University of Pittsburgh

Arthur Hellman on Judge’s Participation in Google Wiretap Appeal

Publish Date/Time: 
September 4, 2013

The Ninth Circuit Court of Appeals heard oral argument this summer in an appeal by Google, Inc., challenging a ruling that Google may have broken federal wiretap laws. One of the judges on the appellate panel is Jay S. Bybee, who as a lawyer in the George W. Bush Administration drafted legal justification for secret Government wiretap activities. The Daily Journal (San Francisco) asked Pitt Law Professor Arthur D. Hellman, an authority on judicial ethics, whether this posed a conflict of interest.

Hellman said there was probably no conflict. He quoted the provision in the Judicial Code that addresses participation in judicial decisions by former Government officials and noted that it is “narrow.” He added, “By implication, it would allow [Bybee’s] participation here.” Hellman continued: “That said, if the Google appeal involves the constitutionality or interpretation of statutory provisions that Judge Bybee helped to draft during his years at [the Office of Legal Counsel], I think that the general disqualification provision [in] section 455 (a) might suggest recusal. But if he just worked on legislation involving similar subject matter, I don’t think that would create a conflict.”

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