OPR Report on Jay Bybee Finds Serious Lapses of Judgment
David Johnston and Scott Shane report:
An internal Justice Department inquiry has concluded that Bush administration lawyers committed serious lapses of judgment in writing secret memorandums authorizing brutal interrogations but that they should not be prosecuted, according to government officials briefed on its findings.
The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask state bar associations to consider possible disciplinary action, which could include reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.
Before we disbar Jay Bybee, can’t we impeach him and get him off the appeals court? Under the circumstances, it would just be absurd to be a trial judge and have your decision-making overruled by Judge Bybee or to be a defendant and have yourself sent to jail by him. A lifetime appointment to the appeals court is a high honor and privilege. Anyone about whose legal conduct we’re debating whether or not it rising to the level of criminal culpability is not fit to serve.
51 Responses to “OPR Report on Jay Bybee Finds Serious Lapses of Judgment”
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May 6th, 2009 at 10:03 am
Sometimes I click over here after reading The Onion and I get disoriented for a second. So, the guy who authorized putting people in a little box with insects and pouring water over their face until they broke down weeping and pleading for their lives had some lapses in judgment? Are we sure?
May 6th, 2009 at 10:03 am
can’t we impeach him and get him off the appeals court?
No, you can’t imeach someone for conduct that occurred before he was appointed.
May 6th, 2009 at 10:05 am
I can’t see how there’d be any problems with the guy who bent over backwards to authorize torture having to rule on 4th amendment or police brutality cases.
May 6th, 2009 at 10:06 am
Did Bybee lie about a blowjob? No? Then no of course we can’t impeach him.
May 6th, 2009 at 10:09 am
No, you can’t imeach someone for conduct that occurred before he was appointed.
Legally speaking, Congress can impeach and remove from office any judge (or for that matter, the president, as we saw in 1998) for any reason. The courts have no say in the matter.
May 6th, 2009 at 10:11 am
Will the report not include a referral for criminal prosecution, or will it actually recommend against criminal prosecution? Those are two very different things.
No, you can’t imeach someone for conduct that occurred before he was appointed.
Cite?
I would note there is no such express limitation in the Constitution.
May 6th, 2009 at 10:23 am
If you impeach him some southern will just elect him to Congress anyway. You can’t win.
May 6th, 2009 at 10:23 am
If you impeach him some southern state will just elect him to Congress anyway. You can’t win.
May 6th, 2009 at 10:29 am
I would note there is no such express limitation in the Constitution.
Yes, there is. Art III, Sec. 1: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
May 6th, 2009 at 10:30 am
If you impeach him some southern state will just elect him to Congress anyway.
True, as we’ve seen with Alcee Hastings.
May 6th, 2009 at 10:31 am
No, you can’t imeach someone for conduct that occurred before he was appointed.
Thinking a little more about this:
Person X commits treason (imagine whatever real treason you like–say actively participating in armed attacks on U.S. military personnel).
However, Person X’s treason isn’t discovered until after they have been nominated and confirmed as a federal official.
Can Person X be impeached and removed from office? I’ll bet you dollars to donuts Person X can, or at least that no court would say otherwise.
May 6th, 2009 at 10:31 am
I have noticed since the election a tendency to jump to the gun and make assumptions on many issues, including this one.
While it’s good to make sure the administration knows and is bugged about prosecutions for torture, I think democrats need to also know when to take a breath.
A recommendation is just that. A recommendation and not an absolute or final word.
I find the media hypes the assumption thing by stating this as a final word rather then a recommendation.
People are going to have to realize that the president cannot make judgments or decisions while active investigations are going on.
And they have to be careful what they say and do because of political, international and legal eggshells.
What happens with the lawyers and Bushies in regard to torture is not going to be broadcast before things are complete and we probably will not know for certain for some time yet.
May 6th, 2009 at 10:33 am
They won’t disbar this guy. Bar associations are a joke, they never disbar government officials no matter who severe their crimes. Prosecutors plant evidence, suborn perjury, destroy exculpatory evidence, and nothing ever happens to any of them.
You can impeach someone for prior conduct. There’s a constitutional bar against ex post facto criminal law, not this.
May 6th, 2009 at 10:42 am
Yes, there is. Art III, Sec. 1: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
So? “Good behavior” could mean whatever Congress wanted it to mean–it could, for example, be deemed violated by failing to immediately disclose past high crimes and misdemeanors subject to impeachment. The “good behavior” clause in that sense expands, not limits, Congress’s power to impeach judges.
