Sunday’s New York Times editorializes that Congress should impeach Judge Jay Bybee, who now sits on the U.S. Court of Appeals for the Ninth Circuit, for actions he took in his former position as head of the Office of Legal Counsel. Specifically, the Times argues that OLC memos authored by Bybee and others regarding prisoner interrogations were “not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.” Accordingly, it concludes that Bybee is “unfit for a job that requires legal judgment and a respect for the Constitution.”
It is not my intention here to rehash the arguments regarding the quality of OLC’s work. Assuming that the OLC memos were as poorly reasoned and result-oriented as critics maintain, it is by no means obvious that these memos would constitute impeachable offenses. One might reasonably conclude that the offenses charged by the Times are not “high crimes and misdemeanors” within the meaning of Article II, section 4 of the Constitution, but merely “maladministration” that is beyond the scope of that provision.
For present purposes, however, I will assume that Bybee’s role in authoring or approving various OLC memos falls within the outer limit of what Congress could reasonably find to be an impeachable offense. This assumption leads us to questions of first impression.
Bybee did not commit the alleged misconduct while a federal judge. There is no allegation that he has in any way misused his judicial power or acted improperly in his judicial capacity. It is true that Bybee is charged with misusing his official position, but it was an entirely different official position, in a different branch of government, than the one he has now. There is no precedent for impeaching an official based on misconduct committed in another position.
In fact, as Professor Michael Gerhardt has noted: “As a general matter, it is noteworthy that no one has ever been impeached, much less removed from office, for something he or she did prior to assuming an impeachable position in the federal government.” Gerhardt, The Federal Impeachment Process 108 (1996). Gerhardt nonetheless argues that there are circumstances in which impeachment based on pre-appointment misconduct is appropriate. He notes that “[p]articularly in cases in which an elected or confirmed official has lied or committed a serious act of wrongdoing to get into their present position, the misconduct that was committed prior to entering office clearly bears on the integrity of the way in which the present officeholder entered office and the integrity of that official to remain in office.”
If there is evidence that Bybee lied during his judicial confirmation hearings regarding the OLC interrogation memos, one might have a plausible case for impeaching him as a federal judge. (Indeed, such deception would make a stronger case for impeachment than the underlying misconduct). But in the absence of such evidence, this would seem a weak case for impeachment based on pre-appointment misconduct. The underlying misconduct is at best a borderline impeachable offense. Moreover, the job of a federal judge is quite different than that of the OLC. Some argue that OLC should perform a quasi-judicial function within the executive branch, but this is hardly a universal understanding of its role. Even if one believes that Bybee misconstrued the proper function of OLC, this hardly proves that he is unwilling or unable to faithfully perform his judicial role.
But wait. It is true that Bybee didn’t commit the (allegedly) impeachable offense as a federal judge, but he was in a Senate-confirmed position at the time. And the head of OLC is, like other civil officers of the
Although it is often assumed that impeachment will not lie once an official leaves his or her office, this is in fact far from settled. In fact, the House has previously determined that “resignation of the office does not prevent impeachment for crime or misdemeanor therein.” House Manual § 174 (108th Cong.) (Parliamentarian’s Note). Although the Senate has not convicted on the two occasions where the House impeached a former official (Blount and Belknap), these precedents do not stand for the proposition that the Congress lacks jurisdiction in such cases. As Gerhardt observes, “there is a surprising consensus among commentators that resignation does not necessarily preclude impeachment and disqualification.” Gerhardt, supra, at 79.
In short, it appears likely that Congress does have the power to impeach Bybee for actions he took in his role as the head of OLC. Although it is seldom worth Congress’s while to conduct an impeachment trial for a former official, this is a matter of prudence, not constitutional power.
Suppose, however, Bybee were to be impeached and convicted for these matters. Would this result in his removal as a federal judge? This is another matter of first impression. One could argue that the Constitution requires that any official convicted of a high crime or misdemeanor be removed from office. Alternatively, one could argue that removal is required only if the Senate imposes the punishment of disqualification to hold and enjoy any federal office. Conceivably, one could argue that Bybee could not be removed from his judgeship at all, since the impeachment would relate solely to his prior office and his disqualification would relate solely to future offices.
It seems unlikely that Congress will take up the Times’s invitation to impeach Judge Bybee. But should it do so, plenty of thorny constitutional issues await.
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