[Senate Document 111-13]
[From the U.S. Government Publishing Office]


111th Congress
2d Session                      SENATE                        Document
111-13
_______________________________________________________________________


 
                             IMPEACHMENT OF
                     JUDGE G. THOMAS PORTEOUS, JR.

                               __________

   CONSTITUTIONAL PROVISIONS; RULES OF PROCEDURE AND PRACTICE IN THE 
  SENATE WHEN SITTING ON IMPEACHMENT TRIALS; ARTICLES OF IMPEACHMENT 
  AGAINST JUDGE G. THOMAS PORTEOUS, JR.; JUDGE PORTEOUS' ANSWER; AND 
          AMENDED REPLICATION OF THE HOUSE OF REPRESENTATIVES




 Printed at the direction of Nancy Erickson, Secretary of the Senate, 
         pursuant to S. Res. 457, 111th Cong., 2d Sess. (2010)

                 March 17, 2010.--Ordered to be printed
                           TABLE OF CONTENTS

                              ----------                              
                                                                   Page
 I. S. Res. 457, 111th Cong., 2d Sess. (2010).........................1

II. Constitutional Provisions on Impeachment..........................5

III.Rules of Procedure and Practice in the Senate When Sitting on 
    Impeachment Trials................................................7

IV. Articles of Impeachment Against Judge G. Thomas Porteous, Jr. (H. 
    Res. 1031, 111th Cong., 2d Sess. (2010)).........................15

 V. Answer of Judge G. Thomas Porteous, Jr., to Articles of Impeachme25

VI. Amended Replication of the House of Representatives to the Answer 
    of Judge G. Thomas Porteous, Jr..................................35



              II. CONSTITUTIONAL PROVISIONS ON IMPEACHMENT

    The provisions of the United States Constitution which 
apply specifically to impeachment are as follows:

                     Article I, Section 2, Clause 5

          The House of Representatives . . . shall have the 
        sole Power of Impeachment.

                 Article I, Section 3, Clauses 6 and 7

          The Senate shall have the sole Power to try all 
        Impeachments. When sitting for that Purpose, they shall 
        be on Oath or Affirmation. When the President of the 
        United States is tried, the Chief Justice shall 
        preside: And no Person shall be convicted without the 
        Concurrence of two thirds of the Members present.
          Judgment in Cases of Impeachment shall not extend 
        further than to removal from Office, and 
        disqualification to hold and enjoy any Office of honor, 
        Trust or Profit under the United States: but the Party 
        convicted shall nevertheless be liable and subject to 
        Indictment, Trial, Judgment and Punishment, according 
        to Law.

                    Article II, Section 2, Clause 1

          The President . . . shall have Power to grant 
        Reprieves and Pardons for Offences against the United 
        States, except in Cases of Impeachment.

                         Article II, Section 4

          The President, Vice President and all civil Officers 
        of the United States, shall be removed from Office on 
        Impeachment for, and Conviction of, Treason, Bribery, 
        or other high Crimes and Misdemeanors.

                         Article III, Section 1

          . . . The Judges, both of the supreme and inferior 
        Courts, shall hold their offices during good Behaviour, 
        . . .

                    Article III, Section 2, Clause 3

          The Trial of all Crimes, except in Cases of 
        Impeachment, shall be by Jury; . . .

