Bench Memos

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“Torture” and the Impeachment Power


A reader sends along a link to an article on the Law 360 website (subscription required to read the full story), describing an effort among some legal academics and advocates to get the House of Representatives interested in impeaching Judge Jay Bybee of the Ninth Circuit.  Bybee was the head of the Office of Legal Counsel whose signature is on the earliest of those memos about interrogation that the Obama administration released last week (only the 2002 memo; in 2003 Bybee went on the bench).

Ordinarily the impeachment power is employed for the removal of someone who has committed an offense while in office.  Federal judges have tenure “during good Behaviour,” and, like executive branch officials, may be impeached and removed for “Treason, Bribery, or other high Crimes and Misdemeanors.”  I have never heard of a case being brought against a judge or any other official for acts pre-dating his service in office.

But suppose someone took or gave a bribe at some time prior to his appointment as a judge, and this fact, unknown at the time of his appointment, were discovered afterward?  Only the impeachment power could forcibly remove the judge unwilling to step down, and I doubt anyone would question the propriety of the power’s use.

So the campaign against Judge Bybee comes to this: do the Democrats really want to have a debate in the open about this?  When I read pieces by Michael Hayden and Michael Mukasey, by Marc Thiessen, by Andy McCarthy, and by Rich Lowry, I doubt very much whether Nancy Pelosi and Harry Reid will be interested in letting the legal-academic left have its way with their party.  They’d much rather have a lot of hyperventilating about “torture” without putting the question to an actual evidentiary test.

Contributing to the hyperventilation are the editors of Law 360, who run a supposed news item with sentences like this one: “Bybee signed off on specific torture methods . . .”  They should get out their dictionary and look up the word “conclusory.”


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