04.21.09

Should the Judge Who Wrote the Torture Memos Be Impeached?

Former Nixon White House counsel John W. Dean, who knows a thing or two about impeachment, weighs the evidence for tossing out Jay Bybee, who wrote some of the most revolting torture memos and was later appointed by George Bush to be federal judge. Surprisingly, he finds that the case for impeachment isn’t all The New York Times thinks it’s cracked up to be.

Former Nixon White House counsel John W. Dean, who knows a thing or two about impeachment, weighs the evidence for tossing out Jay Bybee, who wrote some of the most revolting torture memos and was later appointed by George W. Bush to be a federal judge. Surprisingly, he finds that the case for impeachment isn’t all The New York Times thinks it’s cracked up to be.

After reading the latest legal opinion justifying what we once called torture—memos written by former Assistant Attorney General Jay S. Bybee, now a federal judge on the U.S. Court of Appeals for the Ninth Circuit—The New York Times called for his impeachment: “These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and respect for the Constitution. Congress should impeach him.” But there is a fundamental problem doing so.

It appears that only if Judge Bybee were found guilty of a war crime is it likely he could be impeached.

The Times editorial focuses on all four of the “sickening” new torture memos that have been released. When thinking about Judge Bybee, and his latest newly released memorandum of August 1, 2002, this one addressed to John Rizzo, the acting general counsel of the CIA, I recalled that the same day Bybee also sent an equally ugly piece of work to White House counsel Alberto Gonzales, which was released earlier, in 2004. Both Bybee memos were later repudiated and retracted by the Department of Justice. During Gonzales’ confirmation hearings to be Bush’s second attorney general, he was quizzed about Bybee’s work, which provoked me to first wonder how Bybee, whose conduct has been called a war crime, remained on the federal bench with life tenure.

It has been suggested that Bybee’s legalizing torture is evidence of a “common plan” (read: conspiracy) to engage in a war crime, which can be a war crime itself. But Bybee’s legal opinions can also be viewed as just that: opinions. Certainly, at this time Bybee has not been charged with nor convicted of war crimes. Rather, as The Times describes it, based on his memos, he is “unfit” for the federal judiciary. But has Judge Bybee committed an impeachable offense by signing off on these memos? Has he committed a high crime or misdemeanor?

The House of Representatives may impeach federal judges for “treason, bribery, or high crimes or misdemeanors.” With judges this standard must be reconciled with their life tenure that provides they “shall hold their offices during good behavior.” Some constitutional scholars read this good-behavior language as mere 18th-century wording for the proposition that judges hold their post for life unless impeached, because an impeachable offense would not be good behavior. Others read it to say judges can only be removed by impeachment, not mere misbehavior.

Strikingly, none of the existing precedents for judicial impeachment fit Judge Bybee’s situation. For example, in 1986 Congress impeached the first judge in 50 years: Judge Harry Claiborne of Nevada, who had been convicted for filing false income-tax returns and then refused to step down from the federal bench. Congress removed him. Next Congress impeached and convicted Federal District Court Judge Alcee L. Hastings of Miami, who had been acquitted of bribery charges by a federal jury five years earlier but whose impeachment was recommended by a panel of his fellow judges. (After being removed from the federal bench he was later elected to Congress.) And finally, Federal District Court Judge Walter L. Nixon of Mississippi, who was serving a five-year federal-prison sentence for perjury and hoped to receive his full salary for life, refused to resign from the bench even when in prison. Congress stopped his paychecks. Again, Judge Bybee has not been formally charged or convicted of anything.

No federal judge has ever been removed from office based on his opinions from the bench. The precedent to consider criteria other than judicial decisions as the basis for a high crime or misdemeanor was established with the effort to remove U.S. Supreme Court Justice Samuel Chase, who was impeached by the House and found not guilty by the Senate in 1805. It will be recalled that as Minority Leader, Gerald Ford tried to remove Justice William O. Douglas largely over his opinions and the House refused to take up the matter. Ford famously complained that an impeachable offense is whatever the majority of the House of Representatives declared it to be, because impeachment is a political process. In short, if Judge Bybee had written opinions comparable to those he issued as an assistant attorney general from the federal bench, while Congress would no doubt have found them offensive, they would not be a basis for impeachment.

Because all we know about Judge Bybee’s activities as an assistant attorney general is that he signed off on the offensive torture opinions (apparently written by John Yoo), it is not likely Congress would be inclined to test the power of impeachment against a person who has resigned from the office where the impeachable offense was committed. Theoretically, the House could impeach and the Senate could convict Bybee for his behavior as an assistant attorney general. Although this has never been done, many leading commentators agree that Congress has the power to follow the practice of the British parliament, which did impeach those who had left office at the time we adopted the impeachment provisions of our Constitution.

In short, a simple majority of the House could impeach Bybee for his activities as an assistant attorney general, a supermajority of two-thirds of the Senate could then convict him, and a simple majority of the Senate could then vote to bar him as an impeached and convicted office holder from further service in the federal government, which would remove a convicted former assistant attorney general Bybee from serving as a federal judge. But again, this would require Congress to reverse its precedent established during the proceeding against Justice Chase of impeaching and removing an office holder for his or her official opinions.

It appears that only if Judge Bybee were found guilty of a war crime is it likely he could be impeached and this would require that he joined his former deputy John Yoo, and others, in some sort of collusive action to enable the White House and CIA to engage in torture. While it is impossible to disagree with The Times’ negative assessment of Judge Bybee’s judicial temperament, and while it is clear that had the Senate known of these memos at the time of his confirmation he would not be on the federal bench today, it is going to take much more than his demented thinking as evidenced by his torture memos to remove him from the safe harbor where George W. Bush placed him.

John W. Dean, former Nixon White House counsel, has written 10 books, including Broken Government: How Republican Rule Destroyed the Legislative, Executive and Judicial Branches, and is working on his next.