  III. RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON 
                           IMPEACHMENT TRIALS

    I. Whensoever the Senate shall receive notice from the 
House of Representatives that managers are appointed on their 
part to conduct an impeachment against any person and are 
directed to carry articles of impeachment to the Senate, the 
Secretary of the Senate shall immediately inform the House of 
Representatives that the Senate is ready to receive the 
managers for the purpose of exhibiting such articles of 
impeachment, agreeably to such notice.
    II. When the managers of an impeachment shall be introduced 
at the bar of the Senate and shall signify that they are ready 
to exhibit articles of impeachment against any person, the 
Presiding Officer of the Senate shall direct the Sergeant at 
Arms to make proclamation, who shall, after making 
proclamation, repeat the following words, viz: ``All persons 
are commanded to keep silence, on pain of imprisonment, while 
the House of Representatives is exhibiting to the Senate of the 
United States articles of impeachment against ------ --------
''; after which the articles shall be exhibited, and then the 
Presiding Officer of the Senate shall inform the managers that 
the Senate will take proper order on the subject of the 
impeachment, of which due notice shall be given to the House of 
Representatives.
    III. Upon such articles being presented to the Senate, the 
Senate shall, at 1 o'clock afternoon of the day (Sunday 
excepted) following such presentation, or sooner if ordered by 
the Senate, proceed to the consideration of such articles and 
shall continue in session from day to day (Sundays excepted) 
after the trial shall commence (unless otherwise ordered by the 
Senate) until final judgment shall be rendered, and so much 
longer as may, in its judgment, be needful. Before proceeding 
to the consideration of the articles of impeachment, the 
Presiding Officer shall administer the oath hereinafter 
provided to the Members of the Senate then present and to the 
other Members of the Senate as they shall appear, whose duty it 
shall be to take the same.
    IV. When the President of the United States or the Vice 
President of the United States, upon whom the powers and duties 
of the Office of President shall have devolved, shall be 
impeached, the Chief Justice of the United States shall 
preside; and in a case requiring the said Chief Justice to 
preside notice shall be given to him by the Presiding Officer 
of the Senate of the time and place fixed for the consideration 
of the articles of impeachment, as aforesaid, with a request to 
attend; and the said Chief Justice shall be administered the 
oath by the Presiding Officer of the Senate and shall preside 
over the Senate during the consideration of said articles and 
upon the trial of the person impeached therein.
    V. The Presiding Officer shall have power to make and 
issue, by himself or by the Secretary of the Senate, all 
orders, mandates, writs, and precepts authorized by these rules 
or by the Senate, and to make and enforce such other 
regulations and orders in the premises as the Senate may 
authorize or provide.
    VI. The Senate shall have power to compel the attendance of 
witnesses, to enforce obedience to its orders, mandates, writs, 
precepts, and judgments, to preserve order, and to punish in a 
summary way contempts of, and disobedience to, its authority, 
orders, mandates, writs, precepts, or judgments, and to make 
all lawful orders, rules, and regulations which it may deem 
essential or conducive to the ends of justice. And the Sergeant 
at Arms, under the direction of the Senate, may employ such aid 
and assistance as may be necessary to enforce, execute, and 
carry into effect the lawful orders, mandates, writs, and 
precepts of the Senate.
    VII. The Presiding Officer of the Senate shall direct all 
necessary preparations in the Senate Chamber, and the Presiding 
Officer on the trial shall direct all the forms of proceedings 
while the Senate is sitting for the purpose of trying an 
impeachment, and all forms during the trial not otherwise 
specially provided for. And the Presiding Officer on the trial 
may rule on all questions of evidence including, but not 
limited to, questions of relevancy, materiality, and redundancy 
of evidence and incidental questions, which ruling shall stand 
as the judgment of the Senate, unless some Member of the Senate 
shall ask that a formal vote be taken thereon, in which case it 
shall be submitted to the Senate for decision without debate; 
or he may at his option, in the first instance, submit any such 
question to a vote of the Members of the Senate. Upon all such 
questions the vote shall be taken in accordance with the 
Standing Rules of the Senate.
    VIII. Upon the presentation of articles of impeachment and 
the organization of the Senate as hereinbefore provided, a writ 
of summons shall issue to the person impeached, reciting said 
articles, and notifying him to appear before the Senate upon a 
day and at a place to be fixed by the Senate and named in such 
writ, and file his answer to said articles of impeachment, and 
to stand to and abide the orders and judgments of the Senate 
thereon; which writ shall be served by such officer or person 
as shall be named in the precept thereof, such number of days 
prior to the day fixed for such appearance as shall be named in 
such precept, either by the delivery of an attested copy 
thereof to the person impeached, or if that cannot conveniently 
be done, by leaving such copy at the last known place of abode 
of such person, or at his usual place of business in some 
conspicuous place therein; or if such service shall be, in the 
judgment of the Senate, impracticable, notice to the person 
impeached to appear shall be given in such other manner, by 
publication or otherwise, as shall be deemed just; and if the 
writ aforesaid shall fail of service in the manner aforesaid, 
the proceedings shall not thereby abate, but further service 
may be made in such manner as the Senate shall direct. If the 
person impeached, after service, shall fail to appear, either 
in person or by attorney, on the day so fixed thereof as 
aforesaid, or, appearing, shall fail to file his answer to such 
articles of impeachment, the trial shall proceed, nevertheless, 
as upon a plea of not guilty. If a plea of guilty shall be 
entered, judgment may be entered thereon without further 
proceedings.
    IX. At 12:30 o'clock afternoon of the day appointed for the 
return of the summons against the person impeached, the 
legislative and executive business of the Senate shall be 
suspended, and the Secretary of the Senate shall administer an 
oath to the returning officer in the form following, viz: ``I, 
------ ------, do solemnly swear that the return made by me 
upon the process issued on the ------ day of ------, by the 
Senate of the United States, against ------ ------ is truly 
made, and that I have performed such service as therein 
described: So help me God.'' Which oath shall be entered at 
large on the records.
    X. The person impeached shall then be called to appear and 
answer the articles of impeachment against him. If he appears, 
or any person for him, the appearance shall be recorded, 
stating particularly if by himself, or by agent or attorney, 
naming the person appearing and the capacity in which he 
appears. If he does not appear, either personally or by agent 
or attorney, the same shall be recorded.
    XI. That in the trial of any impeachment the Presiding 
Officer of the Senate, if the Senate so orders, shall appoint a 
committee of Senators to receive evidence and take testimony at 
such times and places as the committee may determine, and for 
such purpose the committee so appointed and the chairman 
thereof, to be elected by the committee, shall (unless 
otherwise ordered by the Senate) exercise all the powers and 
functions conferred upon the Senate and the Presiding Officer 
of the Senate, respectively, under the rules of procedure and 
practice in the Senate when sitting on impeachment trials.
    Unless otherwise ordered by the Senate, the rules of 
procedure and practice in the Senate when sitting on 
impeachment trials shall govern the procedure and practice of 
the committee so appointed. The committee so appointed shall 
report to the Senate in writing a certified copy of the 
transcript of the proceedings and testimony had and given 
before such committee, and such report shall be received by the 
Senate and the evidence so received and the testimony so taken 
shall be considered to all intents and purposes, subject to the 
right of the Senate to determine competency, relevancy, and 
materiality, as having been received and taken before the 
Senate, but nothing herein shall prevent the Senate from 
sending for any witness and hearing his testimony in open 
Senate, or by order of the Senate having the entire trial in 
open Senate.
    XII. At 12:30 o'clock afternoon, or at such other hour as 
the Senate may order, of the day appointed for the trial of an 
impeachment, the legislative and executive business of the 
Senate shall be suspended, and the Secretary shall give notice 
to the House of Representatives that the Senate is ready to 
proceed upon the impeachment of ------ ------, in the Senate 
Chamber.
    XIII. The hour of the day at which the Senate shall sit 
upon the trial of an impeachment shall be (unless otherwise 
ordered) 12 o'clock m.; and when the hour shall arrive, the 
Presiding Officer upon such trial shall cause proclamation to 
be made, and the business of the trial shall proceed. The 
adjournment of the Senate sitting in said trial shall not 
operate as an adjournment of the Senate; but on such 
adjournment the Senate shall resume the consideration of its 
legislative and executive business.
    XIV. The Secretary of the Senate shall record the 
proceedings in cases of impeachment as in the case of 
legislative proceedings, and the same shall be reported in the 
same manner as the legislative proceedings of the Senate.
    XV. Counsel for the parties shall be admitted to appear and 
be heard upon an impeachment.
    XVI. All motions, objections, requests, or applications 
whether relating to the procedure of the Senate or relating 
immediately to the trial (including questions with respect to 
admission of evidence or other questions arising during the 
trial) made by the parties or their counsel shall be addressed 
to the Presiding Officer only, and if he, or any Senator, shall 
require it, they shall be committed to writing, and read at the 
Secretary's table.
    XVII. Witnesses shall be examined by one person on behalf 
of the party producing them, and then cross-examined by one 
person on the other side.
    XVIII. If a Senator is called as a witness, he shall be 
sworn, and give his testimony standing in his place.
    XIX. If a Senator wishes a question to be put to a witness, 
or to a manager, or to counsel of the person impeached, or to 
offer a motion or order (except a motion to adjourn), it shall 
be reduced to writing, and put by the Presiding Officer. The 
parties or their counsel may interpose objections to witnesses 
answering questions pro-pounded at the request of any Senator 
and the merits of any such objection may be argued by the 
parties or their counsel. Ruling on any such objection shall be 
made as provided in Rule VII. It shall not be in order for any 
Senator to engage in colloquy.
    XX. At all times while the Senate is sitting upon the trial 
of an impeachment the doors of the Senate shall be kept open, 
unless the Senate shall direct the doors to be closed while 
deliberating upon its decisions. A motion to close the doors 
may be acted upon without objection, or, if objection is heard, 
the motion shall be voted on without debate by the yeas and 
nays, which shall be entered on the record.
    XXI. All preliminary or interlocutory questions, and all 
motions, shall be argued for not exceeding one hour (unless the 
Senate otherwise orders) on each side.
    XXII. The case, on each side, shall be opened by one 
person. The final argument on the merits may be made by two 
persons on each side (unless otherwise ordered by the Senate 
upon application for that purpose), and the argument shall be 
opened and closed on the part of the House of Representatives.
    XXIII. An article of impeachment shall not be divisible for 
the purpose of voting thereon at any time during the trial. 
Once voting has commenced on an article of impeachment, voting 
shall be continued until voting has been completed on all 
articles of impeachment unless the Senate adjourns for a period 
not to exceed one day or adjourns sine die. On the final 
question whether the impeachment is sustained, the yeas and 
nays shall be taken on each article of impeachment separately; 
and if the impeachment shall not, upon any of the articles 
presented, be sustained by the votes of two-thirds of the 
Members present, a judgment of acquittal shall be entered; but 
if the person impeached shall be convicted upon any such 
article by the votes of two-thirds of the Members present, the 
Senate may proceed to the consideration of such other matters 
as may be determined to be appropriate prior to pronouncing 
judgment. Upon pronouncing judgment, a certified copy of such 
judgment shall be deposited in the office of the Secretary of 
State. A motion to reconsider the vote by which any article of 
impeachment is sustained or rejected shall not be in order.
Form of putting the question on each article of impeachment
    The Presiding Officer shall first state the question; 
thereafter each Senator, as his name is called, shall rise in 
his place and answer: guilty or not guilty.
    XXIV. All the orders and decisions may be acted upon 
without objection, or, if objection is heard, the orders and 
decisions shall be voted on without debate by yeas and nays, 
which shall be entered on the record, subject, however, to the 
operation of Rule VII, except when the doors shall be closed 
for deliberation, and in that case no Member shall speak more 
than once on one question, and for not more than ten minutes on 
an interlocutory question, and for not more than fifteen 
minutes on the final question, unless by consent of the Senate, 
to be had without debate; but a motion to adjourn may be 
decided without the yeas and nays, unless they be demanded by 
one-fifth of the Members present. The fifteen minutes herein 
allowed shall be for the whole deliberation on the final 
question, and not on the final question on each article of 
impeachment.
    XXV. Witnesses shall be sworn in the following form, viz: 
``You, ------ ------, do swear (or affirm, as the case may be) 
that the evidence you shall give in the case now pending 
between the United States and ------ ------, shall be the 
truth, the whole truth, and nothing but the truth: So help you 
God.'' Which oath shall be administered by the Secretary, or 
any other duly authorized person.
Form of a subpena to be issued on the application of the managers of 
        the impeachment, or of the party impeached, or of his counsel
To ------ ------, greeting:
    You and each of you are hereby commanded to appear before 
the Senate of the United States, on the ---- day of ----, at 
the Senate Chamber in the city of Washington, then and there to 
testify your knowledge in the cause which is before the Senate 
in which the House of Representatives have impeached ------ --
----.
    Fail not.
    Witness ------ ------, and Presiding Officer of the Senate, 
at the city of Washington, this ---- day of ----, in the year 
of our Lord ----, and of the Independence of the United States 
the ----.

