Impeachment Proceedings

Here’s a prediction. The fallout from the release of the OLC Memos will be an impeachment inquiry into Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, who signed the 2002 memo authorizing waterboarding and other enhanced interrogation techniques. I am not advocating Judge Bybee’s impeachment. I am merely saying that this where the political train is heading.

Put bluntly, there is no appetite in Washington to prosecute those involved in alleged torture. Every word and gesture from the President indicates that he’d like the problem to go away and leave him alone. Moreover, there is understandable unease about setting a precedent whereby officials from one Administration throw members of the prior one (of a different party) in jail over an issue that is partly based on policy disagreements. On the other hand, a decision not to prosecute those who formulated the interrogation regime leaves them unaccountable for their actions. What is the solution?

An impeachment investigation of Judge Bybee is a compromise that may prove irresistible. First, this would not involve criminal punishment. Impeachment convictions carry a maximum sentence of loss of office (in this case, removing Bybee from his judgeship) and a bar against serving in public office again. This does not sting as much as prison and hence might be a more acceptable sanction. Second, there is a substantial question about whether Bybee would have been confirmed to the Ninth Circuit had the Senate known about the memo when he was under consideration. Third, an impeachment inquiry is completely within the control of Congress (thus the President’s lukewarm views carry less weight) and can be as broad as the Legislature wants it to be. One problem with Senator Leahy’s idea of a “Truth Commission” is that this would be an ad-hoc body that would lack a clear constitutional mandate. No such issue arises with respect to an impeachment, which is a procedure specified in Article One.

Since Judge Bybee has never talked about his role at OLC, it is impossible to say whether he has committed an impeachable offense. (As a side note, one would think that the Judge will be getting a lot more recusal requests from now on. If you were representing a prisoner in California bringing an Eighth Amendment claim challenging the conditions of your confinement as “cruel and unusual”, how would you feel about having Judge Bybee on the panel?) Moreover, the downside of an impeachment proceeding is that it could well be an exercise in scapegoating, given that it would exclusively on one person and blame him for everything. But that sounds like something that Congress does.

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9 Responses

  1. Part of me would be interested in hearing how the actions of the OLC can be of such significance in this instance that they rise to the level of criminal enterprise but in a later instance that same OLC is irrelevant when Eric Holder doesn’t agree with them politically.

    While I think this would normally be a difficult set of articles of impeachment to draft, the Democrats are certainly fortunate to have such a respected expert as Alcee Hastings in their leadership to help guide them should they decide to go down this route.

  2. It is only “partly based on policy disagreements” insofar as the policy at issue here is one that is designed in a calculating if not wholly cynical fashion to ignore the applicable (i.e., rule of) domestic and international law. I voted for Obama but I think the administration is absolutely wrong on this issue (cf. posts by Heller at Opinio Juris, Crocker at Faculty Lounge, and Tamanaha and others at Balkinization).

  3. I meant to include Milanovic’s post at EJIL Talk! in my parenthetical list of references as well.

  4. peter says:

    Impeachment at the very least seems a good idea. Any lawyer who looks at the purported authority supporting those memos’ conclusions can draw only one inference: the authors were told what conclusion to reach and distort what authority they could find (which, even undistorted, was utterly off point) to fit that conclusion. Whatever lawyer obeyed those orders ought to be disbarred. Certainly that lawyer who became a judge should be impeached.

    Can tenure be revoked for a law professor who’s professional license should be taken away?

  5. just guessing says:

    my guess is that wiser heads within the current administration and moderate democrats in congress know that prosecutions will open up the issue to ferocious debate — and that it’s much easier to claim victory than to wrest it from a well defendant accused.

  6. John says:

    The interesting thing about your Eighth Amendment comment is that Bybee recently authored an opinion striking down a sentence as grossly disproportional under the Eighth Amendment, something that almost never happens.

    That said, I would certainly file a motion to recuse if I had a client in front of Bybee on a Eighth Amendment Bivens or 1983 claim.

  7. Piper says:

    Does that mean Congress should impeach Eric Holder for his role in sending fugitive slave Elian Gonzalez back to captivity?

  8. Jake says:

    Or the Congress might impeach the Secretary of State for obstruction of justice in the 1990s. The list goes on and on…….

  9. ParatrooperJJ says:

    The bar to public office is an additional punishment that must be specified.