Liberals push Bybee impeachment
By: Josh Gerstein
April 28, 2009 04:24 AM EST
Liberal activists are pressing for the impeachment of federal Judge Jay Bybee over the Bush administration’s “torture memos” in part because there is virtually nothing that President Barack Obama, congressional Republicans or conservative Senate Democrats can do to stop the process from getting under way.
Obama and key members of Congress have weighed in against a “truth commission,” an independent prosecutor and other attempts at war-on-terror accountability. But impeachment is not so easily stymied, especially in its early stages, analysts said.
“If the House votes for it, there’s no way the Senate can avoid it,” a former Senate parliamentarian, Robert Dove, said Monday. “I can’t think of any way of just not acting on it. I assure you, if the Senate could have not acted on the Clinton impeachment, they would not have acted on it…..If the House impeaches, we will have a trial.”
One of the earliest proponents of Bybee’s impeachment, Yale Law School professor Bruce Ackerman, noted in an interview that Obama — or any president — has no official say in the process. “Constitutionally, it is entirely independent of, and should be independent of, the executive branch,” Ackerman said.
Bybee is in the firing line because, while the top lawyer at the Justice Department’s Office of Legal Counsel in August 2002, he approved and signed a legal opinion concluding that so-called enhanced interrogation techniques, including water-boarding, did not meet the definition of torture under federal law.
Two House Democrats who have been outspoken critics of the Bush-era policies, Judiciary Committee Chairman John Conyers of Michigan and committee member Jerry Nadler of New York, are expected to write to Attorney General Eric Holder Tuesday, formally requesting a special prosecutor to investigate whether crimes were committed in connection with prisoner interrogations.
Holder is likely to reject that request – his boss, the president, has indicated he doesn’t see the need for such a prosecutor. Nadler already has said he’d push for impeachment proceedings against Bybee. Other Democratic House members and even some senators have said they are open to the idea, which was urged by The New York Times.
Conyers hasn’t yet said whether he’d back that move, but has promised hearings in the near future on the legal memos and the people who drafted them, telling The Huffington Post last week, “We’re coming after these guys.”
On Sunday, John Podesta, the head of the left-leaning Center for American Progress think tank and Obama’s transition chief, joined those calling for Bybee’s impeachment.
“He’s acting and listening to cases and making judgments of others, and we know that he authorized things that were illegal under U.S. law and violated the U.S. obligations under international treaties,” Podesta told CNN. “He doesn't have the moral or legal authority to continue to do that. And I think a simple matter would be to remove him from office.”
The White House showed little interest in entering the impeachment fray Monday. Press Secretary Robert Gibbs referred reporters to an answer he gave last week, in which he said simply, “I’d leave some members of Congress up to those opinions.”
Republicans are pushing back. The Judiciary Committee’s ranking member, Rep. Lamar Smith (R-Texas), warned that Democratic leaders also would also come under scrutiny. He said Podesta should also pursue House Speaker Nancy Pelosi over her lack of action following classified briefings she received on the interrogation techniques.
“If he wants to be absolutely fair, he ought to ask the speaker to resign as well,” Smith told POLITICO on Monday. “Clearly, any attorney should be able to offer their legal advice and give their best counsel to a president and to an administration without fear of someone trying to reach back and impeach them when they get to a higher office.”
Smith also said that Bybee’s opinion that the methods did not constitute torture was legally sound. “I don’t disagree with him,” the lawmaker said.
Pelosi has said she was never told the harsh techniques were used and that secrecy rules prevented her speaking out about them in any event. As for Bybee, the speaker told reporters last week that she considers impeachment to be “a serious, serious matter” and that she needed more facts before offering an opinion about applying it to Bybee, a 9th Circuit Appeals Court judge.
Bybee did not respond to an interview request left Monday at his chambers in Las Vegas.
In a letter to Conyers Sunday, Podesta complained that Bybee “stonewalled” the Senate during his confirmation hearings and “concealed relevant aspects of his legal views and professional conduct.”
But Senate Democrats might not be so eager to revisit the issue. When Bybee came before the Judiciary Committee in February 2003, it was on the same day that then-Secretary of State Colin Powell was briefing the U.N. Security Council on evidence of weapons of mass destruction in Iraq, and most Senators were preoccupied with Powell’s appearance. In fact, Democrats were largely absent from the Bybee hearing and never questioned him face-to-face.
One senator who did show up – Harry Reid (D-Nevada), now the Senate Majority Leader -- introduced his fellow Nevadan and urged “without any qualification” that Bybee be confirmed “as quickly as possible.”
“You, Mr. Bybee, have had a pretty nice day,” Sen. Orrin Hatch (R-Utah) said as he wrapped up the hearing.
Five Democratic Senators submitted written questions for Bybee. In response to many of them, he wrote back, “As an attorney at the Department of Justice, I am obliged to keep confidential the legal advice that I provide to others in the Executive Branch.”
Bybee was confirmed the next month on a 74-19 vote. Reid and the current chairman of the Senate Judiciary Committee, Patrick Leahy (D-Vt.), were among those voting in his favor. Then-senator Hillary Clinton voted against Bybee, as did California Democratic senators Barbara Boxer and Dianne Feinstein.
“If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed,” Leahy said last week.
A former lawyer in President George W. Bush’s White House counsel’s office, Brad Berenson, said it would be improper to punish Bybee for opinions he wrote before taking the bench, just as it would be to punish him for rulings he made after being confirmed. “It’s not Jay Bybee’s fault that these opinions were not available to the Senate,” Berenson said. “They were highly classified. He could not have spoken about them at the time, even if he wanted to.”
Berenson also warned that Democrats were overplaying their hand. “Democrats would do well to remember how the country’s last set of impeachment hearings turned out for the party that sponsored them,” he said – a reference to the public backlash against the Republicans’ decision to impeach President Bill Clinton.
The call for Bybee’s impeachment could rekindle a long-running debate over the meaning of “high crimes and misdemeanors,” and whether things a nominee did before reaching the bench can be grounds for removing him.
According to the Constitution, “judges…shall hold their office during good behaviour.” Dove said it would be unusual and probably unprecedented to impeach someone for acts taken before assuming office. “I don’t know of any federal judge impeached for anything other than bribery or that kind of thing,” Dove said.
However, the former parliamentarian said he doesn’t think “high crimes and misdemeanors” is limited to actual crimes. “There are probably things that do not fall in the criminal code that might be considered an impeachable offense,” Dove said. He noted that allies of President Thomas Jefferson tried to remove Supreme Court Justice Samuel Chase for political bias in 1805, but the attempt was rejected by the Senate.
Ackerman pointed to the 1804 removal of Judge John Pickering, who was considered drunk and insane, as a sign that grounds for impeachment can be broad. “This is an early case in which the Senate recognized we’re not only talking about crime here,” the professor said.
If Bybee were impeached by the House, the Senate would likely refer the matter to a small group of members who would listen to testimony and propose a verdict. “What the Senate has done since the 1930s in every impeachment trial except President Clinton’s is to use a 12-member committee,” Dove said. The full Senate would then vote on whether to approve the panel’s report.
Ackerman said Bybee’s presence on the bench is a product of a transition in the late 1970s from appeals court judges who were effectively selected by each state’s senators, to a system where nominees were put forward on the initiative of the White House. He said this gave the president the incentive to appoint “super-loyalist” candidates from inside the administration and to withhold information about potential pitfalls in a nominee’s resume.
“The Bybee problem is a problem of the future,” the professor said. “It’s going to come and bite us again and again.”