[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
  TO CONSIDER POSSIBLE IMPEACHMENT OF UNITED STATES DISTRICT JUDGE G. 
                     THOMAS PORTEOUS, JR. (PART IV) 

=======================================================================

                                HEARING

                               BEFORE THE

                   TASK FORCE ON JUDICIAL IMPEACHMENT

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 15, 2009

                               __________

                           Serial No. 111-46

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
JUDY CHU, California                 TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

                   Task Force on Judicial Impeachment

                  ADAM B. SCHIFF, California, Chairman

SHEILA JACKSON LEE, Texas            BOB GOODLATTE, Virginia
WILLIAM D. DELAHUNT, Massachusetts   F. JAMES SENSENBRENNER, Jr., 
STEVE COHEN, Tennessee               Wisconsin
HENRY C. ``HANK'' JOHNSON, Jr.,      DANIEL E. LUNGREN, California
  Georgia                            J. RANDY FORBES, Virginia
PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
CHARLES A. GONZALEZ, Texas



























                            C O N T E N T S

                              ----------                              

                           DECEMBER 15, 2009

                                                                   Page

                           OPENING STATEMENTS

The Honorable Adam B. Schiff, a Representative in Congress from 
  the State of California, and Chairman, Task Force on Judicial 
  Impeachment....................................................     1
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Task Force on 
  Judicial Impeachment...........................................     2

                               WITNESSES

Mr. Charles G. Geyh, Professor, Maurer School of Law, Indiana 
  University
  Oral Testimony.................................................     4
  Prepared Statement.............................................     7
Mr. Akhil Reed Amar, Professor, Yale Law School
  Oral Testimony.................................................    17
  Prepared Statement.............................................    19
Mr. Michael J. Gerhardt, Professor, University of North Carolina 
  School of Law
  Oral Testimony.................................................    23
  Prepared Statement.............................................    26


  TO CONSIDER POSSIBLE IMPEACHMENT OF UNITED STATES DISTRICT JUDGE G. 
                     THOMAS PORTEOUS, JR. (PART IV)

                              ----------                              


                       TUESDAY, DECEMBER 15, 2009

                  House of Representatives,
                 Task Force on Judicial Impeachment
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Task Force met, pursuant to notice, at 10:38 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Adam B. 
Schiff (Chairman of the Task Force) presiding.
    Present: Representatives Schiff, Jackson Lee, Johnson, 
Pierluisi, Gonzalez, Sensenbrenner, Goodlatte, Lungren, and 
Gohmert.
    Staff Present: Alan Baron, Counsel; Harold Damelin, 
Counsel; Mark Dubester, Counsel; Jessica Klein, Staff 
Assistant; and Kirsten Konar, Counsel.
    Also Present: (Representing G. Thomas Porteous) Richard W. 
Westling, Esq., Ober Kaler, Attorneys at Law, Washington, DC 
20005-3324.
    Mr. Schiff. This hearing of the House Judiciary Task Force 
on Judicial Impeachment will now come to order.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing.
    I will now recognize myself for an opening statement.
    Today, the Task Force will continue its inquiry whether 
United States District Court Judge Thomas Porteous should be 
impeached by the U.S. House of Representatives. To date, the 
Task Force has held 4 days of hearings where testimony was 
taken regarding the following: allegations that Judge Porteous 
violated the public trust, law, and ethical canons by presiding 
over the case In re Liljeberg Enterprises, Inc.; by repeatedly 
making false and misleading statements, including the 
concealment of debts under oath and disregard of a bankruptcy 
court's orders; and by accepting things of value from the 
owners of a bail bonds company in Louisiana in exchange for 
access and assistance in his official capacity as a judge, 
including setting aside convictions.
    Today's hearing is part four in our series and will focus 
on whether Judge Porteous's conduct renders him unfit to hold 
office and provides a sufficient basis for impeachment.
    After our witnesses make their initial statements, Members 
will have the opportunity to ask questions under the 5-minute 
rule. Judge Porteous'scounsel will then be permitted to 
question the panel for 10 minutes, followed by a second round 
of Member questions, if necessary.
    I will now recognize my colleague, Mr. Goodlatte, the 
distinguished Ranking Member of the Task Force, for his opening 
remarks.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Article 3 of the Constitution provides that Federal judges 
are appointed for life and that they shall hold their offices 
during good behavior. Indeed, the Framers knew that an 
independent judiciary, free of political motivations, was 
necessary to the fair resolution of disputes and the fair 
administration of our laws. However, the Framers were also 
pragmatists and had the foresight to include checks against the 
abuse of independence and power that comes with a judicial 
appointment.
    Article I, section two, clause five of the Constitution 
grants the House of Representatives the sole power of 
impeachment. This is a very serious power that should not be 
undertaken lightly. However, if evidence emerges that an 
individual is abusing his judicial office, the integrity of the 
judicial system becomes compromised, and the House of 
Representatives has the duty to investigate the matter and take 
any appropriate actions to end the abuse and restore confidence 
in the judicial system.
    The Task Force on Judicial Impeachment has been conducting 
a detailed investigation of the alleged misconduct of Federal 
District Judge Thomas Porteous. The Task Force has also held a 
series of hearings to gather further evidence from those who 
have firsthand knowledge of Judge Porteous's conduct.
    Today, we will shift gears a little and hear from expert 
witnesses on the standards for impeachment, the standards of 
judicial conduct, and Judge Porteous's actions in relation to 
those standards. I look forward to hearing from the witnesses, 
and I thank you, Mr. Chairman, for holding this important 
hearing.
    Mr. Schiff. I thank the gentleman, who yields back.
    Would any other Member at this time like to make an opening 
statement?
    Okay. I want to welcome our witnesses today and thank them 
for their participation.
    Our first witness is Professor Charles Geyh of the Maurer 
School of Law, Indiana University. Professor Geyh received his 
law degree from the University of Wisconsin. Following 
graduation, he clerked for Judge Thomas Clark of the U.S. Court 
of Appeals for the Eleventh Circuit. Professor Geyh was then an 
associate at Covington & Burling and served as counsel to this 
very Committee. He has also served as special counsel to the 
Office of Legislative and Public Affairs at the Administrative 
Office of the U.S. Courts and as an advisor to then-Senator 
Joseph Biden, Jr., on the Senate confirmation of Justice Thomas 
to the Supreme Court.
    In 1991, Professor Geyh joined the field of academia at 
Widener University of Law. He began teaching at Indiana in 
1998, where he currently teaches courses on civil procedure, 
legal ethics, Federal courts, and the relationship between the 
judicial and legislative branches. Professor Geyh is the 
current director of the ABA Judicial Disqualification Project.
    He is also a co-author of Judicial Conduct and Ethics and 
the author of Preserving Public Confidence in the Courts in an 
Age of Individual Rights and Public Skepticism; Rescuing 
Judicial Accountability from the Realm of Political Rhetoric; 
Judicial Independence, Judicial Accountability, and the Role of 
Constitutional Norms in Congressional Regulation of the Courts, 
Courts, Congress, and the Constitutional Politics of 
Interbranch Restraint; and Informal Methods of Judicial 
Discipline.
    Our second witness is Professor Akhil Amar from Yale Law 
School. Professor Amar received both his undergraduate and law 
degrees from Yale University. While in law school, he served as 
an editor of the Yale Law Journal. Upon graduation, he clerked 
for future U.S. Supreme Court Justice Stephen Breyer while he 
sat on the U.S. Court of Appeals for the First Circuit.
    Professor Amar joined the faculty of Yale in 1985 and is 
currently the Sterling Professor of Law and Political Science 
at Yale University. In this capacity, he teaches constitutional 
law at both the undergraduate and law school levels. Professor 
Amar is also co-editor of Processes of Constitutional 
Decisionmaking, and the sole author of several other books, 
including The Constitutional and Criminal Procedures: First 
Principles; The Bill of Rights: Creation and Reconstruction; 
and America's Constitution: A Biography.
    Our final witness is Professor Michael Gerhardt of the 
University of North Carolina School of law. Professor Gerhardt 
graduated from Yale University, received his master's from the 
London School of Economics and his law degree from the 
University of Chicago. He served as a professor at William & 
Mary Law School for over a decade before joining the faculty of 
the University of North Carolina School of Law, where he 
currently teaches.
    Professor Gerhardt has been a visiting professor at the 
Cornell and Duke Law Schools and was a visiting fellow at 
Princeton University as a part of their James Madison Program 
in American Institutions and Ideals. Professor Gerhardt is 
frequently consulted as an expert on constitutional law by 
national media and has testified before Congress on several 
occasions, including as the only joint witness in the House 
Judiciary Committee's special hearing on the history of the 
Federal impeachment process for its consideration of the 
impeachment of President Clinton.
    He has also testified before this Committee regarding 
legislative proposals involving the judicial branch. He is the 
author of a number of works, including The Federal Impeachment 
Process: A Constitutional and Historical Analysis, as well as 
the co-author of three editions of the Constitutional Theory 
Reader and over 50 law review publications.
    Given the gravity of the issues we are discussing today, we 
would appreciate it if you would take an oath before you begin 
your testimony.
    I will now swear the witnesses. If you would each please 
rise and raise your right hands.
    [Witnesses sworn.]
    Mr. Schiff. Thank you. Please be seated.
    And we will now begin with Professor Geyh.

