It is now the fashion to call for impeachment of 9th Circuit Judge Jay Bybee for his role in creating the so-called torture memos back in 2002, when he was head of the Justice Department's Office of Legal Counsel. (Yale law professor Bruce Ackerman argued for impeachment back in January in Slate.) I am entirely in sympathy with the sentiment. Bybee and the others who authored or approved those documents proved themselves legally incompetent and morally bankrupt. They should not be judges or members of the bar. They may also be suitable targets of a war crimes investigation.
That said, it is not clear that Congress can constitutionally impeach Judge Bybee for those odious memos. It is even less clear that it should.
The main constitutional problem arises from the fact that Congress would be removing Bybee from the bench for conduct that occurred the year before he became a judge in March 2003 and while he occupied a different office in a different branch of government. The Constitution contains two provisions bearing directly on the removal of federal judges. Article II says that "the President, the Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." Article III says, "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior."
Everyone agrees that judges are "civil officers" subject to impeachment. The question is whether the impeachment standard in Article II is altered by Article III's provision that judges remain in office "during good behavior." The good-behavior clause is generally understood to permit removal of judges for less serious conduct than would be required for presidents and other executive branch officers. Judges have been impeached for all sorts of rather pedestrian misbehavior, from drunkenness and blasphemy to habitual malperformance and bringing the court into scandal and disrepute. However, the injunction that judges "shall hold their offices during good behavior" plainly implies that no reason other than bad behavior "during" the judge's occupancy of the bench will constitutionally suffice to remove him.
Even setting aside Article III and assuming that the only question in impeaching any official, judicial or executive, is whether he has committed "high crimes and misdemeanors," impeaching Judge Bybee for his conduct while head of the OLC is still deeply questionable. If the Clinton impeachment imbroglio settled anything, it is that, except in the most extraordinary cases, impeachments should not be inquiries into moral fitness for office but should turn on whether the officeholder abused the office from which Congress seeks to remove him. It is no accident that, of the 15 federal officials impeached in the history of the United States—11 judges, two presidents, one senator, and a secretary of war—every single one was impeached for official conduct occurring while he held the office from which he was ousted.
Of course, merely because no one has been impeached in 230 years for bad deeds committed before taking office doesn't mean that it cannot constitutionally be done. Common sense urges that some prior conduct discovered only after an official assumed his duties might be so egregious that impeachment would be warranted. Surely the country should be able to remove a newly minted judge who turns out to have murdered her children or to have sold atomic secrets to foreign spies on the eve of confirmation?
But I am not sure. For judges, the "during good behavior" clause seems pretty clear to me. After all, the point of life tenure is to assure that, once on the bench, judges are effectively immune from political attack so long as they do their jobs with some minimum degree of professional competence. We surely do not want judges to be impeached whenever a new congressional majority decides that the political and managerial choices they made, back when they were part of a former presidential administration, were in fact impeachable political crimes. That way lies the destruction of an independent judiciary. The only constitutional remedy for an extreme case of prior misconduct may be criminal conviction and imprisonment rather than impeachment. (A federal judge convicted of a felony remains a federal judge unless and until impeached. He's still entitled to salary and benefits. If he serves his time without being impeached, back to the bench he goes. The practical remedy for such an extraordinary case is that the chief judge of his district or circuit just won't assign him any cases. But technically, he's still a judge.)
Still, Bybee's torture memos were so reprehensible that I would give much to see him removed from office. And so I would support his impeachment if, during his confirmation hearings, he had lied about the memos. In that case, he would have obtained his office by fraud, and "during good behavior" is surely elastic enough to embrace the confirmation process. But Bybee didn't lie. The judiciary committee requested the OLC memos he wrote and approved. Bybee asserted executive privilege and refused to answer questions about his national security role in the Bush administration, but the Senate declined either to challenge that claim in court or withhold approval of his nomination pending satisfactory answers.
In his Slate piece, Ackerman implied that Bybee should be impeached because the privilege claim was unjustified. But if making overbroad claims of executive privilege were in itself a high crime or misdemeanor, every president since Nixon should have been impeached and most of their lawyers barred from ever holding federal office.
Finally, even if the Constitution could be stretched to accommodate Bybee's impeachment, Congress has, I think, forfeited its moral authority to proceed. Ackerman asserts that Bybee should be impeached for concealing the torture memos because, had the Senate "known the truth, it would have rejected him."
But by March 2003, the administration's blessing of abusive interrogations was not an executive branch secret. In 2002, the White House briefed Sens. Bob Graham and Richard Shelby and Reps. Porter Goss and Nancy Pelosi, the chairs and ranking members of the Senate and House intelligence committees. The briefings included the use of water-boarding and the fact that the Justice Department approved it. Yet when Bybee was nominated and refused to answer questions about his national security role, these four members of Congress with special knowledge said nothing.
Nor did Congress express concern about abusive interrogation in the context of other appointments. In June 2004, news broke of the existence, contents, authorship, and effect on official policy of the 2002 torture memos. But in January 2005, Alberto Gonzales, who as White House counsel requested the 2002 torture memos and collaborated on their content, was nominated to be attorney general. The Senate confirmed him 60-36.
Torturing prisoners or providing specious legal cover for doing so is a crime. But the moral, legal, and political responsibility for the American policy of torture in the Bush years is broadly shared by all those in the executive branch who urged or authorized torture, and those in Congress who winked at horrors they could and should have stopped. If the torture memos are an impeachable offense today, they were an impeachable offense when first publicly disclosed in 2004. If any impeaching was to be done, it should have been done during the long years from 2004-08, while those responsible for torture still occupied the offices that gave the power to order it.
If ordering the forms of abuse detailed in the torture memos was a crime, then let's have criminal trials of everybody directly involved, from Bybee to Bush. If prosecution is too traumatic, then let's have a truth commission. But let's reserve impeachment for its proper constitutional function of protecting the republic from those who are abusing the offices they occupy.