                                         -------- --------,
                                   Presiding Officer of the Senate.
            Form of direction for the service of said subpena
    The Senate of the United States to ------ ------, greeting:
    You are hereby commanded to serve and return the within 
subpena according to law.
    Dated at Washington, this ---- day of ----, in the year of 
our Lord ------, and of the Independence of the United States 
the ----.
                                         -------- --------,
                                           Secretary of the Senate.
Form of oath to be administered to the Members of the Senate and the 
        Presiding Officer sitting in the trial of impeachments
    ``I solemnly swear (or affirm, as the case may be) that in 
all things appertaining to the trial of the impeachment of ----
-- ------, now pending, I will do impartial justice according 
to the Constitution and laws: So help me God.''
            Form of summons to be issued and served upon the person 
                    impeached
The United States of America, ss:

    The Senate of the United States to -------- ------, 
greeting:
    Whereas the House of Representatives of the United States 
of America did, on the ---- day of ----, exhibit to the Senate 
articles of impeachment against you, the said ------ ------, in 
the words following:

                       [Here insert the articles]

And demand that you, the said ------ ------, should be put to 
answer the accusations as set forth in said articles, and that 
such proceedings, examinations, trials, and judgments might be 
thereupon had as are agreeable to law and justice.
    You, the said ------ ------, are therefore hereby summoned 
to be and appear before the Senate of the United States of 
America, at their Chamber in the city of Washington, on the --
-- day of ----, at ---- o'clock ----, then and there to answer 
to the said articles of impeachment, and then and there to 
abide by, obey, and perform such orders, directions, and 
judgments as the Senate of the United States shall make in the 
premises according to the Constitution and laws of the United 
States.
    Hereof you are not to fail.
    Witness ------ ------, and Presiding Officer of the said 
Senate, at the city of Washington, this ---- day of ----, in 
the year of our Lord ----, and of the Independence of the 
United States the ------.

                                         -------- --------,
                                   Presiding Officer of the Senate.
            Form of precept to be indorsed on said writ of summons
The United States of America, ss:

    The Senate of the United States to ------ ------, greeting:
    You are hereby commanded to deliver to and leave with ----
-- ------, if conveniently to be found, or if not, to leave at 
his usual place of abode, or at his usual place of business in 
some conspicuous place, a true and attested copy of the within 
writ of summons, together with a like copy of this precept; and 
in whichsoever way you perform the service, let it be done at 
least ---- days before the appearance day mentioned in the said 
writ of summons.
    Fail not, and make return of this writ of summons and 
precept, with your proceedings thereon indorsed, on or before 
the appearance day mentioned in the said writ of summons.
    Witness ------ ------, and Presiding Officer of the Senate, 
at the city of Washington, this ---- day of ----, in the year 
of our Lord ----, and of the Independence of the United States 
the ----.

                                         -------- --------,
                                   Presiding Officer of the Senate.
    All process shall be served by the Sergeant at Arms of the 
Senate, unless otherwise ordered by the Senate.
    XXVI. If the Senate shall at any time fail to sit for the 
consideration of articles of impeachment on the day or hour 
fixed therefor, the Senate may, by an order to be adopted 
without debate, fix a day and hour for resuming such 
consideration.


     V. ANSWER OF JUDGE G. THOMAS PORTEOUS, JR. TO THE ARTICLES OF 
                              IMPEACHMENT

    The Honorable G. Thomas Porteous, Jr., a Judge of the 
United States District Court for the Eastern District of 
Louisiana, as commanded by the summons of the Senate of the 
United States, answers the accusations made by the House of 
Representatives of the United States in the four Articles of 
Impeachment it has exhibited to the Senate as follows:

                                Preamble

    THE HOUSE OF REPRESENTATIVES' IMPEACHMENT OF JUDGE PORTEOUS IS 
                     UNPRECEDENTED AND UNJUSTIFIED

    For the first time in modern history, the House of 
Representatives has impeached a sitting Article III Judge who 
has never been charged with a crime. Indeed, it has been more 
than 74 years since the House of Representatives has brought 
Articles of Impeachment against a judge that were not preceded 
by that judge's indictment in the criminal courts. The Articles 
of Impeachment brought against Judge Porteous are also 
unprecedented in two additional ways. First, this is the only 
time since the ratification of the Constitution that the House 
of Representatives has brought Articles of Impeachment against 
a judge after the Executive Branch, having conducted a thorough 
investigation, has declined to prosecute. Second, it is the 
only time in the same period that the House of Representatives 
has based an Article of Impeachment against a judge, or any 
other officer, upon allegations that pre-date his or her entry 
into federal office.
    These actions are unprecedented and they are also 
unjustified by the facts of this case. The four Articles of 
Impeachment do not allege a single offense that supports the 
conviction and removal of a sitting Article III Judge under the 
impeachment clause of the Constitution. Article II, Section 4 
of the Constitution provides that the civil officers shall be 
removed from office only upon ``Impeachment for, and Conviction 
of, Treason, Bribery or other high Crimes and Misdemeanors.'' 
The charges in the articles against Judge Porteous do not rise 
to the constitutionally required level of ``high Crimes and 
Misdemeanors.'' Indeed, in some instances, the Articles allege 
violations of the canons of judicial ethics or criticize Judge 
Porteous' handling of matters before the Court. While Judge 
Porteous vehemently denies violating those canons or 
mishandling matters, noncriminal ethical violations or 
incorrect decisions have never been found to be a sufficient 
basis for conviction and removal from office. Such issues 
simply do not rise to the level of ``high Crimes and 
Misdemeanors'' as contemplated by the Framers. To the extent 
that a trial on the Articles in this case is permitted to 
convert--in contravention of both the Constitution and 
impeachment precedent--such acts into grounds for removal of an 
Article III Judge, it will set a new standard. A standard that 
treads deeply and dangerously into the realm of an independent 
judiciary that was at the very core of the Framers' vision of 
three co-equal branches of government.
    In devising the three branches, the Framers divided the 
ability to impeach and remove Executive and Judicial Branch 
officers between the House of Representatives and the Senate. 
By doing so, the Framers, through the Constitution, empowered 
the House to allege the standard for impeachment based upon the 
language of the impeachment clause. But history has shown the 
power to impeach is not the power to remove. The power to try 
impeachments and remove officers upon conviction was vested 
solely in the Senate. It is the Senate--a uniquely deliberative 
body, free from the passions and prejudices of the majority--
that sits in judgment and determines whether a given Article of 
Impeachment is sufficient, both legally and factually, to 
justify the removal of an Article III Judge.
    In striking this careful balance, the Framers made clear 
that the trial and removal process is not one that should 
embrace unprecedented or novel impeachments. In vesting the 
power in the Senate, the Framers' intent was that the process 
would not be exercised easily or quickly, but carefully and 
deliberately. The Framers, through the Constitution, positioned 
the Senate along the path between the possibility of ill-
considered and novel uses of the power to impeach and the 
decision to remove, confident that the Senate would stand as a 
safeguard against removal when constitutional standards had not 
been met. The Articles of Impeachment returned by the House are 
unprecedented, unjustified, and fail to meet the 
constitutionally required standard. Accordingly, Judge 
Porteous, in answer, asks the Senate to fulfill its 
constitutionally mandated role by dismissing the articles or, 
alternatively, acquitting him of the charges.