           TESTIMONY OF CHARLES G. GEYH, PROFESSOR, 
            MAURER SCHOOL OF LAW, INDIANA UNIVERSITY

    Mr. Geyh. Thank you, Mr. Chairman.
    My testimony today is going to be directed at the ethical 
implications of Judge Porteous'sconduct, with a focus on the 
Code of Conduct for United States Judges. As you already know, 
the Porteous matter is very complicated, spanning a number of 
episodes over a period of years. I am going to orient my 
testimony around those episodes beginning with those that I 
think are most problematic.
    As a preamble here, the ethical responsibilities of Federal 
judges are articulated in the Code of Conduct for United States 
Judges. The Code seeks to ensure that Federal judges serve with 
integrity, impartiality, and independence. Those are the watch 
phrases.
    Core principles embedded in the Code of Conduct are that 
judges avoid impropriety and the appearance of impropriety in 
all their activities. That means on and off the bench. That 
they act at all times, again, meaning on and off the bench, in 
a manner that promotes public confidence in the integrity and 
impartiality of the Judiciary.
    Now, moving on to the Liljeberg case, which strikes me as 
certainly the most problematic in the bunch, there are specific 
directives applicable there as well. Judges must disqualify 
themselves whenever their impartiality might reasonably be 
questioned.
    Now, I want to emphasize here that this duty to disqualify 
is embedded as a procedural requirement in Title 28 of the U.S. 
Code, but it is also appearing in the Code of Conduct, so that 
it is both a procedural requirement and an ethical obligation. 
In addition, the Code of Conduct declares that judges must not 
solicit or accept gifts from lawyers who appear before them.
    Now, in Liljeberg, Judge Porteous declined to disqualify 
himself from a major piece of commercial litigation in which 
two of the lawyers hired during the eleventh hour to represent 
defendants in that case were not just long-time friends, they 
were friends with benefits. They had bought him countless meals 
and hunting trips over the years. They had paid him thousands 
of dollars on demand over the years. They had arranged to give 
him what can only be described in my mind as kickbacks from 
curatorships he had assigned them while a State judge.
    And so under these circumstances in which this lawyer, 
Amato in particular, appears before him, it is clear to me that 
a reasonable, fully informed, objective observer looking at 
that situation would question Judge Porteous'simpartiality, 
requiring disqualification under both the ethical rules and 
Title 28.
    Now, in the routine case a judge's failure to disqualify 
himself merits nothing more than reversal, because judges make 
mistakes the same as everybody else and a mistake is not an 
ethical violation. However, this is more than an honest 
mistake. The facts as alleged here show that there was a 
willfulness on Judge Porteous'spart. And again I am relying on 
facts as found by the Judicial Conference, and I am turning to 
testimony that has been adduced so far in these proceedings, 
and I leave it to you to find the facts.
    But taking those facts as given, it would appear that 
although Judge Porteous knew that he had received thousands of 
dollars from Mr. Amato over the years and solicited moneys and 
kickbacks, that he nevertheless reported on the record at the 
disqualification hearing that he had taken money from Amato 
only once, when Judge Porteous first ran for judge. This kind 
of misdirection indicates to me a willful intent to conceal 
information he knew required disqualification and morphs it out 
of a simple error and into the form of a much more serious, 
willful failure to disqualify under circumstances in which he 
knew that he should.
    It gets worse. When he allegedly solicited thousands of 
dollars from Amato while that very case was pending, he first 
violated gift rules, which basically indicate you can't solicit 
moneys from lawyers in pending cases; and, to make matters 
worse still, that gift was not reported later, which to me 
indicates an attempt to conceal or an awareness that at the 
time he is asking for a gift it is not appropriate to receive.
    He accepts that gift, having solicited it. It made 
disqualification even more necessary at that point, that he had 
accepted a $2,000 gift from a lawyer in a pending proceeding, 
and made his failure to do so all the more flagrant. To me, 
then, this is not just a failure to disquality.
    We are now going back to the core directive that a judge 
must act at all times to avoid impropriety, and a judge must at 
all times work to promote public confidence in the impartiality 
of the judiciary-- both of which directives were, in my 
judgment, sidestepped.
    The second of the three examples I am going to talk about 
here is the bankruptcy proceeding, which you have heard about 
more recently. Judges I think categorically have a duty to 
respect and comply with the law. It is embedded in the Code of 
Conduct. That duty is understandable enough, because if judges 
are going to be sworn to uphold the law in cases that come 
before them, they must honor and obey that law in their private 
lives.
    Judge Porteous allegedly violated perjury and fraud 
statutes in the bankruptcy proceedings. If so, he disregarded 
that directive. Now, even if we say that because he was not 
prosecuted for that conduct he did not technically abrogate the 
duty or violate the duty to comply with the law, one can 
nevertheless conclude, as courts all over the place have in the 
State systems, that a judge who violates the law, even if it is 
unprosecuted, has failed to avoid impropriety and has failed to 
act at all times in a manner that promotes public confidence in 
the integrity of the judiciary. And bear in mind that integrity 
in this case is defined to mean honesty and probity, which 
fraud and perjury would certainly seem to be the antithesis of.
    Finally, in the case of a bail bondsman, judges have an 
ethical duty to avoid lending the prestige of judicial office 
to advance the interests of others. In this case, Judge 
Porteous, while on the Federal bench, allegedly accepted free 
meals and other favors in exchange for recommending the 
bondsman in question to State judges, thereby lending the 
prestige of his office to advance the bondsman's interests. To 
me, this likewise runs afoul of the Code of Conduct.
    As egregious as the judge's alleged conduct was in the 
several episodes that I have spoken of here and in others that 
are included in my written testimony, to me the whole exceeds 
the sum of its parts. Taken together, the actions that Judge 
Porteous is reported to have taken as a State and Federal judge 
reflect a cynical and contorted view of judicial service as an 
opportunity to be exploited, of judicial power as a thing to be 
abused for personal gain, and of legal and ethical constraints 
on judicial conduct as obstacles to be circumvented. This, 
gentleman, is not appropriate conduct.
    Thank you.
    [The prepared statement of Mr. Geyh follows:]
                 Prepared Statement of Charles G. Geyh

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                               __________
    Mr. Schiff. I thank the gentleman. Professor Amar.

