Yesterday, the United States Senate voted to impeach New Orleans-based Judge Thomas Porteous, “removing him from his lifetime seat on the federal bench and denying him his $174,000 annual pension.” The Senate approved four articles of impeachment against Porteous; Article Two accused him of “corruptly accepting meals, trips and other gifts from a bail bondsman while serving as a state judge.” Porteous’ legal counsel Jonathan Turley argued that Article Two was an unfair basis for impeaching Porteous because it pertained to conduct that occurred before he attained the federal judgeship. “In the history of this republic, no one has ever been removed from office on the basis of pre-federal conduct,” Turley said.

Nevertheless, the House (by a unanimous vote) and the Senate (by a 69-27 vote) convicted Porteous for corrupt conduct that preceded his confirmation as a federal judge. Why is this relevant? Because it lays the precedent for impeaching Jay Bybee, a federal judge on the 9th Circuit who famously penned the Bush administration’s torture memos when he headed the Justice Department’s Office of Legal Counsel.

Recall, in 2009, ThinkProgress launched a petition campaign urging our community to demand that Congress hold impeachment hearings against Bybee for authorizing torture techniques (including waterboarding, slamming a detainee’s head against a wall, and slapping a detainee’s face) that violated U.S. statutes and our international treaty obligations. CAP President and CEO John Podesta said Bybee “doesn’t have the moral or legal authority” to sit on the bench and should be removed from office.

At the time it confirmed Bybee, the Senate was not aware of his role in the torture memos. And Bybee refused to comment on the advice he had provided. As Sen. Patrick Leahy (D-VT) noted, “If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed.” In response to pressure from ThinkProgress and many other progressives, some experts argued that Bybee could not be held accountable for conduct that occurred before he was a judge:

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.” […]

According to the Constitution, “judges…shall hold their office during good behaviour.” [Former Senate parliamentarian Robert] 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.

Now, the House and Senate have gone as record as supporting the impeachment of a federal judge for prior conduct. Are they willing to demand accountability from a federal judge who has never been held responsible for authorizing illegal torture?

Justice Department officials John Yoo and Jay Bybee were two of the main architects of the Bush administration’s torture program. As Bybee’s deputy, Yoo “was the author of much of the legal rationale for using waterboarding and other severe interrogation techniques.” He argued that interrogators who harm a prisoner would be protected “national and international version of the right to self-defense,” and illegal conduct must “shock the conscience.” Bybee headed the DOJ’s Office of Legal Counsel and signed off on the infamous 2002 torture memo. Newsweek now reports that a senior DOJ official has essentially cleared the two men of misconduct in an upcoming office of Professional Responsibility report:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors — Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor — violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action — which, in Bybee’s case, could have led to an impeachment inquiry.

A DOJ official said that Margolis “acted without input” from Attorney General Eric Holder. Emptywheel has more.

Last month, Senate Judiciary Committee chairman Patrick Leahy (D-VT) invited Judge Jay Bybee to testify in front of a subcommittee about his “views” regarding torture and his “role” in drafting the torture memos. The Los Angeles Times subsequently reported that Bybee had chosen to ignore Leahy’s request. Today, however, in a statement during the hearing, Leahy said that Bybee had specifically refused to appear:

Since Judge Bybee, through his lawyers, has declined to testify before the Committee at this time about his role in the drafting and authorization of memoranda from the Office of Legal Counsel that permitted torture, I can only presume that he has no exonerating information to provide. Judge Bybee must know that the presumption in our civil law is that when a person fails to come forward with information in his possession that is relevant to a matter, it is presumed to be because the information is negative and not helpful to his cause.

Testifying voluntary before the Judiciary Committee about these now-public memoranda is one way in which Judge Bybee could have helped complete the record of what happened and why but he refused. This is especially inappropriate given that Judge Bybee has hardly maintained silence about these matters.

ThinkProgress asked Leahy’s office if Bybee’s lawyers informed the committee of his decision after the Times’s report. “I have to be vague,” an aide said, declining to give any specifics as to when Bybee refused the request.