                  General Denial of Facts Not Admitted

    Judge Porteous denies each and every material allegation of 
the four Articles of Impeachment not specifically admitted in 
this ANSWER.

                               Article I

                          ANSWER TO ARTICLE I

    Without waiving his affirmative defenses, Judge Porteous 
admits that he presided as a United States District Judge over 
the Lifemark Hospitals of Louisiana, Inc. v. Liljeberg 
Enterprises litigation and that on October 17, 1996, he denied 
a motion seeking to recuse him from presiding over the case. 
Judge Porteous denies that he engaged in any corrupt conduct in 
connection with his handling of the litigation or in denying 
the motion for recusal. Judge Porteous denies that he 
intentionally made any misleading statements during the recusal 
hearing. Judge Porteous also denies engaging in a corrupt 
scheme of any sort with Jacob Amato, Jr. and Robert Creely and 
that he, at any time, deprived the parties or the public of the 
right to the honest services of his office. Judge Porteous 
further denies that he engaged in any corrupt conduct after the 
bench trial in Lifemark Hospitals of Louisiana, Inc. v. 
Liljeberg Enterprises or at any time while the case was under 
advisement.

                 FIRST AFFIRMATIVE DEFENSE TO ARTICLE I

    Article I does not allege an offense that supports the 
conviction and removal of a sitting Article III United States 
District Judge under the impeachment clause of the 
Constitution. Article II, Section 4 of the Constitution 
provides that the civil officers shall be removed from office 
only upon ``Impeachment for, and Conviction of, Treason, 
Bribery or other high Crimes and Misdemeanors.'' The charges in 
the articles against Judge Porteous do not rise to the 
constitutionally required level of ``high Crimes and 
Misdemeanors.'' Because Article I does not meet the rigorous 
constitutional standard for conviction and removal, it should 
be dismissed.

                SECOND AFFIRMATIVE DEFENSE TO ARTICLE I

    Article I is unconstitutionally vague. No reasonable person 
could know what specific charges are being leveled against 
Judge Porteous or what allegations rise to the level of ``high 
Crimes and Misdemeanors'' as required by the Constitution. In 
essence, Article I alleges that Judge Porteous took several 
judicial actions while presiding as a United States District 
Judge in Lifemark Hospitals of Louisiana, Inc. v. Liljeberg 
Enterprises, including failing to grant a recusal motion and 
failing to disclose certain facts. In doing so, the Article 
alleges that Judge Porteous ``deprived the parties and the 
public of the right to the honest services of his office.'' 
This ``deprivation of the right to honest services'' language 
is borrowed from Title 18, United States Code, Section 1346, a 
statute that is fraught with vagueness concerns. Indeed, its 
constitutional viability is currently pending before the United 
States Supreme Court in a series of cases. See Weyhrauch v. 
United States, No. 08-1196; Black v. United States, No. 08-876; 
and Skilling v. United States, No. 08-1394. The inclusion of 
this standard, as well as the nonspecific allegations regarding 
the allegedly improper judicial actions taken by Judge 
Porteous, render Article I unconstitutionally vague.
    It is a fundamental principle of our law and the 
Constitution that a person has a right to know what specific 
charges he is facing. Without such notice, no one can prepare 
the defense to which every person is entitled. The law and the 
Constitution also require that the charges provide adequate 
notice to jurors so they may know the basis for the vote they 
must make. Without a definite and specific identification of 
specific ``high Crime and Misdemeanor'' upon which the Article 
of Impeachment is grounded, a trial becomes a moving target for 
the accused.
    Article I fails to provide the required definite and 
specific identification. As an article of impeachment, it is 
constitutionally defective and should be dismissed.

                 THIRD AFFIRMATIVE DEFENSE TO ARTICLE I

    Article I is fatally flawed because it charges multiple 
instances of allegedly corrupt conduct in a single article. The 
Constitution provides that ``no person shall be convicted 
without the Concurrence of two thirds of the Members present.'' 
Senate Rule XXIII provides that ``an article of impeachment 
shall not be divisible for the purpose of voting thereon at any 
time during the trial.''
    Despite these clear pronouncements, the House of 
Representatives, in Article I, has alleged a series of 
allegedly wrongful acts. In doing so, the House of 
Representatives has returned an Article of Impeachment which 
might permit a Senator to vote for impeachment if he or she 
finds that Judge Porteous committed even a single allegedly 
wrongful act, even where two-thirds of the Senators do not 
agree on which wrongful act was committed. This creates the 
very real possibility that conviction could occur even though 
Senators were in wide disagreement as to the alleged wrong 
committed. The structure of Article I presents the possibility 
that Judge Porteous could be convicted even though he would 
have been acquitted if separate votes were taken on each 
allegedly wrongful acts included in the article. As written, 
Article I does not require the constitutionally required number 
of Senators to agree on the specific conduct forming the basis 
for conviction and removal. By charging multiple wrongs in one 
article, the House of Representatives has made it impossible 
for the Senate to comply with the Constitutional mandate that 
any conviction be by the concurrence of two-thirds of the 
members. Accordingly, Article I should fail.

                FOURTH AFFIRMATIVE DEFENSE TO ARTICLE I

    Article I was returned by the House of Representatives in 
violation of Judge Porteous' constitutional rights in that it 
is based, in part, upon his compelled testimony provided under 
a grant of immunity. Because the process of impeachment, 
conviction and removal is a quasi-criminal one and under the 
circumstances here, Judge Porteous has constitutional rights 
that are violated by the use of his prior compelled, immunized 
testimony, Article I must be dismissed. Further, because the 
immunity grant by Judge Edith Jones, Chief Judge of the Fifth 
Circuit Court of Appeals and Chair of the Special Committee of 
the Judicial Conference of the Fifth Circuit, was not proper 
under the immunity statute, the compelled testimony was wrongly 
procured and any Article of Impeachment based upon that 
testimony must be dismissed.

                               Article II

                          ANSWER TO ARTICLE II

    Without waiving his affirmative defenses, Judge Porteous 
denies that he engaged in a longstanding pattern of corrupt 
conduct demonstrating his unfitness to serve as a United States 
District Court Judge as alleged in Article II. Judge Porteous 
further denies that he improperly set aside or expunged felony 
convictions for two Marcotte employees. Judge Porteous also 
denies that he at any time took any action in his capacity as a 
United States District Judge that related in any way to the 
Marcottes or their business interests.

                FIRST AFFIRMATIVE DEFENSE TO ARTICLE II

    Article II does not allege an offense that supports the 
conviction and removal of a sitting Article III United States 
District Judge under the impeachment clause of the 
Constitution. Article II, Section 4 of the Constitution 
provides that the civil officers shall be removed from office 
only upon ``Impeachment for, and Conviction of, Treason, 
Bribery or other high Crimes and Misdemeanors.'' The charges in 
the articles against Judge Porteous do not rise to the 
constitutionally required level of ``high Crimes and 
Misdemeanors.'' Because Article II does not meet the rigorous 
constitutional standard for conviction and removal, it should 
be dismissed.