           TESTIMONY OF AKHIL REED AMAR, PROFESSOR, 
                        YALE LAW SCHOOL

    Mr. Amar. Thank you, Mr. Chair.
    With respect, I have five points to make.
    First, there is no good reason to believe that only 
offenses punishable under the criminal code merit impeachment. 
In context, a high misdemeanor is best understood as high 
misconduct, whether or not criminal. This is very clear from 
constitutional history, from the precedents established early 
on, from the common sense of the matter. And that is one of the 
reasons, by the way, that impeachment is given to a body that 
is not expert necessarily on criminal law technicalities. It is 
given to this body and the other body precisely because it is a 
broader, more commonsensical inquiry.
    Second and related, the procedural rules applicable to 
ordinary criminal cases do not necessarily apply to impeachment 
trials. The jury, so to speak, the Senate, need not be 
unanimous. The recusal rules are not the ones that apply in 
ordinary criminal cases.
    For similar reasons, in my view, the Fifth Amendment self-
incrimination clause, a clause that applies to ordinary 
criminal cases, should not apply in all respects in an 
impeachment trial, which is only quasi-criminal. And the 
underlying reasoning here is simple. Ordinary criminal cases 
place the defendant's bodily liberty at risk. In a capital 
case, life hangs in the balance. But an impeachment defendant 
does not face any threat to life or limb in an impeachment 
proceeding even if he is being impeached for treason itself. 
Thus, these impeachment procedures need not be as tenderly 
protective of defendants because impeachment defendants face 
fewer punitive sanctions than ordinary criminal defendants.
    And in this particular case, it is not even clear that 
removal from office is really punishing Judge Porteous by 
depriving him of anything that was ever rightfully his. Rather, 
removal from office simply undoes an ill-gotten gain. It ends a 
Federal judgeship that he should never have received in the 
first place and never would have received but for the 
falsehoods and frauds that he perpetrated while being vetted 
for this position here on Capitol Hill.
    Third, it is a gross mistake to believe that Federal 
officers may be impeached only for misconduct committed while 
in office or, even more strictly, for misconduct that they 
committed in their capacity as Federal officers. This was the 
standard that was put forth by Judge Dennis in some of the 
materials you have before you, and it is a completely mistaken 
standard that really fatally compromises the analysis that 
Judge Dennis provided. The text of the Constitution has no such 
requirement, and structure and common sense demonstrate the 
absurdity of this position.
    Let's take bribery. Imagine now a person who bribes his 
very way into office. By definition, the bribery here occurs 
prior to the commencement of office holding. But surely that 
fact can't immunize the briber from impeachment and removal. 
Had the bribery not occurred, the person never would have been 
an officer in the first place.
    This is a view, as is almost everything I am saying here, 
that I committed myself to in print long before these hearings; 
and my written testimony contains more of the details of what I 
and other scholars have written before on this matter.
    Now, what is true of bribery is equally true of fraud. A 
person who procures a judgeship by lying to the President and 
lying to the Senate has wrongly obtained his office by fraud 
and is surely removable via impeachment for that fraud.
    Fourth, not all evasive or even downright false statements 
in the nomination and confirmation process deserve to be viewed 
as high misdemeanors equivalent to bribery. Here, as elsewhere, 
judgment is required; and the Congress, in my view, is 
perfectly positioned to exercise that judgment about what makes 
these misstatements particularly worthy of impeachment.
    And in the case of Judge Porteous, as I understand the 
facts, here are some of the things that I would stress. He gave 
emphatically false statements to direct, albeit broad, 
questions. These emphatic falsehoods concealed gross prior 
misconduct as a judge in a vetting proceeding whose very 
purpose was to determine whether he should be given another 
judicial position with broadly similar power.
    The nomination and confirmation process fraud and falsehood 
were part of a much larger pattern, as you have just heard, of 
fraud and falsehood, a pattern that began much earlier in State 
court and continued much later on the Federal bench as in the 
Liljeberg case. And, finally, had Judge Porteous told the truth 
in his confirmation process, it is absolutely inconceivable 
that he would have been confirmed and commissioned as a Federal 
judge.
    Fifth, and finally, the House and Senate in this case need 
not worry about undoing the people's verdict on election day, a 
concern that does properly inform Presidential impeachment 
cases. Here Porteous is a judge only because the Senators 
themselves voted to make him one, and they did so under false 
pretenses. He lied to them.
    This House should give the other body, which voted to place 
Porteous in the position of power over his fellow citizens the 
chance to revote and remove Porteous from power. And now that 
it is clear that he won that earlier position--that earlier 
vote by foul, fraud, falsehood, by high misdemeanor.
    This isn't really harsh punishment in this case. It is 
simply disgorgement of wrongful gain and prevention of future 
foreseeable misconduct, given the gross pattern that has been 
demonstrated here.
    In conclusion, every day that a fraudster continues to 
claim the title of a Federal judge and to draw his Federal 
salary is an affront to fellow citizens and taxpayers, to say 
nothing of the parties unfortunate to come before him. The mere 
fact that criminal prosecution of Porteous might not be 
warranted should not mean that he should therefore escape 
scrutiny and verdict of an impeachment court. I am reminded of 
the bank robber who managed to fool the judge into acquitting 
him. That is great, your Honor, the defendant blurted out. Does 
this mean that I can keep the money?
    Thank you, Mr. Chair.
    [The prepared statement of Mr. Amar follows:]
                 Prepared Statement of Akhil Reed Amar

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                               __________

    Mr. Schiff. Thank you, Professor.
    Professor Gerhardt.

  TESTIMONY OF MICHAEL J. GERHARDT, PROFESSOR, UNIVERSITY OF 
                  NORTH CAROLINA SCHOOL OF LAW

    Mr. Gerhardt. Thank you, Mr. Chair. I greatly appreciate 
the invitation to be here. It is an honor to participate in 
these proceedings. It is also a great honor to participate 
today with my friends, Charlie Geyh and Akhil Amar.
    You have my written statement, and so I will give you a 
much shorter version of it in these oral remarks.
    At the outset, though, I want to take the liberty of 
reminding you that the integrity of the Federal judiciary and 
public confidence in the Federal judiciary are your solemn 
responsibility. It is the responsibility of the House of 
Representatives to monitor the conduct and the misconduct of 
those people who have been appointed to certain offices, 
including Federal judgeships.
    In my written statement I focus on four different issues 
that I think are of interest to you as a Committee, and I will 
simply summarize those issues here.
    The first has to do with the question of whether or not 
impeachable offenses have got to be indictable crimes, those 
kinds of crimes which people may, as Professor Amar was 
describing, lose their physical liberty.
    I think the evidence on this is overwhelming. The 
overwhelming weight of authority is that impeachable offenses 
are not merely indictable crimes. The most common phrase that 
you find in reviewing the literature on impeachment and the 
history of it is the Framers and ratifiers intended impeachable 
offenses to be what they thought of as political crimes; and 
they describe these things as offenses against the State, 
injuries to the Republic, breaches of the public trust, abuses 
of power. They rarely talked about things that were actually 
codified as criminal offenses but instead described offenses 
that were not liable at law; and so I think the overwhelming 
weight of authority is that you need not restrict yourselves to 
consideration of conduct that would, if done, send somebody to 
prison.
    The second issue has to do with whether or not somebody may 
be subject to impeachment conviction and removal for conduct 
done prior to occupying that particular position. I think this 
can be a difficult question, but I don't think it is a 
difficult question here.
    As I suggest in my written statement, any egregious 
misconduct not disclosed prior to election or appointment to an 
office from which one may be impeached or removed is likely to 
qualify as a high crime or misdemeanor. While murder would be 
one obvious example of such misconduct, it is not the only 
example.
    Another example I think is lying to or defrauding the 
Senate in order to be approved as a Federal judge. Such 
misconduct is not only serious but obviously connected to the 
status and responsibilities of being a Federal judge. Such 
misconduct plainly erodes the essential indispensable integrity 
without which a Federal judge is unable to do his job.
    The third issue has to do with whether or not an 
impeachment is the same as, or should be the treated the same, 
as a criminal proceeding; and I think the answer to this is 
also very clear. Impeachment has always been understood to be a 
unique proceeding, sometimes described as a hybrid proceeding, 
a proceeding that has some things in common with civil 
proceedings and criminal trials, but it is unique in itself.
    For one reason, it is vested in this body. The 
responsibility of impeachment is not given to a judge or a 
jury, it is given to political authorities, people who are 
politically accountable. Other reasons are the unique 
punishments that are available in impeachment, which include 
removal from office and disqualification from certain 
privileges.
    The last--and I should also say that the unique nature of 
an impeachment proceeding is something that thus would allow 
the Congress to use a different burden of proof and to use 
different evidence or evidentiary rules as it saw fit.
    The critical thing, as Charles Black pointed out in his 
wonderful book on impeachment, is because it is political 
authorities who have been given the responsibility over 
impeachment, they have got the sophistication and the learning, 
the common sense, the know-how to deal with the kinds of 
matters that they have to deal with in these circumstances.
    Justice Story talks about the fact that political crimes 
can't be delineated in a particular statute. They can't be 
codified. You have to learn about them on a case-by-case basis. 
This is precisely why a body as important and as unusual and 
special as the House of Representatives is vested with the 
authority over impeachment, because you have got the ability to 
make those practical, important judgments that have to be made 
about what counts as an impeachment and whether or not a 
particular case merits impeachment.
    The last question has to do with whether or not we have any 
precedents on point--I should say whether we have any 
precedents directly on point. I think the short answer is 
probably not. But I think that has to do with more the nature 
of Judge Porteous's misconduct than with anything else. The 
fact is that we are discovering or finding in this case a 
pattern of misbehavior that extends over such a long period of 
time that it is virtually unique in the annals of impeachment. 
And I think in terms of this case, the outcome is pretty clear. 
And I think we all share the view that this is an appropriate 
circumstance in which you may consider the possible impeachment 
of a Federal judge.
    Thank you.
    [The prepared statement of Mr. Gerhardt follows:]
               Prepared Statement of Michael J. Gerhardt

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                               __________

