EXECUTIVE WATCH

The recent release of additional torture memos has spawned calls for the impeachment of Judge Jay Bybee, who signed several of the most egregious of those memos.  The case for impeachment has been laid out ably by Prof. Bruce Ackerman (here) and by John Podesta of the Center for American Progress (here).  The argument has several grounds.  First, Jay Bybee would never have been confirmed as a judge on the Ninth Circuit had the Senate been aware of the memos’ existence.  Second, the memos deviate from professional standards so egregiously that the public cannot be expected to have confidence in the integrity and competence of their author.

These are powerful arguments.  The torture memos have been sharply condemned by Republican officials, such as Senator Lindsey Graham and former Rep. Bob Barr, and even by former Bush Administration officials, such as Bybee’s successor at OLC Jack Goldsmith.  When the first torture memo was leaked the White House immediately repudiated it and in the waning days of the Administration the de facto head of OLC Steven Bradbury wrote a memo to the file condemning it and a number of additional legal opinions of the Bybee era at OLC.  This broad-based record of condemnation confirms what any fair reading of the torture memo would conclude:  the memo that Jay Bybee signed is far outside the standards of the legal profession.  Given the braod condemnation of the torture memo, it is nearly impossible to imagine how Bybee could have been confirmed to his judgeship had the memo’s existence been disclosed to the Senate.

Nevertheless, I do not believe that this provides sufficient grounds for impeachment.  The Constitution sets forth the grounds for which an officer may be impeached.  They are “treason, bribery, or other high crimes or misdemeanors.”  I imagine that it will be tempting for Bybee’s defenders to claim that the torture memo cannot be understood to fall within this phrase because the terms the Constitution employs cover only actual crimes.  This would be formally similar to the defense offered by President Clinton that the constitutional terms cover only “official” conduct.  Clinton’s defense, as I argued at the time (here), was not persuasive and Bybee’s defense along these lines should fail for essentially the same reason.  Congress’s impeachment power is not limited primarily by legal definitions.  Rather, it is left open to Congress’s political judgment and is constrained by onerous procedural requirements (particularly the requirement of a super-majority vote to convict). 

The lesson of the Clinton impeachment is that impeachment is a fundamentally political tool that can be effectively wielded only when there is extraordinary bipartisan agreement.  Those advocating President Clinton’s impeachment regarded his actions to have been illegal and a threat to the integrity of his office and to the rule of law.  Yet the Republican advocates of President Clinton’s impeachment were never able to convince Democrats of their claim.  Instead, their insistence on forcing through articles of impeachment on a party-line vote and without allowing consideration of alternatives (such as censure) convinced most observers that Republicans were seeking partisan retribution rather than to protect the rule of law.  It is useful to contrast the Clinton impeachment with the proceedings against President Richard Nixon, where the case for impeachment was made in painstaking fashion that was designed to build a bipartisan coalition. 

At the moment, there is no bipartisan support for impeaching Jay Bybee.  To build such support, advocates of impeachment will have to go beyond the current record.  As it stands, Bybee’s legal memos are indefensible from the standpoint of professional standards.  There is strong bipartisan support for this proposition.  Whether these memos undermine the integrity of the federal judiciary or of Bybee’s own service on the Ninth Circuit is a separate question, and impeachment would require taking this further step.  As of now, there does not appear to be bi-partisan support for this further conclusion.  It is conceivable that those advocating Bybee’s impeachment will be able to convince Republicans that the torture memos are in fact so offensive to the rule of law as to make his presence on the bench an intolerable affront to the integrity of the federal judiciary.  But, I strongly doubt it.  As long as there is not substantial bi-partisan support for this conclusion, moving to impeach Jay Bybee will only serve to cast advocates of impeachment as retributive partisans.  Torture is not, and should not be, a partisan issue.  It would be a shame if, in the name of impeaching torture, we ended up undermining the universal agreement that torture is unacceptable.