Roll Call reports that conservatives look poised to successfully block the nomination of Dawn Johnsen to head the White House Office of Legal Counsel (OLC). Senate Majority Leader Harry Reid (D-NV) declared that his hands were tied without the assistance of a few Republican votes:

“Right now we’re finding out when to do that,” Reid said, responding to a question about the status of Indiana University law professor Dawn Johnsen’s nomination to the Justice post. “We need a couple Republican votes until we can get to 60.”

It’s unclear why 60 votes are needed to confirm Johnsen, considering her predecessor, Jay Bybee — who went on to authorize illegal torture — won easy confirmation in 2001 through a simple voice vote. Bybee’s successor, Jack Goldsmith, was also approved by a voice vote. Steven Bradbury served for three years as an acting OLC head, and so did not have to come up for a vote. Having a full — and filibuster-proof — Senate vote on Johnsen would be an unusual break with recent precedent.

Senators opposing Johnsen include new Democrat Arlen Specter (PA), who announced his opposition to Johnsen on the day he decided to switch parties, though he has yet to explain why he opposes her. Sen. Ben Nelson (D-NE) has said he “is concerned about her outspoken pro-choice views on abortion.” Sen. John Cornyn (R-TX) insists that Johnsen “has not demonstrated the seriousness and necessary resolve to address the national security challenges we face.”

Johnsen is eminently qualified to head the OLC. She has been an outspoken critic of Bush’s torture and eavesdropping programs, argues persuasively for accountability for wrongdoing, and has written passionately in support of checks and balances and against executive branch power grabs. She is a strong progressive candidate who could restore the tainted OLC to a place of legal professionalism and pride. And, like the majority of Americans, Johnsen thinks abortions should be safe and legal in most cases.

Specter and Nelson can find little in Johnsen’s sterling record to substantively critique, and Reid shouldn’t let them stand in the way. Indeed, their opposition to her breaks their track record for supporting previous OLC heads like Bybee. Remember, when Bush nominated Bybee for a federal judgeship, Specter, Nelson, Cornyn, and Reid all voted to confirm him.

The Las Vegas Sun reports that torture architect — and 9th Circuit appellate judge — Jay Bybee has reached out to members of Nevada’s congressional delegation “to tell his side of the story.” Reps. Dina Titus (D-NV) and Shelley Berkley (D-NV) have both been contacted by representatives of Bybee:

Titus said Wednesday that no meeting has been scheduled. But she said she hopes to hear Bybee out — and to share her concerns.

“I’d like to hear from him if he thinks he made the right decision interpreting the law and doing the job as he saw it defined,” Titus said Wednesday. “But I also will not hesitate to make it clear to him that I absolutely disagree with his interpretation. The United States is not a country of torture.” […]

Democratic Rep. Shelley Berkley’s office was also contacted by Bybee’s representative in April. Berkley’s spokesman said the two have not met, and he was unsure whether they would.

“This was torture, in her mind,” spokesman David Cherry said. “I don’t know if there’s anything he could say to her at this point that would change her thinking.”

While Bybee is interested in talking to Nevada’s delegation, he refuses to respond to Senate Judiciary Committee Chairman Patrick Leahy’s (D-VT) invitation to give testimony before the committee. A New York Times editorial today again calls for the impeachment of Bybee. “The memos he wrote or signed made it clear that he was not fit to make judgments about the law and the Constitution,” the NYT writes. “Congress should remove him.”

On Wednesday, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) sent a letter to Judge Jay Bybee inviting him to testify about his “views” about torture and his “role” in drafting the torture memos. In the letter, Leahy wrote, “I look forward to your cooperation and your testimony.” But the Los Angeles Times reports today that Bybee has “declined to respond” to Leahy’s letter. Bybee’s law clerks initially gave contradictory messages about how the judge would respond, but law clerk Keith Woffinden tried to clean up the confusion, telling the paper, “my impression is that there won’t be any further statements” beyond Bybee’s comments to the New York Times.

Please join our campaign calling on Congress to begin impeachment hearings against Jay Bybee.