    Mr. Schiff. Professors, thank you very much for your 
testimony. I am going to start with a few questions, and then 
hand it off to my colleagues for their questions.
    I want to ask you a very narrow question. You have all 
testified to the effect that conduct that takes place before 
someone is on the Federal bench may be considered in 
determining whether an impeachment is warranted. In part, it 
may depend on whether the Senate was--I think, Professor Amar, 
in your written testimony you said whether the Senate was aware 
of the conduct, for example, or whether there was some kind of 
a fraud on the Senate.
    The Senate, in the background interviews conducted through 
the FBI or in questionnaires or in testimony obviously can't 
ask a specific question, did you receive kickbacks from 
attorneys while you were on the State bench, because they don't 
know the conduct specifically to ask about, so they generally 
ask fairly general questions. I would like to acquaint you with 
some of the questions that were asked of the judge and ask you 
whether there was an affirmative obligation to disclose such 
that the failure to disclose would be considered a fraud on the 
Senate.
    In the FBI background interview, the FBI agent reports 
Porteous said he is not concealing any activity or conduct that 
could be used to influence, pressure, coerce, or compromise him 
in any way or that would impact negatively on the candidate's 
character, reputation, judgment, or discretion.
    Similarly, there was a question in one of the Senate 
questionnaires which said: ``Please advise the Committee of any 
unfavorable information that may affect your nomination,'' and 
the judge's answer was: ``To the best of my knowledge, I do not 
know of any unfavorable information that may affect my 
nomination.''
    Similarly there was another question: ``Is there anything 
in your background that, if it came out, could embarrass the 
President?''
    Were these questions sufficient to raise an obligation of 
disclosure on the part of the judge such that the failure to 
disclose either the relationship with the bail bondsman or the 
kickback relationship with the attorneys would in your view 
constitute a fraud on the Senate sufficient to warrant his 
impeachment?
    Mr. Gerhardt. I suspect we are all in accord on this. I 
think the answer is overwhelmingly yes.
    I think that this is actually not a hard case, Mr. Chair. 
The fact is that, to begin with, you can use your common sense 
to simply look at the questions that were asked and look at the 
kind of misbehavior, the kind of conduct that wasn't disclosed, 
and understand that that is exactly the kind of thing the 
Senate would have wanted to know.
    In fact, the behavior here isn't just accidental. It is not 
one or two circumstances. It is a pattern of misconduct that 
suggests a level of intent that is disturbing. And I suspect 
that it is exactly the kind of thing the President would have 
wanted to know, and it is also the kind of thing the Senate 
would have wanted to know. And I think the failure to disclose 
is an affront to both the President's nominating authority and 
Senate's confirmation responsibility.
    I might just go one step further, if I may. I have actually 
thought about that question a lot, Mr. Chair. And I keep come 
back to the same thing. I think, what do I tell my students? We 
have the responsibility of educating law students. And if they 
are faced with a question like this and you don't impeach, they 
get the message that there is a level of corruption that is 
permissible, that there is a level of disclosure they don't 
have to make to accountable bodies.
    The fact is that common sense suggests that there should 
have been disclosure. The very fact that these things weren't 
disclosed I think suggests, again, a disturbing level of intent 
but also a refusal to do something I think that is plainly 
required by those questions.
    For example, would this information negatively impact the 
character of this judge? It is more than obvious the answer to 
that is yes. And the same would follow with every other part of 
that standard or that question that you mentioned.
    And so I would like to tell my students that there is not a 
minimal level of corruption that is allowable for people to be 
a Federal judge. They are going to be applying for jobs and 
things like that. They are going to be asked questions like 
this. And in those circumstances they will have an affirmative 
duty to disclose anything along these lines. The same should be 
held true for people who hold high office, including Federal 
judgeships.
    Mr. Amar. I agree with everything that my friend has said, 
and I would add a few additional points.
    First, I think one could take the position that mere 
affirmative--excuse me, the mere failure to disclose something 
like this is itself impeachable just because it is such serious 
information that is being withheld. But you don't need to go 
that far, because here there actually are misrepresentations, 
lies. There are questions that are broad, but there are 
questions, and he actually gave false answers to them where I 
think he actually was under an affirmative obligation to 
disclose. But you don't even need to go that far.
    Second, again, we are not talking here about criminal 
prosecution. There are criminal cases with Federal District 
Court opinions where questions were asked of comparable breadth 
and people actually didn't quite tell the whole truth. We just 
all took oaths to tell not just the truth but the whole truth. 
And there are criminal prosecutions that are going forward, in 
the Kerik case and other cases, where there was a comparable 
misrepresentation.
    Here, though, it is so much easier, it seems to me, because 
we are not talking about putting him in jail, we are talking 
about withdrawing the very position that he wrongfully got 
through these lies and that he never would have gotten had he 
been truthful, had he told the whole truth, as was his 
obligation.
    Third, yes, the questions were broad, partly because it is 
impolite to be more specific, especially without any basis for 
this, but everyone knows what is actually at the core of the 
question. Are you an honest person? Are you a person of 
integrity? Do you have the requisites to hold a position of 
honor, trust, and profit? Do you have judicial integrity? That 
is at the core of all these questions. That is not at the 
periphery.
    And what he lied about was his gross misconduct as a judge: 
taking money from parties, taking money in cash envelopes, not 
reporting any of this to anyone. There is a pattern. And to the 
extent that you are even just focusing on his 
misrepresentations and lies and fraud before the Senate, don't 
give him the benefit of the doubt, because even--because it is 
part of a larger pattern.
    So I don't think--the hearings, Michael is absolutely 
right, it would really be unfortunate if you had to ask 
specific questions of a green eggs and ham variety. Were you a 
crook in a box? Were you a crook with a fox? Were you a crook 
in the rain? On a train? You know, we know what those questions 
at their core was about, and he lied at the core. There is 
vagueness at the periphery, but this was really central.
    Mr. Schiff. Professor, let me refine my question a little 
further if we could. We don't always have the opportunity to--
this is a former law student's revenge here, being able to 
question the professors with hypotheticals nonetheless.
    We have conduct here that occurred both prior to Judge 
Porteous being on the Federal bench, conduct that in many cases 
bleeds into while he is on the Federal bench, a continuation of 
relationships and the corrupt relationships, and then we have 
the false statements to the Senate. But let me ask you a narrow 
question. Let's say that all we had were misconduct of the 
nature that you have become familiar with that pre-dated his 
service on the Federal bench, wasn't within the knowledge of 
the Senate. But let's remove the affirmative duty to disclose 
and the questions of the Senate, and let's just focus on the 
conduct that took place before he was on the Federal bench. Do 
you believe that conduct in and of itself would be a basis for 
impeachment? Is there ample precedent or any precedent that 
conduct that solely predates the Federal bench in and of itself 
is a sufficient basis to impeach?
    Mr. Amar. His concealment of this--if he had told everyone 
about it and been confirmed anyway, then in effect there is a 
kind of res judicata in the Senate itself that, having been 
given the facts and fairly adjudicating whether they want this 
person to hold office, but when he withholds that information 
from the Senate, even if he had never been asked a direct 
albeit broad question, there is a certain kind of concealment 
that was in his own--you know, he was the master of his own 
fate. He could have made different choices. He could have come 
forward, but he concealed it. And that undercuts his ability to 
be a judge.
    Anyone who comes forward just knows now once these facts 
come to light, you know, how is any litigant, how is any lawyer 
going to be able to feel that this person is a fair and honest, 
impartial--is not selling justice?
    And all he had to do in the Liljeberg case, for example, 
was recuse himself. All he had to do here, if he doesn't want 
all this to come to light, is just not allow his name to go 
forward. But he did. And by allowing his name to go forward, I 
think he actually then was under a certain duty not to conceal 
this stuff. It is a kind of obstruction. And when he insists on 
hearing the Liljeberg case rather than simply recusing himself, 
he had easy outs actually if he wanted to keep this in the deep 
past.
    Mr. Schiff. Let me ask you, if I could--I have two more 
questions, and I am already over my time, but maybe you could 
start with one of them.
    One is, I would like to get your thoughts on the bankruptcy 
issues. If you assume the facts are that the judge filed a 
bankruptcy petition in a false name, did so on the advice of 
his counsel, corrected the false statement a couple weeks later 
or some weeks later, then during the bankruptcy violated the 
bankruptcy court's order by incurring additional debt by 
borrowing money, markers at casinos, by taking out another 
credit card, are those allegations sufficient for an article of 
impeachment?
    Mr. Gerhardt. If I may, I think the answer to both of your 
questions is yes.
    We should keep in mind that a Federal judge is a public 
symbol of the law. And in the circumstances in which we have 
got--the circumstances that we have got, we can look at that 
past behavior and, as it comes to light, if we are talking 
about the first example you gave, that is clearly the kind of 
behavior which undermines his ability to maintain that position 
of being a public symbol of the law.
    Say somebody is a Federal judge and was a war hero, and 
then it turns out that later it is disclosed he was guilty of 
all sorts of war crimes. I think that is a circumstance in 
which you could probably say, look, that clearly undermines his 
