Jay Bybee, The Accidental Head of OLC
By Leah Nylen | July 16, 2010 10:00 am

Jay Bybee (doj)

He went in for what he thought was an interview with White House Counsel Alberto Gonzales about a seat on the U.S. Court of Appeals for the 9th Circuit. Only halfway through did Jay Bybee discover he was being considered for another post — Assistant Attorney General for the Office of Legal Counsel, the unit that advises the president and executive branch whether proposed actions would be lawful.

Less than three days later, he was the White House’s declared nominee.

The admission is buried deep in a transcript released Thursday by the House Judiciary Committee of an interview with Bybee about his tenure at the office. Bybee headed the OLC — sometimes called “the Attorney General’s law firm” — from November 2001 through March 2003. In 2002, the OLC issued two opinions — the so-called “torture memos” — which approved the use of enhanced interrogation techniques on terrorism suspects. The opinions were later withdrawn and the Justice Department’s Office of Professional Responsibility spent more than five years examining the conduct of Bybee and his former deputy, John Yoo, in the writing of the memos. OPR ultimately concluded that Yoo and Bybee exhibited “poor judgment” but did not violate professional standards.

The congressional committee, though, has been conducting its own investigation and interviewed Bybee — who did eventually get that seat and is now a judge on the 9th Circuit — on May 26.

Much of the transcript retreads information contained in OPR’s report. But Bybee did give out a few tidbits on how he came to the job.

“I came into this position sort of by accident,” Bybee said, in response to questions from Rep. Jerrold Nadler (D-N.Y.) (The exchange begins on page 28 of the transcript)

Bybee: There had been — and this was my understanding after I got to the Office of Legal Counsel, that there had been some back-and-forth between the Attorney General and the White House over who should have the office and that each of them had a candidate.

Q: Between who — the White House?

Bybee: Between the Attorney General and the White House.

Q: Okay.

Bybee: In early 2001.

Q: Okay.

Bybee: So this was before I was ever contacted or interviewed–

Q: Sure

Bybee: –that there was a lot of back-and-forth. Some of this was even in the papers. I had seen it at the time, just because I was curious. And they had some disagreements. The Attorney General had his candidate: the White House had his candidate. Neither one would agree to the other’s candidate. They chose a compromise candidate –

Q: We’ve never seen such a situation before. Unheard of.

Bybee: They chose a compromise candidate. And the White House actually announced somebody for the Office of Legal Counsel, announced an intent to nominate.

Q: The compromise.

Bybee: The compromise. And, within a couple of weeks, the candidate withdrew.

The other OLC candidates (from top): Douglas R. Cox (Gibson Dunn); Maureen Mahoney (University of Michigan); and John F. Manning (Columbia Law).

Bybee’s account seems to ring true: according to a Washington Post story from May 2001 (not available online), the Justice Department wanted Douglas R. Cox, a deputy in the OLC in the Reagan administration and friend of soon-to-be Solicitor General Theodore Olsen. The White House wanted Maureen E. Mahoney, a former Deputy Solicitor General.

In March 2001, the White House announced that President George W. Bush intended to nominate John F. Manning — the “consensus candidate” — to head the OLC. Manning, a professor at Columbia Law School, had previously served in the Solicitor General’s office and the OLC. Manning withdrew his candidacy less than two months later.

Back to Bybee.

Later in the interview, Nadler asked the lawyer about an April 2009 story in The Washington Post that claimed Bybee was asked to head up OLC until a spot on the 9th Circuit became available.

“That is not correct,” Bybee said, launching into a detailed chronology of how he came to head the office. (The chronology starts on page 44)

Bybee: In June 2001, I received a phone call at home from somebody from the White House asking for Professor Bybee. And the call came out of the blue from somebody I did no know who called and said, “Judge [Alberto] Gonzales [then White House counsel] would like to talk with you about the Ninth Circuit, about a position on the Ninth Circuit. Would you be available to meet with him next week?” …And, at some point in the conversation, he added the words — and I only recalled this later because it was sort of strange, and I didn’t attribute anything to it at the time — he added, “or perhaps something at the Department of Justice.”

I had been in contact with Senator [John] Ensign’s staff because of my experience at the White House and at the Department of Justice… on what the process would be for him recommending people for the U.S. attorney position or a Federal district court or for a court of appeals position.

I also knew, by virtue of that contact because Senator Ensign’s office had asked me for some briefing materials, that Senator Ensign and Senator [Harry] Reid intended to cooperate on judgeships and that they were going to request an additional seat for Nevada.

…When I received this call from the White House, I attributed the call to the success of those efforts by Senators Reid and Ensign. I thought, “Oh my goodness, maybe they got an additional seat for Nevada and I’m under consideration.”

When I went to Washington to interview with Judge Gonzales in June of 2001…I was ushered into his office. And as Judge Gonzales walked in, he said, “What are we talking to Professor Bybee about?” And an assistant said, “The Ninth Circuit and the Office of Legal Counsel.” That was the first time that anybody had said I was under consideration for anything at the Office of Legal Counsel. I didn’t know whether they were looking for an Assistant Attorney General of a Deputy Attorney General or what they were looking for.

We spent roughly half the interview talking about the Ninth Circuit, a matter on which I felt prepared because I had done a little bit of research, and then [Gonzales] said, “All right, let’s talk about the Office of Legal Counsel” …and asked my views about the role of the Office of Legal Counsel and so on.

…I left that interview and went out to Virginia, where I have family, and received a call that night from the White House saying, “We want to know whether you and your wife would be serious about considering the Office of Legal Counsel position. Because, if so, the Attorney General has an opportunity tomorrow on his schedule and he could interview you before you fly home to Nevada.

And I spoke with my wife and returned the following morning to talk with the Attorney General and his staff about the Office of Legal Counsel position. That would have been, I believe, on a Wednesday.

I knew that the Attorney General was interviewing other candidates for the Office of Legal Counsel. On Friday, I received another call from the White House offering me the position to be head of the Office of Legal Counsel, which I accepted.

The White House would announce the president’s intent to nominate Bybee in July, though because of the lawyer’s schedule of classes at University of Nevada Las Vegas Law School, he was not officially nominated until early September. Bybee was confirmed to the post in November and remained as head of OLC until he was confirmed as a judge on the 9th Circuit less than two years later in March 2003.

Bybee was accompanied to the interview by his lawyers from Latham & Watkins LLP — one of whom, incidentally, was Mahoney, a candidate Bybee “accidentally” beat out for the OLC post.

Bybee Transcript

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