                SECOND AFFIRMATIVE DEFENSE TO ARTICLE II

    Article II is unconstitutionally vague. No reasonable 
person could know what specific charges are being leveled 
against Judge Porteous or what allegations rise to the level of 
``high Crimes and Misdemeanors'' as required by the 
Constitution. Article II alleges that Judge Porteous engaged in 
certain corrupt actions prior to his appointment and 
confirmation to the position of Un[it]ed States District Judge. 
Article II makes no specific allegations concerning actions 
taken by Judge Porteous while on the federal bench. Indeed, the 
only allegations concerning Judge Porteous tenure on the 
federal bench is that he in some unidentified way ``used the 
power and prestige of his office to assist the Marcottes in 
forming relationships with State judicial officers and 
individuals important to the Marcottes' business.'' The 
vagueness problem here cannot be overstated. It is simply not 
possible to begin to defend against this type of allegation. It 
is wholly lacking in any factual basis and clearly fails to 
frame a set of facts that amount to ``high Crimes and 
Misdemeanors.''
    As we set forth in the SECOND AFFIRMATIVE DEFENSE TO 
ARTICLE I, it is a fundamental principle of our law and the 
Constitution that a person has a right to know what specific 
charges he is facing. Without such notice, no one can prepare 
the defense to which every person is entitled. The law and the 
Constitution also require that the charges provide adequate 
notice to jurors so they may know the basis for the vote they 
must make. Without a definite and specific identification of 
specific ``high Crime and Misdemeanor'' upon which the Article 
of Impeachment is grounded, a trial becomes a moving target for 
the accused.
    Article II fails to provide the required definite and 
specific identification. As an article of impeachment, it is 
constitutionally defective and should be dismissed.

                THIRD AFFIRMATIVE DEFENSE TO ARTICLE II

    For the reasons set forth in the THIRD AFFIRMATIVE DEFENSE 
TO ARTICLE I, Article II is constitutionally defective because 
it charges multiple alleged wrongs in a single article, which 
makes it impossible for the Senate to comply with the 
Constitutional mandate that any conviction be by the 
concurrence of the two-thirds of the members. Accordingly, 
Article II should fail.

                FOURTH AFFIRMATIVE DEFENSE TO ARTICLE II

    Article II cannot support the conviction and removal of an 
Article III United States District Judge because the alleged 
conduct preceded Judge Porteous' service as a United States 
District Judge. The constitutional impeachment mechanism 
provides a procedure to remove a judge for the commission of 
``high Crimes and Misdemeanors'' while in federal office. The 
impeachment precedents do not provide a single example of an 
Article of Impeachment that has ever been based upon conduct 
that allegedly occurred prior to the impeached officer's entry 
into federal office. In contrast, the precedents suggest that 
while the House of Representatives may have investigated such 
allegations, that such conduct has never provided the basis for 
an impeachment and, significantly, the House has, on occasion, 
refused to take action because the allegations preceded the 
officer's entry into federal service. Moreover, while Judge 
Porteous contends that any attempt to use Article III's ``good 
behaviour'' clause to lower the standard necessary to impeach a 
federal judge is unsupported by the Constitution's impeachment 
clause, the House has clearly applied that lower standard in 
returning the four Articles of Impeachment. To the extent that 
the House has relied on the ``good behaviour'' clause, that 
clause states that judges ``shall hold their offices during 
good behaviour'' and clearly relates to a judge's conduct while 
in federal judicial office. Because the allegations of Article 
II relate to a period prior to Judge Porteous taking the 
federal bench, Article II must be dismissed.

                              Article III


                         ANSWER TO ARTICLE III

    Without waiving his affirmative defenses, Judge Porteous 
denies that he knowingly and intentionally made material false 
statements and representatives in connection with his personal 
bankruptcy or that he knowingly and intentionally repeatedly 
violated a court order in his bankruptcy case.

                FIRST AFFIRMATIVE DEFENSE TO ARTICLE III

    Article III does not allege an offense that supports the 
conviction and removal of a sitting Article III United States 
District Judge under the impeachment clause of the 
Constitution. Article II, Section 4 of the Constitution 
provides that the civil officers shall be removed from office 
only upon ``Impeachment for, and Conviction of, Treason, 
Bribery or other high Crimes and Misdemeanors.'' The charges in 
the articles against Judge Porteous do not rise to the 
constitutionally required level of ``high Crimes and 
Misdemeanors.'' Because Article III does not meet the rigorous 
constitutional standard for conviction and removal, it should 
be dismissed.

               SECOND AFFIRMATIVE DEFENSE TO ARTICLE III

    Article III is unconstitutionally vague. No reasonable 
person could know what specific charges are being leveled 
against Judge Porteous or what allegations rise to the level of 
``high Crimes and Misdemeanors'' as required by the 
Constitution. In essence, Article III alleges a number of 
actions taken by Judge Porteous in connection with his personal 
bankruptcy, but is unclear as to the specific acts that are 
claimed to violate the constitutional standard. Moreover, it 
also does not clearly state the specific allegations regarding 
what transaction Judge Porteous concealed during the bankruptcy 
process or what new debts he allegedly incurred.
    As we set forth in the SECOND AFFIRMATIVE DEFENSE TO 
ARTICLE I, it is a fundamental principle of our law and the 
Constitution that a person has a right to know what specific 
charges he is facing. Without such notice, no one can prepare 
the defense to which every person is entitled. The law and the 
Constitution also require that the charges provide adequate 
notice to jurors so they may know the basis for the vote they 
must make. Without a definite and specific identification of 
specific ``high Crime and Misdemeanor'' upon which the Article 
of Impeachment is grounded, a trial becomes a moving target for 
the accused.
    Article III fails to provide the required definite and 
specific identification. As an article of impeachment, it is 
constitutionally defective and should be dismissed.

                THIRD AFFIRMATIVE DEFENSE TO ARTICLE III

    For the reasons set forth in the THIRD AFFIRMATIVE DEFENSE 
TO ARTICLE I, Article III is constitutionally defective because 
it charges multiple alleged wrongs in a single article, which 
makes it impossible for the Senate to comply with the 
Constitutional mandate that any conviction be by the 
concurrence of the two-thirds of the members. Accordingly, 
Article III should fail.

               FOURTH AFFIRMATIVE DEFENSE TO ARTICLE III

    For the reasons set forth in the FOURTH AFFIRMATIVE DEFENSE 
TO ARTICLE I, Article III was returned by the House of 
Representatives in violation of Judge Porteous' constitutional 
rights in that it is based, in part, upon his compelled 
testimony provided under a grant of immunity. Because the 
process of impeachment, conviction and removal is a quasi-
criminal one and under the circumstances here, Judge Porteous 
has constitutional rights that are violated by the use of his 
prior compelled, immunized testimony, Article I must be 
dismissed. Further, because the immunity grant by Judge Edith 
Jones, Chief Judge of the Fifth Circuit Court of Appeals and 
Chair of the Special Committee of the Judicial Conference of 
the Fifth Circuit, was not proper under the immunity statute, 
the compelled testimony was wrongly procured and any Article of 
Impeachment based upon that testimony must be dismissed.

                FIFTH AFFIRMATIVE DEFENSE TO ARTICLE III

    The allegations in Article III do not rise to the level of 
``high Crimes and Misdemeanors'' because they address purely 
personal conduct that is not criminal. Prior impeachment 
precedent has never before sought to convict and remove a judge 
from office based upon personal non-criminal conduct. The very 
nature of the impeachment process is focused first and foremost 
upon the official actions of judges. Where allegations in the 
Articles of Impeachment address non-official personal acts by 
judges, longstanding precedent has limited ``high Crimes and 
Misdemeanors'' to those personal acts that are also indictable 
offenses. Article III ignores this precedent in seeking to 
convict and remove Judge Porteous from office for non-official, 
non-criminal acts. While it is possible that the House of 
Representatives would claim that the actions taken in relation 
to the personal bankruptcy were indictable offenses, this claim 
would conflict with the multi-year investigation of the United 
States Department of Justice which concluded that prosecution 
was not warranted in light of the concern that the issues 
related to the bankruptcy were not material. It would also 
conflict with the criminal bankruptcy statu[t]es, which require 
that any alleged false statement not be made simply knowingly 
or willfully, but fraudulently, before criminal liability may 
attach to such conduct. In framing Article III, the House of 
Representatives is seeking to convict and remove a sitting 
United States District Judge based upon a lowered standard, one 
that does not constitute ``high Crimes and Misdemeanors,'' and 
one that has never before provided a basis for impeachment, 
much less conviction and removal from office. Article III of 
the Articles of Impeachment should be dismissed.