integrity and the symbol, the confidence people would have in 
him because it changes your view of him. It changes your 
understanding of his moral, in a sense, qualities or 
qualifications to be a judge.
    In terms of the last--the second example you gave, I think 
the answer to that is going to be yes as well, because I think 
that in a circumstance like that, again, it is not just that it 
fits into a pattern of failing to follow the law or to do the 
right thing, it also reflects a level of disdain for the law 
that I think is just simply incompatible with being a Federal 
judge.
    Mr. Schiff. Professor Geyh, you want to have the last word 
on these issues?
    Mr. Geyh. Sure. Really two follow-up points, one to a point 
that Akhil made before. I think that even if we take the 
confirmation proceedings out of the equation and simply focus 
on his behavior as a State court judge, I think, you know, 
accept the hypothetical, for example, that a judge is 
discovered while a State judge to have committed serial 
murder--to me, no one in their right mind would suggest that 
that wouldn't be disqualifying of Federal service simply 
because it had occurred while he was a State court judge. From 
there you simply have to ask yourself whether the conduct as a 
State judge is sufficiently egregious to rise to an impeachable 
standard.
    And I would call your attention to Mike's point that we are 
really talking here about a political crime in which the focal 
point is whether this judge has violated the public trust. And, 
to me, a quid pro quo arrangement with bail bondsmen, accepting 
kickbacks for curatorships, is the kind of corruption that 
fairly may be characterized as a violation of the public trust. 
Who cares if it occurred before?
    And if you are looking for precedent, in my line of work, 
in States all over the country it is quite common for a judge 
to be subject to disciplinary proceedings, which can include 
removal, for conduct that they engaged in not just when they 
were a judge in the current term, but in a previous term, in a 
previous incarnation as a judge of a different sort, and when 
they were in private practice. So, to me, I am quite 
comfortable with that notion.
    As to the bankruptcy point, whether it is impeachable, it 
just seems to me that if a judge is not going to take the law 
seriously, first by filing under a false name and then by going 
so far as to essentially flout orders of the Court in that 
proceeding, that strikes me as the kind of behavior that this 
Committee is well within its rights to think of as the kind of 
behavior that violates that public trust, which is the 
operative standard for defining a impeachable crime or 
misdemeanor.
    Mr. Schiff. Thank you.
    Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Let me ask each of you to take us briefly through the 
meaning, in your view, of the phrase ``treason, bribery, and 
other high crimes or misdemeanors''--if I am quoting that 
correctly--``treason, bribery, and other crimes and 
misdemeanors against the United States''.
    What does that mean, particularly high crimes and 
misdemeanors? Is that, as some have argued, former President 
Ford when he was in the House of Representatives maintained 
that an impeachable offense was whatever Congress said it was? 
Do you agree with that?
    Mr. Amar. With respect, no. He is a graduate of my law 
school, his portrait hangs right below my office and a great 
man, and he might have had a different view once he became 
President of the United States.
    And the reason--and Michael's book is very good on just 
that question. A person--here is why it is clear that that 
can't be the standard. Imagine a President who vetoes a bill in 
good faith because he thinks it is bad for the country. That 
could never be the basis of an impeachment. A good-faith--no 
bribe, no--because if it were, it would undermine the very 
structure of the Constitution. In order to overturn the veto, 
you need two-thirds of the House and two-thirds of the Senate. 
In order to impeach the vetoer, you only need a majority of the 
House and two-thirds the Senate. And it can never be the case 
that you could basically get around the veto override 
provisions by impeaching the person merely because you 
disagreed with the veto.
    Mr. Goodlatte. I hear you.
    So now take it to the next step, which is, if it is not 
that, what is high crimes and misdemeanors?
    Mr. Amar. It is not criminal on the other side. And that 
has been very well established, as Michael's book and others 
show. I think really almost all the experts are of that view. 
So this is pretty easy, because this is akin to bribing your 
way into office. So that is a pretty easy thing, whether 
criminal or not.
    I used an example borrowed from Charles Black, who you have 
heard invoked. I will just mention it, because I want you to 
know that I wrote this in 2005, just because it might have a 
certain contemporary resonance. An impeachment standard 
transcending criminal law technicalities made good structural 
sense. A President who ran off on a frolic in the middle of a 
national crisis demanding his urgent attention might break no 
criminal law, yet such gross dereliction of duty imperiling the 
national security and betraying the national trust might well 
rise to the level of disqualifying misconduct.
    I mention that just because again this is before anything 
happened in South Carolina and all the rest. It is 2005. But it 
is noncriminal, but it is basically gross dereliction of duty, 
a betrayal of the public trust.
    Mr. Schiff. You didn't mention Argentina in your----
    Mr. Amar. Charles Black actually in this book instead talks 
about going off to Saudi Arabia to have four wives, actually, 
and says that is an impeachable offense. I am not making that 
up.
    Mr. Goodlatte. Professor Gerhardt?
    Mr. Gerhardt. I agree with everything Professor Amar has 
said, including South Carolina. No. I am from North Carolina. I 
am quite fond of South Carolina, I should add.
    What I want to just amplify is the fact that there has been 
so much effort to understand those words that you have asked 
about. What do these words ``high crimes or misdemeanors'' 
mean? And I think we have settled on a pretty widespread 
consensus that they refer to what I was talking about earlier 
as political crimes.
    And if you read the Constitution convention, ratification 
convention, the people supporting the Constitution are using 
the same phrases over and over again. They are talking about 
crimes against or injuries to the Republic, offenses against 
the Republic. They are talking about breaches of the public 
trust, abuse of power.
    The one thing that is also helping to explain why they are 
using all those phrases is they didn't want to tie it down. 
They didn't want it to be anchored down to some kind of 
codification, because they knew that it had to adapt to 
circumstances as they arose. And that is precisely what we have 
learned over time in this country, that the Congress develops a 
common law of impeachment, so to speak, that it deals with one 
case at a time, and it deals with each case on its merits.
    The fact that we don't have anything on all fours with this 
current case is of no real importance or consequence. What is 
important is that, as Professor Amar and Professor Geyh were 
pointing out, you have a pattern of misbehavior here which I 
think undermines the ability to function as a Federal judge. It 
robs the person of all the qualities and all the qualifications 
they need to function as a Federal judge. That would seem to 
fit very neatly into what the Framers meant by that phrase.
    Mr. Goodlatte. Professor Geyh?
    Mr. Geyh. I am kind of reminded of a line from Forrest 
Gump: Stupid is as stupid does. And I think in this case 
impeachment is as impeachment does.
    And one of the things that I would add to the mix--and I 
should say there is a self-interested aspect to this. When 
academics write, they worry that, apart from their mother, no 
one reads their work, so this is an exciting opportunity.
    But one of the things that I looked at in the impeachment 
context was to look not just at the 13 formal impeachments but 
the 80 investigations that have gone forward, many of them 
culminating in resignation of the affected judge, which to me 
means something. And I think it is useful to note that the 
kinds of behavior over time that have resulted in impeachment 
inquiries culminating in resignation include things like 
favoritism, like abuse of administrative power, like grossly 
intemperate behavior, abuse of office resources, and so on. So 
that there really is a little bit more precedent there. It is 
not binding, and it is not really as complete in the sense that 
we didn't see it through to completion, but it is not 
irrelevant in trying to get a feel for what an impeachable 
crime and misdemeanor means.
    Mr. Amar. And the very first impeachment resulting in a 
conviction of a Federal judge is of Judge Pickering, and he 
violated no criminal law, but he was----
    Mr. Goodlatte. I think we are sold on that point.
    Mr. Amar. And convicted of intoxication and indecency on 
the bench and abusing power.
    Mr. Goodlatte. Thank you.
    Let me ask another question, and we will start with 
Professor Gerhardt.
    In evaluating Judge Porteous'spre-Federal bench conduct, 
what is the significance of the fact that the conduct at issue 
with Judge Porteous involved acts taken as a State judge in his 
judicial capacity? Would that be more important than, for 
example, other private misconduct he might have taken prior to 
ascending the Federal bench?
    Mr. Gerhardt. I think the basic answer is going to be yes, 
but I think this is an area where you can't come up with hard-
and-fast rules. But I think the fact that he was a State judge, 
a job, a position, as Professor Amar has suggested, that is 
quite analogous to the one he was about to get in the Federal 
system is one in which you could sort of find very good 
evidence as to whether or not he has the qualities that we 
expect a Federal judge not just to have but to maintain. So we 
could look to that past behavior as a State court judge and 
ask, to what extent is he behaving in this job in the way in 
which we would expect a Federal judge to behave?
    That is precisely why the Senate would have wanted to know 
this. It is precisely why the President would have wanted to 
know it. And it is quite significant--and nobody probably knows 
this better than Judge Porteous--had he told the President 
about this, of course, he wouldn't have been nominated. Had he 
told the Senate about this, of course, he wouldn't have been 
confirmed. That tells you something.
    Mr. Goodlatte. If no one has any disagreement with that, 
let me go on to another question. Did it amount to a fraud on 
the Senate in his failing to disclose his prior conduct?
    Mr. Gerhardt. In a word, yes.
    Mr. Goodlatte. Yes? We all agree with that?
    Did his failure to disclose his prior conduct prohibit the 
President and the Senate from effectively exercising their 
