaries between FISA and the Constitution (4th amendment, AUMF, etc.) can be discussed without impinging on the specific fact pattern in a pending case.
To find federal FISA court judges leaking to the Washington Post about an upcoming closed meeting with administration officials about the highest classified matters of national security in the middle of a war is simply shocking.
If the leak is, as you agree with McCarthy "shocking," and even "should be impeached," then your recourse is through Congress. A simple majority in the House is enough, under the Constitution, to impeach the vile leakers.
I'll be on the sidelines, laughing at the silliness of impeaching a judge for pronouncing general concern about having a respectable trail that indicates adherence to the Constitution.
"We are impeaching these judges because they want to know whether warrants they signed were tainted by the NSA program, and they disclosed that the administration was going to meet with them and share details, in private, to assuage their concerns." Bwahahahahahaha.