May 6th, 2009 at 10:43 am
I’ll bet you dollars to donuts Person X can, or at least that no court would say otherwise.
Oh, I completely agree that no court would intervene – it seems non-justiciable to me. In a case like this, is up to Congress itself to uphold the Constitution.
May 6th, 2009 at 10:46 am
“No, you can’t impeach someone for conduct that occurred before he was appointed.”
“Bar associations are a joke, they never disbar government officials no matter who severe their crimes. Prosecutors plant evidence, suborn perjury, destroy exculpatory evidence, and nothing ever happens to any of them.”
Therefore, we can plant evidence on Bybee and get him impeached for conduct after he was appointed, without facing any legal repercussions. Problem solved!
May 6th, 2009 at 10:50 am
In a case like this, is up to Congress itself to uphold the Constitution.
Again, I see no constitutional reason why an Article III judge who committed treason prior to confirmation, but whose treason was only discovered after confirmation, could not be impeached for the treason, and found to have violated the good behavior clause due to the ongoing failure to disclose.
May 6th, 2009 at 10:53 am
Al is basically right. The POTUS is a special case – he can be impeached for basically any reason. That’s because a president can’t be indicted while in office. So if I shoot someone on January 20th and then I take office on January 21st, I can be impeached so that I can stand trial the shooting.
If Bybee shot someone, then became a judge, he can stand trial while still holding office, so he wouldn’t need to be impeached.
I still don’t really understand how what Bybee did could be a crime. If I tell my lawyer “give me a brief on what I can do to somebody in my custody within the law” and he gives me his opinion, I could certainly sue him if I wind up going to jail for following his advice.
Failing that, though, how did Bybee do anything wrong? Bush/Cheney said “we want to know what we can get by with” and Bybee said “you can get by with this.” Cheney and Bush are walking around free. So where’s the wrongdoing on Bybee’s part?
Not saying he’s not a sleazeball. But being a sleazeball is not, thank goodness, sufficient to disbar an officer of the court.
May 6th, 2009 at 11:01 am
I still don’t really understand how what Bybee did could be a crime
Advising people that they can legally torture someone doesn’t seem like “good behavior” to me.
May 6th, 2009 at 11:03 am
Even if true, it is not applicable here.
Impeachment is not removal from a specific office. He would not be impeached from his judgeship. Impeachment is a finding that the person is unfit for any federal office. He would be impeached for his actions at the justice Department, which would make him ineligible to hold his position on the bench. In essence, he would be considered a person intrinsically incapable of “good behavior”.
May 6th, 2009 at 11:04 am
“Good behavior” clearly refers to conduct while in office, and has generally been taken to refer to conduct relevant to the office itself. You couldn’t impeach a judge for eating too much cake, either before taking office or while he was in there.
Not good behavior, but not exactly an impeachable offense either.
May 6th, 2009 at 11:08 am
“Impeachment is a finding that the person is unfit for any federal office.”
Flatly false. A person who is impeached from a federal office is not barred from holding another federal office.
May 6th, 2009 at 11:12 am
Treaties to which the US is signatory have the force of law in the US. Officers of the United States are tasked with upholding those laws. The treaties covering torture mandate that the US government pass and enforce laws against torture. Bybee, in his office as the ultimate interpreter of law within the executive branch, subverted the laws passed by congress, and allowed torture to take place.
May 6th, 2009 at 11:13 am
We should, BTW, take a step back from all this “can” and “can’t” business.
Congress can impeach anybody, for anything. There have been a couple of federal officers impeached for basically no reason at all. Usually doesn’t work, but they can do it.
May 6th, 2009 at 11:16 am
From Art. I sec 7.
Flatly true.
May 6th, 2009 at 11:17 am
I still don’t really understand how what Bybee did could be a crime.
A lawyer who tries to give a client legal cover for illegal actions in bad faith can be convicted of participating in a criminal act and/or conspiracy. For a particularly on point example, see U.S. v. Alstoetter (where Nazi lawyers were convicted of war crimes and crimes against humanity in part for writing legal opinions authorizing programs, and for providing advice on how to structure those programs, where the court found the lawyers must have known the programs violated the Hague and Geneva Conventions).
“Good behavior” clearly refers to conduct while in office, and has generally been taken to refer to conduct relevant to the office itself.
Harry E. Claiborne was impeached for tax evasion. Walter Nixon was impeached for perjury before a grand jury.
May 6th, 2009 at 11:17 am
Article I, section 3 (not 7) above.