constitutional duties to vet him? I think you just answered 
that in the affirmative.
    Mr. Gerhardt. I will state it out loud. Yes, sir.
    Mr. Goodlatte. Yeah, you may want to----
    Mr. Amar. Yes.
    Mr. Geyh. Yes.
    Mr. Amar. And just on that one earlier point about 
misconduct as a State judge, that is why he is being basically 
nominated. So the fact that he was a State judge is absolutely 
essential to his being a Federal judge today.
    Mr. Goodlatte. You have earlier commented on Judge 
Dennis''s dissent in the Fifth Judicial Circuit Council 
opinion. And Judge Winters in his response to that dissent 
stated that the fifth circuit dissenters tend to view each of 
Judge Porteous'sacts and the applicable rules in isolation from 
the others. Judge Winters wrote that the better way of looking 
at that conduct was the various acts must be viewed as a whole 
and the applicable laws and canons as a coordinated scheme.
    Think through for the Committee here, if you would, how you 
would approach articles of impeachment. Would you have one 
catch-all article of impeachment? Would you have several 
articles of impeachment addressing each of these areas of 
conduct? Professor Geyh?
    Mr. Geyh. Certainly you can have both. It seems to me that 
you are well within your rights to identify the Liljeberg 
scenario, the bankruptcy scenario, the bail bondsman scenario 
as free-standing, impeachment-worthy events and still have an 
omnibus provision which, in at least one impeachment, won the 
day.
    And from an ethics perspective it seems to me that, you 
know, courts everywhere look at discrete misbehavior in 
isolation fundamentally different than they do patterns of 
conduct and to disregard that fundamental point is to miss the 
point.
    What would make a potentially difficult case, if you view 
it each in isolation, becomes an easy case when you look at the 
behavior in composite.
    Mr. Amar. There are two kinds of patterns. My colleague, 
Ralph Winter, talks about how the disclosure requirements and 
the recusal rules and the rules about not taking cash--not 
taking favors from parties sort of all fits together in a part 
of one reinforcing scheme. I think it is a beautiful refutation 
of Judge Dennis. So that is one kind of pattern within a 
transaction in, say, Liljeberg.
    But then there is the chronological pattern across the 
years. And, at the very least, when looking at the 
misrepresentations, it does suggest you shouldn't give, as fact 
finders, the benefit of the doubt to Judge Porteous because 
there is a pattern, and he has abused any rights to have you 
give him the benefit of the doubt. That he shades the thing in 
Liljeberg by sort of being very misleading and false in his 
answers to Counsel Mole and does the same thing in the 
bankruptcy proceeding and does the same thing--and so as fact 
finders, you are I think entitled to draw inferences and see 
the pattern.
    And I agree with Professor Geyh that if there were a 
criminal analogy here, it would be RICO. It would be a 
continuing criminal enterprise in which there is I think you 
said a whole greater than the sum of the parts. So I think you 
could do belt and suspenders, the individual counts and a 
catch-all count.
    Mr. Goodlatte. Professor Gerhardt?
    Mr. Gerhardt. And I certainly agree with that.
    I mean, just to reinforce what each of my colleagues have 
just said, I think--you could, I think, has an individual 
article that focuses on each episode of misconduct, but there 
is also the fact that they are not isolated from each other. 
They are not isolated from each other either in fact or in 
significance. It is particularly when you pull them together 
that you find that it is the same kind of misconduct over time. 
It is the same refusal to disclose, the same intent to hide, to 
defraud. In one case, it is bankruptcy; in another case, it is 
the Presidential nominating authority; in another case, it is 
the Senate confirmation authority. There is a pattern here, and 
that pattern is not good for the Federal judiciary.
    Mr. Goodlatte. Thank you. Thank you, Mr. Chairman.
    Mr. Schiff. Thank the gentleman.
    He yields back. Who seeks recognition? Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    I have one question that I would like to pose to all three 
of the gentlemen, and thank you for your testimony. Professor 
Gerhardt, it seems that we have been in this setting before.
    Mr. Gerhardt. Yes, ma'am.
    Ms. Jackson Lee. And thank you. And it is good to see you 
again.
    There is some question about the Justice Department's 
decision not to proceed in any prosecution, or at least has not 
made a determination of the individual before us, Judge 
Porteous. And I would ask the three of you your interpretation 
of how we should be impacted by the fact that the Justice 
Department has not moved forward on the case. Professor, and if 
the three of you could answer that, I would appreciate it.
    Mr. Gerhardt. I think it has no impact. I think it is of no 
real consequence.
    As I mentioned earlier, this is not a criminal proceeding; 
and so the charge that the House has got is very different than 
the charge that a prosecutor has got. The burden of proof is 
very different, the judgment is different, and so you have the 
power to consider the evidence under whatever burden you think 
is appropriate. And you wouldn't be bound in any event by what 
the Justice Department did, even if it sought a conviction. And 
the important thing I think is to make an independent judgment. 
And so the Constitution allows that, I think expects that. And 
so I don't think the failure of the Justice Department to do 
anything is of--any real consequence.
    Ms. Jackson Lee. Thank you.
    Professor Amar?
    Mr. Amar. Here are a few additional reasons I think for 
Michael's bottom line, which I share.
    Several of the counts here are themselves not criminal 
offenses, so of course they wouldn't have been ruled on by the 
Justice Department, but they are very clear cases, episodes for 
impeachment. Here all that is being done is removing a position 
that the judge never should have had in the first place. It is 
not like putting someone in prison, taking away their very 
life. It is not even retributive. It is just preventative of 
future wrongdoing and restorative in a way. He should never 
have had this position in the first place.
    Now, if you were persuaded that on the facts of some of 
these other transactions he actually was not guilty of 
anything, well, that, of course, would bear on your judgment. 
If you actually had some findings, which I don't think we do 
have, in his favor, made by some investigator that certain 
witnesses were not reliable, well, then that might actually 
very much influence your view of those episodes and to that 
extent perhaps your view of the whole pattern and credibility 
and all the rest.
    Mr. Geyh. Same point as Akhil just made. It just seems to 
me that there are lots of reasons for not prosecuting someone. 
Some of them will exonerate the person involved, and that makes 
a big difference. Some of them are the statute of limitations 
just ran out, which has very little to do with whether he 
engaged in the underlying conduct. And, as an ethical matter, 
it may affect whether he technically violated the law. I don't 
think it should, but it doesn't affect the fact that he engaged 
in a serious impropriety, and the only reason he hasn't been 
subjected to criminal conduct is they have limited resources or 
they have made a discretionary call.
    It seems to me that this body still has a responsibility to 
step up in those situations where you conclude that 
theunderlying conduct was unacceptable, regardless of whether 
another branch of government chose to prosecute.
    Ms. Jackson Lee. Very quickly, and I think my Chairman 
asked this question earlier, and I have been asking this 
question. In the 1994 application for Judge Porteous for a 
Federal bench, there was that famous sentence that says, is 
there anything that you need to share with the President that 
would be embarrassing? And I don't know if it was slash 
embarrassing or some other word. And I've asked this question 
before, and I would like the scholars to answer in as brief as 
possible, that very answer of ``no,'' how do you couch that in 
terms of both our work, and I know I think I heard you say the 
Senate needed to have information, but was there a 
consciousness of thought? Was this person thinking that those 
were my personal matters that I gambled or stretched the 
relationships with bail bondsmen? What does that no mean to 
you.
    Mr. Gerhardt. That ``no'' is quite problematic. And I would 
analyze it two different ways. I mean, the first is I do think 
there's an obligation to answer that question and to answer it 
honestly. And the honest answer would be forthcoming with 
information.
    And there's no secret about what that question is seeking. 
Common sense alone I think would suggest to us what's the kind 
of information that ought to be revealed.
    But I might just go one step further. But all of us have 
studied the process of judicial appointments. And the other 
thing to keep in mind is that question gets asked not just in 
writing, but it's going to get asked in person, over the phone. 
It's going to get asked more than once in the process of being 
considered for nomination. So even if it doesn't show up in a 
form like that, there's a problem, and there's a failure to 
disclose. This just makes it all the more problematic because 
there's a formal requirement, and the failure to answer is 
clear evidence of the defrauding of the Senate in this 
circumstance.
    Mr. Amar. And it's not--the ``no'' covered up not just mere 
private failings; you know, back in the third grade, I dipped 
Suzie's pigtails in an ink well. This isn't just private; it's 
misconduct as a judge. It's taking cash in envelopes from 
lawyers who have cases before you. And the only reason--and 
don't be too tender. He was not in some trap here. All he has 
to do is simply say, I do not wish to be considered for this 
position. This is not like some independent council going after 
you, and now you're in a kind of a perjury trap or anything 
like that where there's the ``exculpatory no'' doctrine, which 
the Supreme Court has rejected by the way. It's nothing like 
that at all.
    If you don't want to put yourself in an awkward position, 
don't put yourself forward in this way. And he did more than 
merely conceal. He lied. There was a pretty direct question. At 
the heart of the question is, are you an honest government 
official? Because you're being asked now to--you're asking us 
to give you position as an even more powerful government 
official. That's at the heart of the question. It's not some 
peripheral thing. And he just straight out lied.
    Mr. Geyh. It bears emphasis that the kind of conduct we're 
talking about is not simply private behavior here. This is a 
judge who stands accused of taking kickbacks from curatorships 
he's appointing to friends. This is a judge who is accused of 
engaging in quid pro quo relationships with bail bondsmen. If 
