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. (more…)