May 6th, 2009 at 11:29 am
Flatly true.
It depends on what is meant by “federal officer”. As pointed out above as regards Alcee Hastings, an impeached judge can be elected to Congress.
May 6th, 2009 at 11:33 am
Harry E. Claiborne was impeached for tax evasion. Walter Nixon was impeached for perjury before a grand jury.
Claiborne was impeached for tax evasion relating to a bribe he took while a judge. Nixon was impeached for perjury relating to grand jury testimony about actions he took while a judge in intervening in a case.
May 6th, 2009 at 11:35 am
I still don’t really understand how what Bybee did could be a crime. If I tell my lawyer “give me a brief on what I can do to somebody in my custody within the law” and he gives me his opinion, I could certainly sue him if I wind up going to jail for following his advice.
But if you tell your lawyer “I want to go out and murder some little girls. Give me a brief that tells me it’s legal for me to do so” and he then give you his opinion it’s perfectly legal when he in fact knows it’s not, and he also knows that you are going to use that brief as cover for your little girl murdering activities, he’s an aiding and abetting your criminal conduct and he can go to jail, even when all he did was write a memo.
May 6th, 2009 at 11:48 am
Claiborne was impeached for tax evasion relating to a bribe he took while a judge. Nixon was impeached for perjury relating to grand jury testimony about actions he took while a judge in intervening in a case.
Claiborne was never convicted for bribery, and similarly Nixon was never convicted for anything but making false statements. So if your point is that these are cases where the conduct was post-confirmation, that is true, but I was answering the claim that “good behavior” necessarily refers to “conduct relevant to the office itself”. That simply wasn’t the case for Claiborne and Nixon.
May 6th, 2009 at 11:54 am
I was answering the claim that “good behavior” necessarily refers to “conduct relevant to the office itself”. That simply wasn’t the case for Claiborne and Nixon.
Huh?
Claiborne was not convicted for bribery, but he was certainly imeached for acts relating to bribery. That is certainly “conduct relevant to the office itself”. Similar for Nixon.
May 6th, 2009 at 12:01 pm
All three branches of government are rife with criminals. Bush had an entire layer of advisors and functionaries guilty or closely associated with multiple crimes relating to Iran Contra. If impeachment or removal by other means should be automatic because of proven criminality or demonstrable lapses in judgment the next year will be spent cleaning out dozens of offices and installing replacements.
May 6th, 2009 at 12:17 pm
Claiborne was not convicted for bribery, but he was certainly imeached for acts relating to bribery. That is certainly “conduct relevant to the office itself”. Similar for Nixon.
Nope: that is one “related to” too far (X is related to Y, and Y is related to the office, doesn’t make X related to the office), and again in any event the middle step (the Y) was never proven in court or in Congress in either case.
Oh, and I might note again that to the extent there is a limit on Congress in this case, it would have to be in the text of the Constitution itself. I don’t see anything in Article III which says “good behavior” has to be related to the office (or related to things which are themselves related to the office, or whatever the theory is supposed to be).
May 6th, 2009 at 1:59 pm
This argument is exactly backwards. The Constitution specifies that the President can only be impeached for “high crimes and misdemeanors,” but doesn’t include such limiting language for other federal officers.
May 6th, 2009 at 2:25 pm
On the question of impeachment, I would think it would be much easier to get through Congress *after* the state bars had ruled on the issue. If Bybee is disbarred or censured or whatnot, it makes it much easier for Dems in Congress to get votes for impeachment, because an objective third party has already found wrongdoing related to Bybee’s ability to practice law.
May 6th, 2009 at 2:35 pm
NYC_Charles,
I think you are right about disbarment helping the case in Congress, but I would note the Republicans in particular have long claimed that bar associations are not neutral parties.
May 6th, 2009 at 3:08 pm
So I have question for the lawyers out there. If a judge is disbarred, does he get to keep his office? It would seem that someone who isn’t a member of the Bar wouldn’t be allowed to participate in legal matters unless he was a defendant. But I’m not a lawyer, I’m just a habitual defendant*. So I don’t really know. But maybe some lawyer can answer this question.
*So what do you call a hippie wearing a tie? Defendant.
May 6th, 2009 at 3:22 pm
“I’m just a habitual defendant”
I guess I should add that I’ve also been a plaintiff, a victim, a material witness, and an expert witness. But I’m usually a defendant. I’ve often spent more time in court than the lawyers who represent me. I actually had this situation: my lawyer was fresh out of college and was nervous, but I wasn’t. So I said to him: don’t be worried, you’ll do fine. I know this judge, she’s convicted me twice. She’s a stickler about evidence, and she always insists on reading the arrest report even when there’s a plea agreement. It didn’t change the situation because there was already a plea, but it did make my lawyer more comfortable.