those events did not trigger a yes response to that question, 
you know, in all innocence, I didn't think that's what you 
meant, the man has no moral compass whatsoever. I mean, it just 
seems to me it's very difficult to conceive that someone asked 
that question would not recognize that these are the kinds of 
events for which answers are sought and to step away from the 
process.
    Mr. Gerhardt. If I may, I just want to add one thing that 
simply reinforces what's been said.
    Just imagine what happens if you don't act here. What kind 
of precedent does that set? It says to people that you may take 
this road in the nomination process and confirmation process. 
That is to say, you may undermine the integrity of those 
processes because it's okay; that's a level of corruption we 
can tolerate. It seems to me that the answer here is quite 
clear: That's not a level of corruption we should tolerate.
    Ms. Jackson Lee. Chairman, thank you.
    And I thank the witnesses for the clarity in their answers.
    And I would simply say, Mr. Chairman, as I yield back to 
you that this seat that I hold in the 18th Congressional 
District for some reason seems to find its way along this 
pathway. My predecessor Barbara Jordan was in the Nixon 
impeachment, and I certainly didn't imagining that I would be 
participating in one in the 1990's.
    And I sought the answers for clarity because people may not 
understand the impeachment proceeding in the 1990's blurred a 
lot of answers and questions. And some would make the point, 
well, no one has prosecuted in this instance, and so what is 
the basis of your moving forward. And I think the clarity of 
what levels of integrity and responsibility one has, the 
handling of Federal documents is important because we have to 
make deliberative decisions and not take this very high act of 
government lightly.
    And I think it's important as we do this in a studious and 
deliberative way, and I thank the Chairman and the Ranking 
Member for presenting this to us in this manner.
    I yield back and thank you.
    Mr. Schiff. The gentlewoman yields back, and I thank the 
gentlewoman.
    And I just mention to the professors, in terms of the fact 
pattern that we've asked you to analyze, along the lines of 
what you've been describing, we had testimony I think last week 
from one of the bail bonds people that when he asked the judge 
to set aside a conviction of one of his employees, the judge 
indicated that he would only do so after his confirmation, so 
prior to taking the bench but after confirmation, which I think 
indicates a knowledge that these things could have affected and 
indeed would have affected his confirmation process.
    Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    I heard someone say earlier today on the panel that, or 
indicate on the panel, that an impeached and convicted judge 
loses certain benefits that he would otherwise, he or she would 
otherwise be entitled to. Can you follow up on that?
    Mr. Gerhardt. Well, as you know, there are two sanctions 
available. One is removal from office. The other is 
disqualification, which would affect the benefits. So it would 
only be if the House chose to use both sanctions that in fact 
it would result in the circumstance you describe.
    Mr. Johnson. Disqualification, can you go into that?
    Mr. Gerhardt. There have been two people in the history of 
this country who have been both removed from office and 
disqualified. Essentially these two punishments or these two 
sanctions are among the things that make impeachment unique. No 
other body in a sense has the power to do those things, to 
remove somebody from office or to go further to disqualify them 
from certain pensions, certain benefits and also perhaps from 
the opportunity to serve again in the Federal Government. The 
choice as to which sanction should be used, one or both, is up 
to the House.
    Mr. Amar. So with respect--in the case of Judges Archibald 
and Humphreys, I'm actually reading from Professor Gerhardt's 
book, the Senate imposed not just the automatic verdict upon 
guilt of removal from office but basically said these two 
people are forever disqualified from ever again holding a 
public office. You know, so they're basically ineligible to be 
appointed by a later President and confirmed by a later Senate. 
Their impeachment verdict bars them from, disqualifies them 
from public office holding, which actually is not to be equated 
with a Membership in the House or Senate. Those aren't Federal 
officerships, and so that's a different situation. You are 
still constitutionally eligible to serve as a Representative Or 
Senator, but you're disqualified to hold a future office if the 
Senate so determines at the end of its process.
    When it pronounces guilt, it has the choice of just simple 
removal or removal plus disqualification. It can't go further 
than that. It can't throw you in jail. It can't chop off your 
head. The power of an impeachment court is limited to removal 
and disqualification.
    Mr. Johnson. Thank you. No further questions.
    I yield back.
    Mr. Schiff. I thank the gentleman.
    Can I just, Mr. Gonzalez, if I can just follow up with a 
question, because my understanding, Professor, and correct me 
if I'm wrong, is that the disqualification goes to whether they 
can hold further offices, but that upon impeachment without 
disqualification but just the impeachment itself, you lose the 
pension, et cetera, that goes with the job. That was my 
understanding.
    Mr. Gerhardt. I think that that's probably right, though I 
suspect Professor Geyh would know that better than I.
    I'm sorry Charlie, but I think there are requirements, 
obviously, for meriting the pension, but I would have to look 
more specifically at the particular requirements to really be 
sure whether you would actually lose those benefits just upon 
removal.
    Mr. Schiff. Thank you.
    Mr. Gonzalez.
    Oh, I'm sorry, Professor Amar.
    Mr. Amar. To the extent that Professor Geyh mentioned that 
there are lots of previous precedents of people resigning 
during the impeachment investigation process, and I believe 
maybe in the case of Kent, that that happened recently. And to 
the extent that Judge Porteous, the pattern here suggests that, 
well, he's a gambler; maybe he thinks he's just gambling with 
House money here. He's got nothing else to lose. The criminal 
prosecution is off the table. He's taken up a lot of taxpayer 
time and money, and your valuable time.
    So I might take the position that if he were impeached and 
removed, I would be very interested in whether there could be 
any clawback under civil statutes in a proceeding instituted by 
the Justice Department--I haven't investigated and researched 
this--about basically all the money that he was paid as a 
Federal judge, you see really he didn't deserve it. He should 
never have been a Federal judge from day one. And this is part 
of the ill-gotten gain of his fraud.
    And if an impeachment court were to rule in an impeachment 
verdict that his very acquisition of the office was fraudulent, 
not just pension and future payments, but maybe even past 
things might be on the table. And that might actually create--I 
mean, it's just an interesting thing to think about just in 
terms of plea bargaining, so to speak, and inducing 
resignation.
    Mr. Schiff. Thank you, Professor.
    Mr. Gonzalez.
    Mr. Gonzalez. Thank you very much, Mr. Chairman.
    And thanks to the witnesses. It's been very informative, 
and we appreciate your testimony today.
    You've been called here in the instant case, but, 
obviously, what your testimony today and what we do may be 
looked upon by different witnesses prospectively, as you have 
referred to what has transpired in previous impeachment 
proceedings. So my question, even though it relates to the 
instant case, obviously has application I assume in the future 
depending what this Committee and what the House and then what 
the Senate would do if we move in a certain direction.
    In the broader sense, you are really looking at separation 
of powers. And it's a very unique situation, and I think we 
have to be very careful when we proceed. In this particular 
case, I mean, there are so many instances that we could move 
forward on and such. And I think you were pointing out, you can 
do it very generally. You can also have it very specifically 
and so on.
    Something that has concerned me during this discussion is: 
What was the Senate privy to? How much did the Senate know? 
Now, in this case, I mean, there's so much going on that you 
can probably make a representation that the Senate was not 
aware of, never was able to inquire. But is the Senate really 
restricted as to the type of questions and inquiry that can be 
made during the confirmation process? My memory serves me that 
many things are discussed, associations with individuals, 
associations with organizations, to the point where you can 
determine whether someone may even be a racist.
    So I'm just going to add, the first question is: What are 
the limits of a Senate confirmation? To what extent can we rely 
that, to some degree, questions were made, and maybe not in 
this particular case as to all of the allegations, but some? 
That's the first question. The second one is: At what point do 
we quit looking backwards? If a judge is on the Federal bench 
for 10, 15 years and something is discovered: How far back do 
you go?
    Because the ultimate question, and this is the third one, 
have you ever had impeachment proceedings and trial predicated 
more on a political basis than what I would refer to as 
something less than political in nature? As I said, if you look 
at the potential, what could occur--not that it has occurred, 
but the potential it could occur--and especially in modern 
times, could you have something that is completely politically 
motivated? Because I mean you see this happening today, maybe 
not in impeachment proceedings, and the danger that that would 
pose? And would it be preferable to be as narrow and specific 
as possible so that there's not a broad interpretation that 
could be misused/misinterpreted in the future?
    Mr. Gerhardt. Those are great questions, and I will try to 
answer them as briefly as possible. I think the short answer to 
the last question, I think, is it probably is a good idea to be 
narrow to try to deal with the case in front of you, not to 
worry about the next case. That's how the common law typically 
or often evolves, and that's how impeachment itself has evolved 
over time.
    But in terms of the specific questions, first of all, what 
did the Senate know? I'm pretty confident they didn't know 
anything about this.
    I also know from personal experience having worked in the 
Senate side, while I'm here today in my personal capacity, that 
there is voluminous disclosure requirements. The fact that this 
information wasn't found suggests that someone wanted it to be 
hidden. And that in itself, as I've said before, is disturbing.
    The Senate tries to be as thorough as possible. And their 