                               Article IV


                          ANSWER TO ARTICLE IV

    Without waiving his affirmative defenses, Judge Porteous 
denies that he knowingly made material false statements in 
order to obtain the office of United States District Court 
Judge.

                FIRST AFFIRMATIVE DEFENSE TO ARTICLE IV

    Article IV does not allege an offense that supports the 
conviction and removal of a sitting Article III United States 
District Judge under the impeachment clause of the 
Constitution. Article II, Section 4 of the Constitution 
provides that the civil officers shall be removed from office 
only upon ``Impeachment for, and Conviction of, Treason, 
Bribery or other high Crimes and Misdemeanors.'' The charges in 
the articles against Judge Porteous do not rise to the 
constitutionally required level of ``high Crimes and 
Misdemeanors.'' Because Article IV does not meet the rigorous 
constitutional standard for conviction and removal, it should 
be dismissed.

                SECOND AFFIRMATIVE DEFENSE TO ARTICLE IV

    Article IV is unconstitutionally vague. No reasonable 
person could know what specific charges are being leveled 
against Judge Porteous or what allegations rise to the level of 
``high Crimes and Misdemeanors'' as required by the 
Constitution. In essence, Article IV alleges that Judge 
Porteous gave false answers on various forms that were 
presented in connection with the background investigation that 
was used to evaluate his appointment and confirmation as a 
United States District Judge. However, it is not clear whether 
Article IV contends that simply providing a single one of the 
alleged false statements is a ``high Crime or Misdemeanor'' or 
whether the ``high Crime or Misdemeanor'' is based upon all of 
the acts alleged, i.e., several alleged false statements and 
other conduct alleged. Moreover, the nature of the questions on 
the forms that are the focus of this Article themselves add to 
the vagueness problem.
    As we set forth in the SECOND AFFIRMATIVE DEFENSE TO 
ARTICLE I, it is a fundamental principle of our law and the 
Constitution that a person has a right to know what specific 
charges he is facing. Without such notice, no one can prepare 
the defense to which every person is entitled. The law and the 
Constitution also require that the charges provide adequate 
notice to jurors so they may know the basis for the vote they 
must make. Without a definite and specific identification of 
specific ``high Crime and Misdemeanor'' upon which the Article 
of Impeachment is grounded, a trial becomes a moving target for 
the accused.
    Article IV fails to provide the required definite and 
specific identification. As an article of impeachment, it is 
constitutionally defective and should be dismissed.

                THIRD AFFIRMATIVE DEFENSE TO ARTICLE IV

    For the reasons set forth in the THIRD AFFIRMATIVE DEFENSE 
TO ARTICLE I, Article IV is constitutionally defective because 
it charges multiple instances of alleged acts of making false 
statements in one article, which makes it impossible for the 
Senate to comply with the Constitutional mandate that any 
conviction be by the concurrence of the two-thirds of the 
members. Accordingly, Article IV should fail.

                FOURTH AFFIRMATIVE DEFENSE TO ARTICLE IV

    Article IV cannot support the conviction and removal of an 
Article III United States District Judge because the alleged 
conduct preceded Judge Porteous' service as a United States 
District Judge. The constitutional impeachment mechanism 
provides a procedure to remove a judge for the commission of 
``high Crimes and Misdemeanors'' while in federal office. The 
impeachment precedents do not provide a single example of an 
Article of Impeachment that has ever been based upon conduct 
that allegedly occurred prior to the impeached officer's entry 
into federal office. In contrast, the precedents suggest that 
while the House of Representatives may have investigated such 
allegations, that such conduct has never provided the basis for 
an impeachment and, significantly, the House has, on occasion, 
refused to take action because the allegations preceded the 
officer's entry into federal service. Moreover, while Judge 
Porteous contends that any attempt to use Article III's ``good 
behaviour'' clause to lower the standard necessary to impeach a 
federal judge is unsupported by the Constitution's impeachment 
clause, the House has clearly applied that lower standard in 
returning the four Articles of Impeachment. To the extent that 
the House has relied on the ``good behaviour'' clause, that 
clause states that judges ``shall hold their offices during 
good behaviour'' and clearly relates to a judge's conduct while 
in federal judicial office. Because the allegations of Article 
IV relate to a period prior to Judge Porteous taking the 
federal bench, Article IV must be dismissed.
            Respectfully submitted,
                                   Richard W. Westling,
                                   Chelsea S. Rice,
                                   Jackson B. Boyd,
                                   Anthony J. Burba,
                                           Ober, Kaler, Grimes & 
                                               Shriver, P.C.
                                           1401 H Street, NW.
                                           Suite 500
                                           Washington, D.C. 20005.

                                   Samuel S. Dalton,
                                           Attorney at Law,
                                           2001 Jefferson Highway
                                           P.O. Box 10501
                                           Jefferson, LA 70181-0501.

                                   Remy Voisin Starns,
                                           Attorney At Law PLLC
                                           2001 Jefferson Highway
                                           P.O. Box 10501
                                           Jefferson, LA 70181-0501.

                                   Counsel for G. Thomas Porteous, Jr.
                                           United States District Judge 
                                               for the Eastern District 
                                               of Louisiana.

    Submitted: April 7, 2010.
 VI. AMENDED REPLICATION OF THE HOUSE OF REPRESENTATIVES TO THE ANSWER 
       OF G. THOMAS PORTEOUS, JR., TO THE ARTICLES OF IMPEACHMENT

    The House of Representatives, through its Managers and 
counsel, respectfully replies to the Answer to Articles of 
Impeachment as follows:

                        Response to the Preamble

    Judge Porteous in his Answer to the Articles of 
Impeachment, denies certain of the allegations and makes what 
are primarily technical arguments as to the charging language 
that do not address the factual substance of the allegations. 
However, it is in Judge Porteous's Preamble that he sets forth 
his real defense and, without denying he committed the conduct 
that is alleged in the Articles of Impeachment, insists that 
nevertheless he should not be removed from Office,
    At several points in his Preamble, Judge Porteous notes 
that he was not criminally prosecuted by the Department of 
Justice, the implication being that the House and the Senate 
should abdicate their Constitutionally assigned roles of 
deciding whether the conduct of a Federal judge rises to the 
level of a high crime or misdemeanor and warrants the Judge's 
removal, and should instead defer to the Department of Justice 
on this issue. Judge Porteous maintains that impeachment and 
removal may only proceed upon conduct that resulted in a 
criminal prosecution, no matter how corrupt the conduct at 
issue, or what reasons explain the Department's decision not to 
prosecute. Judge Porteous provides no support for this 
contention because there is none--that is not what the 
Constitution provides.
    Indeed, the Senate has by its prior actions made it clear 
that the decision as to whether a Judge's conduct warrants his 
removal from Office is the Constitutional prerogative of the 
Senate--not the Department of Justice--and the existence of a 
successful (or even an unsuccessful) criminal prosecution is 
irrelevant to the Senate's decision. The Senate has convicted 
and removed a Federal judge who was acquitted at a criminal 
trial (Judge Alcee Hastings). The Senate has also convicted a 
Federal judge for personal financial misconduct (Judge Harry 
Claiborne) while at the same time acquitting that same Judge of 
the Article that was based specifically on the fact of his 
criminal conviction.\1\ Thus, Judge Porteous's repeated 
references to what the Department of Justice did or did not do 
adds nothing to the Senate's evaluation of the charges or the 
facts in this case.\2\
---------------------------------------------------------------------------
    \1\Judge Harry E. Claiborne was acquitted of Article III, charging 
that he ``was found guilty by a twelve-person jury'' of criminal 
violations of the tax code, and that ``a judgement of conviction was 
entered against [him].'' See ``Impeachment of Harry E. Claiborne,'' H. 
Res. 471, 99th Cong., 2d Sess. (1986) (Articles of Impeachment); 132 
Cong. Rec. S15761 (daily ed. Oct. 9, 1986) (acquitting him on Article 
III).
    \2\Moreover, the Department of Justice's investigation hardly 
vindicated Judge Porteous. To the contrary, the Department viewed Judge 
Porteous's misconduct as so significant that it referred the matter to 
the Fifth Circuit for disciplinary review and potential impeachment, 
and set forth its findings in its referral letter.
---------------------------------------------------------------------------
    Further, according to Judge Porteous, pre-Federal bench 
conduct cannot be the basis of Impeachment, even if that 
conduct consisted of egregious corrupt activities that was 
beyond the reach of criminal prosecution because the statute of 
limitations had run, and even if Judge Porteous fraudulently 
concealed that conduct from the Senate and the White House at 
the time of his nomination and confirmation. There is nothing 
in the Constitution to support this contention, and it flies in 
the face of common sense. The Senate is entitled to conclude 
that Judge Porteous's pre-Federal bench conduct reveals him to 
have been a corrupt state judge with his hand out under the 
table to bail bondsmen and lawyers. Such conduct, which, as 
alleged in Articles I and II, continued into his Federal bench 
tenure, demonstrates that he is not fit to be a Federal judge.
    Finally, the notion that Judge Porteous is entitled to 
maintain a lifetime position of Federal judge that he obtained 
by acts that included making materially false statements to the 
United States Senate is untenable. Judge Porteous would turn 
the confirmation process into a sporting contest, in which, if 
he successfully were to conceal his corrupt background prior to 
the Senate vote and thereby obtain the position of a Federal 
judge, he is home free and the Senate cannot remove him.