May 6th, 2009 at 3:25 pm
If a judge is disbarred, does he get to keep his office?
A federal judge, yes. There is no requirement that a federal judge must be a member of a bar, and a federal judge has to be removed from office by Congress.
May 6th, 2009 at 3:46 pm
Thanks for the answer, DTM. But let’s face it, that answer is pretty scary. In theory, Charles Manson could be federal judge. And let’s face it, Manson knows a hell of a lot more about court proceedings than many judges do. You learn more as a defendant than you do in law school. Court appearances are very informative. And Manson has been in more court proceedings than most judges.
May 6th, 2009 at 4:13 pm
“I know this judge, she’s convicted me twice.”
So here’s the weird thing: I’ve been convicted three times in my life, and it’s been the same judge every time. And we have judicial recall in our elections. And I have always voted to keep her in office. She threw me in jail a few times, but I always thought she was a very fair and very competent judge. And if she ever gets a consideration for the Colorado Supreme Court, I’ll support her, and I’ll even campaign for her. But there’s obviously a question about whether my campaigning would actually help.
May 6th, 2009 at 4:16 pm
But let’s face it, that answer is pretty scary.
Yeah, the Constitution basically relies on Congress to take care of policing the executive and judicial branches. And partisan politics kinda screws that mechanism up.
May 6th, 2009 at 4:25 pm
I know it was a long time ago (back in the 1990’s), but their was an impeachment movement initiated by conservatives opposed to activist judges, with special emphasis on gay rights. This 1998 article continues (my bolding):
Well, that was then.
May 6th, 2009 at 4:27 pm
Oops, sorry for the no-link.
IMPEACHING FEDERAL JUDGES: A COVENANTAL AND CONSTITUTIONAL RESPONSE TO JUDICIAL TYRANNY
Regent University Law Review article ^ | SPRING 1998 | Steven W. Fitschen
Careful – it was posted by a Freeper.
May 6th, 2009 at 4:36 pm
Well, our Constitution obviously has some flaws. But we have to live with it. It’s really who we are. We aren’t a single people. And we aren’t a piece of land. We are just a bunch of people who agree to live by the words on a few pieces of paper. And that may seem kind of silly, but it’s really the most powerful ideal that history has ever known. In that sense, we really are special. But we shouldn’t be proud of that document, we should just uphold it. Even if it has some flaws. But let’s face it, we all have our flaws. And I have more flaws than most people, but I have never met a flawless person. And I’ve met the Dalai Lama. Even he has flaws.
May 6th, 2009 at 6:17 pm
Njorl:
The point of Article I, Section 3 is to prohibit Congress from imposing penalties beyond removal from office and being barred from holding further office. However, by default articles of impeachment do not include a prohibition on the impeached officer holding federal office in the future, and I’m not aware of an article of impeachment that has passed the Senate that included such a prohibition. Doesn’t mean it doesn’t exist, but the point is that impeachment does not itself bar an officer from holding office in the future, and it is definitely NOT a general way of finding a person fit or unfit for federal office.
Federal impeachment is a political process for removing an officer from a specific federal office.
May 6th, 2009 at 8:23 pm
Oh, please; has anyone checked out Demjanjuk vs Holder?
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May 6th, 2009 at 9:11 pm
For those for whom my previous comment is too cryptic, consider this. The Holder Justice Department has just filed a brief in the Demjanjuk case using precisely the same reasoning about intent that Bybee and Yoo developed in 2002. This is at a time that their Office of Professional Responsibility is dissing on that reasoning. It’s either grotesque hypocrisy, or the right hand doesn’t know what the left hand is doing. In neither case am I impressed with the professionalism of this DOJ.
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May 6th, 2009 at 9:51 pm
That seems right. The Senate voted to prohibit West H. Humphreys and Robert W. Archbald from holding federal office in the future, but those seem to be the only two cases where that occurred.
May 7th, 2009 at 9:40 am
kim at 49
Or alternatively, as Thomas Collins and clarice have suggested, Obama has satisfied both the extreme left by bringing up the cases for potential prosecution, and also made it impossible to actually prosecute them, which may be more in accord with his wishes. This would not argue incompetence so much as political hypocrisy and double dealing. Clever, but is it good?
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