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Should the Judge Who Wrote the Torture Memos Be Impeached?
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.
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