                               Article I

    The House of Representatives denies each and every 
statement in the Answer to Article I that denies the acts, 
knowledge, intent or wrongful conduct charged against 
Respondent.

                       FIRST AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense and further 
states that Article I sets forth an impeachable offense as 
defined in the Constitution of the United States.

                       SECOND AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, namely, that 
Article I is vague. To the contrary, Article I sets forth 
several precise and narrow factual assertions associated with 
Judge Porteous's handling of a civil case (the Liljeberg 
litigation), including allegations that Judge Porteous ``denied 
a motion to recuse himself from the case, despite the fact that 
he had a corrupt financial relationship with the law firm of 
Amato & Creely, P.C. which had entered the case to represent 
Liljeberg'' and that while that case was pending, Judge 
Porteous ``solicited and accepted things of value from both 
Amato and his law partner Creely, including a payment of 
thousands of dollars in cash.'' There is no vagueness 
whatsoever in these allegations. Article I's allegation that 
Judge Porteous deprived the public and the Court of Appeals of 
his ``honest services''--a phrase to which Judge Porteous 
raises a particular objection--could not be more clear and free 
of ambiguity as used in this Article, and accurately describes 
Judge Porteous's dishonesty in handling a case, including his 
distortion of the factual record so that his ruling on the 
recusal motion was not capable of appellate review.\3\
---------------------------------------------------------------------------
    \3\Judge Porteous treats Article I as if it alleges the criminal 
offense of ``honest services fraud,'' in violation of Title 18, United 
States Code, Section 1346, and that because the term ``honest 
services'' has been challenged as vague in the criminal context, the 
term is likewise vague as used in Article I. Despite Judge Porteous's 
suggestion to the contrary, Article I does not allege a violation of 
the ``honest services'' statute. Moreover, it could hardly be contended 
that proof that Judge Porteous acted dishonestly in the performance of 
his official duties does not go to the very heart of the Senate's 
determination of whether he is fit to hold office.
---------------------------------------------------------------------------

                       THIRD AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of the purported affirmative defense that Article I 
charges more than one offense. The plain reading of Article I 
is that Judge Porteous committed misconduct in his handling of 
the Liljeberg case by means of a course of conduct involving 
his financial relationships with the attorneys in that case and 
his failure to disclose those relationships or take other 
appropriate judicial action. The separate acts set forth in 
Article I constitute part of a single unified scheme involving 
Judge Porteous's dishonesty in handling Liljeberg. Further, the 
charges in this Article are fully consistent with impeachment 
precedent.\4\
---------------------------------------------------------------------------
    \4\The respective Articles of Impeachment against Judges Halsted L. 
Ritter, Harold Louderback, and Robert W. Archbald each set forth 
lengthy descriptions of judicial misconduct arising from improper 
financial relationships between those judges and the private parties. 
These consist of detailed narration specifying numerous discrete acts. 
See ``Impeachment of Judge Halsted L. Ritter,'' H. Res. 422, 74th 
Cong., 2d Sess. (March 2, 1936) and ``Amendments to Articles of 
Impeachment Against Halsted L. Ritter,'' H. Res. 471, 74th Cong., 2d 
Sess. (March 30, 1936), reprinted in ``Impeachment, Selected Materials, 
House Comm. on the Judiciary,'' Comm. Print (1973) [hereinafter ``1973 
Committee Print''] at 188-197 (H. Res. 422), 198-202 (H. Res. 471); 
[``Articles of Impeachment against Judge Robert W. Archbald''], H. Res. 
622, 62d Cong., 2d Sess. (1912), 48 Cong Rec. (House) July 8, 1912 
(8705-08), reprinted in 1973 Committee Print at 176; and [``Articles of 
Impeachment against George W. English,''] Cong. Rec. (House), Mar. 25, 
1926 (6283-87), reprinted in 1973 Committee Print at 162.
---------------------------------------------------------------------------

                       FOURTH AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, which, in 
effect, seeks to suppress the statements of a highly educated 
and experienced Federal judge, made under oath, before other 
Federal judges. Judge Porteous was provided a grant of immunity 
in connection with his Fifth Circuit Hearing testimony, and the 
immunity order provided that his testimony from that proceeding 
could not be used against him in ``any criminal case.'' Simply 
put, an impeachment trial is not a criminal case.\5\ 
Accordingly, there is simply no credible basis to argue that 
the Senate should not consider Judge Porteous's immunized Fifth 
Circuit testimony.
---------------------------------------------------------------------------
    \5\The Constitution makes it clear that impeachment was not 
considered by the Framers to be a criminal proceeding. It provides: 
``Judgment in Cases of Impeachment shall not extend further than to 
removal from Office, and disqualification to hold and enjoy any Office 
of honor, Trust or Profit under the United States: but the Party 
convicted shall nevertheless be liable and subject to Indictment, 
Trial, Judgment and Punishment, according to Law.'' U.S. Const., Art. 
3, cl. 7. See also, United States v. Nixon. 506 U.S. 224, 234 (1993) 
(``There are two additional reasons why the Judiciary, and the Supreme 
Court in particular, were not chosen to have any role in impeachments. 
First, the Framers recognized that most likely there would be two sets 
of proceedings for individuals who commit impeachable offenses--the 
impeachment trial and a separate criminal trial. In fact, the 
Constitution explicitly provides for two separate proceedings. . . . 
The Framers deliberately separated the two forums to avoid raising the 
specter of bias and to ensure independent judgments . . .'').
---------------------------------------------------------------------------

                          Answer to Article II

    The House of Representatives denies each and every 
statement in the Answer to Article II that denies the acts, 
knowledge, intent or wrongful conduct charged against 
Respondent.

                       FIRST AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense and further 
states that Article II sets forth an impeachable offense as 
defined in the Constitution of the United States.

                       SECOND AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, namely, that 
the Article is vague. To the contrary, Article II sets forth 
several precise and narrow factual assertions associated with 
Judge Porteous's relationship with the Marcottes--both prior to 
and subsequent to Judge Porteous taking the Federal bench. 
Article II alleges with specificity the things of value given 
to Judge Porteous over time and identifies the judicial or 
other acts taken by Judge Porteous for the benefit of the 
Marcottes and their business.

                       THIRD AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, namely, that 
the Article improperly charges multiple offenses. The plain 
reading of Article II is that Judge Porteous engaged in a 
corrupt course of conduct whereby, over time, he solicited and 
accepted things of value from the Marcottes, and, in return, he 
took judicial acts or other acts while a judge to benefit the 
Marcottes and their business.

                       FOURTH AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, namely, that 
Article II improperly charges pre-Federal bench conduct as a 
basis for impeachment. First, Article II plainly alleges that 
Judge Porteous's corrupt relationship with the Marcottes 
continued while he was a Federal Judge. Second, Judge 
Porteous's assertion that pre-Federal bench conduct may not 
form a basis for impeachment finds no support in the 
Constitution and is not supported by any other sound legal or 
logical basis.\6\ As a factual matter, it is especially 
appropriate for the Senate to consider Judge Porteous's pre-
Federal bench corrupt relationship with the Marcottes where it 
was affirmatively concealed from the Senate in the confirmation 
process, where it involved conduct as a judicial officer 
directly bearing on whether he was fit to hold a Federal 
judicial office, and where that conduct, having now been 
exposed, brings disrepute and scandal to the Federal bench.
---------------------------------------------------------------------------
    \6\As but one example, if the pre-Federal bench conduct consisted 
of treason, there could be no credible contention that such conduct 
would not provide a basis for impeachment.
---------------------------------------------------------------------------

                              Article III

    The House of Representatives denies each and every 
statement in the Answer to Article III that denies the acts, 
knowledge, intent or wrongful conduct charged against 
Respondent.

                       FIRST AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense and further 
states that Article III sets forth an impeachable offense as 
defined in the Constitution of the United States.

                       SECOND AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, which alleges 
in substance that the allegations in Article III are vague. To 
the contrary, Article III sets forth several specific 
allegations associated with Judge Porteous's conduct in his 
bankruptcy proceedings. There is no credible contention that 
Judge Porteous cannot understand what he is charged with in 
this Article.

                       THIRD AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, which 
alleges, in substance, that Article III charges more than one 
offense. The plain reading of Article III is that Judge 
Porteous committed misconduct in his bankruptcy proceeding by 
making a series of false statements and representations, and by 
incurring new debt in violation of a Federal Bankruptcy Court 
order. This Article alleges a single unified fraud scheme, with 
the purpose of deceiving the bankruptcy court and creditors as 
to his assets and his financial affairs, so that Judge Porteous 
could enjoy undisclosed wealth and income for personal 
purposes--including gambling.

                       FOURTH AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, which, in 
effect, seeks to suppress the statements of a highly educated 
and experienced Federal judge, made under oath, before other 
Federal judges. Judge Porteous was provided a grant of immunity 
in connection with his Fifth Circuit Hearing testimony, 
effectively eliminating the possibility that any of that 
testimony could be used against him in any criminal case. An 
impeachment trial is not a criminal case. There is simply no 
credible basis to argue that the Senate should not consider 
Judge Porteous's immunized Fifth Circuit testimony.

                       FIFTH AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense--which does 
not take issue with the proposition that Judge Porteous 
committed misconduct in a Federal judicial bankruptcy 
proceeding, but contends only that the acts as alleged do not 
warrant impeachment. First, this is not an affirmative defense. 
It is up to the Senate to decide whether the facts surrounding 
the bankruptcy warrant impeachment.
    Second, the Senate has in fact removed a judge for personal 
financial misconduct, and in 1986 convicted Federal Judge Harry 
Claiborne and removed him from office for evading taxes. It is 
significant that the Senate did not convict Judge Claiborne for 
the crime of evading taxes. Rather, the Senate acquitted Judge 
Claiborne of the one Article that charged him with having 
committed and having been convicted of a crime.
    Third, what the Department of Justice may consider material 
for purposes of a criminal prosecution has nothing to do with 
what the Senate may deem to be material for purposes of 
determining whether Judge Porteous should be removed from 
Office--an Office which requires that he oversee bankruptcy 
cases and administer and enforce the oath to tell the truth.\7\
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    \7\It should be noted that Judge Porteous has testified and cross-
examined witnesses at the Fifth Circuit Hearing on the subject of his 
bankruptcy, and the House therefore possesses evidence that was 
unavailable to the Department of Justice.
---------------------------------------------------------------------------

                               Article IV

    The House of Representatives denies each and every 
statement in the Answer to Article IV that denies the acts, 
knowledge, intent or wrongful conduct charged against 
Respondent.

                       FIRST AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense and further 
states that Article IV sets forth an impeachable offense as 
defined in the Constitution of the United States.

                       SECOND AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, which alleges 
the Article is vague. The allegations sets forth in Article IV 
are specific and precise. In fact, Judge Porteous's description 
of the charge fairly characterizes the offense: ``In essence, 
Article IV alleges that Judge Porteous gave false answers on 
various forms that were presented in connection with the 
background investigation . . . .'' It is apparent, therefore, 
that Judge Porteous has a clear understanding of these 
allegations in Article IV, which specify the dates and 
circumstances when the statements were made, and the contents 
of the statements that are alleged to have been false. There is 
no credible contention that the Article IV does not provide 
Judge Porteous specific notice as to what this Article alleges.

                       THIRD AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense. The 
allegation sets forth in Article IV are specific and precise. 
They charge in substance that Judge Porteous made a series of 
false statements to conceal the fact of his improper and 
corrupt relationships with the Marcottes and with attorneys 
Creely and Amato in order to procure the position of United 
States District Court Judge. Charging these four false 
statements, all involving a single issue, in a single Article 
is consistent with precedent.\8\
---------------------------------------------------------------------------
    \8\As but one example, Article III of the Articles of Impeachment 
against Judge Walter Nixon charged that he concealed material facts 
from the Federal Bureau of Investigation and the Department of Justice 
by making six, specified, false statements on April 18, 1984 at an 
interview, and by making seven discrete false statements under oath to 
the Grand Jury. ``Impeachment of Walter L. Nixon, Jr.,'' H. Res. 87, 
101st Cong., 1st Sess. (1989) (Article III).
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                       FOURTH AFFIRMATIVE DEFENSE

    The House of Representatives denies each and every 
allegation of this purported affirmative defense, alleging that 
the Senate cannot impeach Judge Porteous based on pre-Federal 
bench conduct. First, Judge Porteous's assertion that pre-
Federal bench conduct may not form a basis for impeachment is 
not supported by the Constitution. Notwithstanding Judge 
Porteous's assertions to the contrary, the Constitution does 
not limit Congress from considering pre-Federal bench conduct 
in deciding whether to impeach, and there are compelling 
reasons for Congress to consider such conduct--especially where 
such conduct consists of making materially false statements to 
the Senate. The logic of Judge Porteous's position is that he 
cannot be removed by the Senate, even though the false 
statements he made to the Senate concealed dishonest behavior 
that goes to the core of his judicial qualifications and 
fitness to hold the Office of United States District Court 
Judge. The proposition that the Senate lacks power under these 
circumstances to remedy the wrong committed by Judge Porteous 
is simply untenable.
    Respectfully submitted.

              The United States House of Representatives,


                                   By

                                   Adam Schiff, Manager.
                                   Bob Goodlatte, Manager.
                                   Alan I. Baron, Special Impeachment 
                                       Counsel.

    Managers of the House of Representatives: Adam B. Schiff, 
Bob Goodlatte, Zoe Lofgren, Henry C. ``Hank'' Johnson, F. James 
Sensenbrenner, Jr.

    April 22, 2010.

                                  
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