questions are designed, as Professor Amar and Professor Geyh 
have suggested, to try and elicit as much information as they 
can about somebody's character, about their integrity, to be 
able to serve and to be fit to serve as a Federal judge.
    I don't think the Senate knew this information. I'm 
confident had the Senate known it, it would not have done what 
it did.
    The second question is how far do you--when do you stop 
looking backwards? I can't answer that question. I think the 
evidence is, in a sense, what it is. You're in a better 
position to make a determination about when, in a sense, you 
found enough. The very fact that you feel like there's a morass 
out there of evidence or swamp of it is itself rather 
disturbing and, again, tells you something about the nature of 
this case.
    And the last question is the concern about a purely 
politically motivated impeachment. That's precisely why the 
Framers designed the process the way they did. They divided 
impeachment authority between the House and the Senate. They 
required a majority in the House, a super majority in the 
Senate. And that was purposeful, because they wanted to make it 
difficult. They wanted to ensure at the end of the day, if 
there were a removal, it would likely consist of a bipartisan 
consensus. In order to get two-thirds in the Senate, you would 
have to reach that point; you couldn't just do it on party 
lines.
    The Framers understood that. So they were trying to create 
a process that was both fair and thorough, and there are 
various safeguards along the way, including the division of 
authority between the House and the Senate.
    Mr. Amar. On the three questions, on the issue--just to 
begin at the end, yes, I think it's wonderful if this doesn't--
if impeachment process is not political. And I think Professor 
Gerhardt just nailed it; the best way to do that is to be 
bipartisan. And I haven't sensed as a witness any whiff of any 
kind of partisanship in this. And I think if the impeachment 
managers who go forward reflect both political parties, that 
will be evidence to the country that this is not a political 
thing. It's not left, right, Republican, Democrat.
    I share the--on the second, about sort of when is the past 
buried, here we have ongoing and affirmative concealments. The 
past is reemerging--the State court passed in the Liljeberg 
case on the Federal bench--and so there's a kind of ongoing 
concealment that's relevant to one's duties as a Federal judge. 
And so the past really doesn't stayed buried when you're 
basically committing ongoing misconduct analogous to 
obstruction, a covering up past misdeeds.
    So it's not quite like Jean Valjean and having stolen a 
loaf of bread a long time ago and having led a wonderful life 
in between, and then somehow it comes back to haunt you.
    On the most narrow basis for impeachment, I share Mike's 
instinct. My own thought was for me the easiest--there are so 
many things here, but if we talk about the bankruptcy, well, 
that's arguably private. The State court stuff, well, that's 
arguably just State court stuff.
    But I think the clear misconduct in the confirmation 
process itself is very clean and also shows that this isn't 
really punitive; you're not actually taking away something that 
was ever rightfully his, you know, punishing him for something 
deep in his past. He never should have gotten this position. He 
got it only because he lied. Someone else was entitled to this 
in effect, and he took it out of the hands of someone who would 
have, you know, been a more honest candidate. And that's a 
pretty narrow basis actually for this, not remotely punitive.
    Mr. Geyh. Two quick points. One is, you asked about how far 
back impeachable behavior can go. And it seems to me that the 
answer has got to be, that depends on the behavior. I mean, if 
the standard that you're looking to deal with is whether the 
judge is currently unfit for office, in other words, that he 
has committed a political crime that violates the public trust, 
then you would look, you know, at what that behavior is and 
whether it impacts your current assessment.
    For example, if a 60-year old judge is discovered to be the 
second coming of Bernie Madoff in his 30's, that may well be 
the kind of behavior that you would look at and say, my God. 
Despite the fact that it occurred decades ago, it is criminal 
behavior of an extraordinary sort that would justify us looking 
at that for impeachment today.
    The political impeachment point, I'll offer one 
embellishment, which is that there's a trajectory here with 
politicized impeachments. When Justice Chase was impeached 
really in the very early days, it was for political purposes. 
People were furious with his decisions. The party in power was 
going after a judge from the party out of power. And there are 
episodes of politicized impeachments in the early stages; for 
example Judge Peck.
    And later they all failed, and I think they failed for 
reasons that Mike refers to. And you know, I think it's telling 
that in the last 15 years, we've had some Members of this body 
arguing for the impeachment of judges because they don't like 
their decisions, and those really never left the chute. And I 
think the reason is that we have norms in place for over 200 
years that say, we're not going to go there. None of them have 
succeeded, and we're not going to start now, and particularly 
if we focus and keep impeachment proceedings focused on this 
kind of matter--no one is going after this judge because of the 
decisions he's made--that we're focusing on targeting specific 
behavior that falls into conventional notions of misconduct, I 
think we're fine.
    Mr. Gonzalez. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Schiff. Thank you. The gentleman yields back.
    Judge Porteous'sattorney Mr. Westling is now recognized for 
10 minutes to question witnesses.
    Mr. Westling. Thank you, Mr. Chairman.
    Gentlemen, I don't think I'll have too many questions.
    I wanted to start with Professor Amar, if I may. You 
commented on the fact that impeachment from a procedural point 
of view is not the same as a criminal trial, and in particular, 
you address the issue of the application of the Fifth Amendment 
self-incrimination clause. I note that the way that it's worded 
both verbally here today and in your written testimony says 
``should not apply in all respects.'' Are there certain 
respects in which you think it should apply?
    Mr. Amar. I'm not sure that it should apply at all. But 
doctrine does distinguish between using the fruits, the derived 
fruits of compelled testimony on the one hand and using 
testimony, compelled testimony itself, on the other. So, for 
example, in the Miranda context, the doctrine is for 
unintentional Miranda violations, and Miranda is connected to 
the self-incrimination clause under Supreme Court doctrine. If 
someone was improperly Mirandized, the fruits are admissible, 
but the statement itself is actually itself often not 
admissible. And so one could actually distinguish between the 
compelled testimony itself and the fruits.
    Here's another distinction in the doctrine. The doctrine in 
compelled self-incrimination says that the jury is not to draw 
any adverse inferences from a defendant who stands mute, and 
indeed, a defense attorney is entitled to an introduction from 
the judge to that effect. That goes beyond what the Fifth 
Amendment's words say. It's a later development and, in my 
view, partly because the rules of evidence don't really apply, 
for reasons that Mike Gerhardt has explained in great detail. 
That's another sort of aspect.
    So I myself think perhaps none of the Fifth Amendment, in 
fact, self-incrimination should apply. Due process, yes; other 
basic fairness, yes. But it's possible to imagine sort of a 
less exuberant position that compelled testimony should be 
excluded, but the fruits are allowable, and adverse inferences 
are allowable.
    Mr. Westling. Thank you.
    Gentlemen this is a question for all three of you, and it, 
again, relates to the Fifth Amendment issue. Are you all aware 
of any case in the past involving impeachment where immunized 
testimony of a judge who is the subject of the impeachment has 
been used as evidence in that case?
    Mr. Geyh. I am not.
    Mr. Gerhardt. I am not either, but I don't think it has, as 
you know, any significance.
    Mr. Amar. Nor am I.
    Mr. Westling. Thank you. Now, I want to turn to----
    Mr. Amar. And I am also not aware of precedents at least 
that are held in high regard. I don't know any in fact in which 
Article III judges have tried to interfere with ongoing 
impeachment proceedings on any pretext.
    Mr. Westling. I appreciate that. There's always room for 
levity, I hope.
    Gentlemen, you've discussed at some length your view that 
the judgeship here involving Judge Porteous was procured in 
part due to his failure to disclose certain things. I think the 
opinion has been as well that he may have actually lied or made 
misrepresentations.
    I'm not going to quibble with those statements. I 
understand your testimony. I suppose the question that I have 
is, if the Senate were aware of allegations of the type that 
were not disclosed and investigated them and found that they 
were not valid in some way, would that change your answer about 
the impact of Judge Porteous'sstatements?
    Mr. Gerhardt. Can I just ask a clarification? You meant at 
the time of the confirmation, they investigated and found?
    Mr. Westling. That's correct.
    Mr. Gerhardt. I have--I will probably give you two separate 
answers.
    I mean, one is I think that it is possible if the Senate is 
made aware of information and they proceed in light of it after 
doing factfinding, they've effectively ratified it, that 
they've effectively made their decision that that's not 
disqualifying information.
    But there's also a question about the nature of the 
factfinding. In other words, a lot just depends upon what it is 
the Senate looked at. In other words, let's say they looked at 
one thing, didn't find a problem, but didn't look in another 
direction where there was a problem. So it becomes complex; 
that is to say, what did they know, and when did they know it?
    Mr. Westling. Does anybody have anything to add or a 
different viewpoint?
    Mr. Amar. They're in a very good position to decide what 
they thought they were being told and not being told, so I 
think this is not--this is an impeachment of someone who became 
a judge by a vote of the Senate. And what this House is 
allowing is the Senate to have a revote, and they're not going 
to do it lightly. They don't--it requires a two-thirds vote, 
which is a very important safeguard in the process.
    So if--I suppose if someone subject to the confirmation 
process were affirmatively told, yes, we know about all of 
this, and we're okay with it, and we just want you for the 
record to say a certain thing, well, then it might be unfair 
then to say, ah, but the one thing that you said was a little 
misleading in isolation because it was in the context of some 
largerunderstanding in which we all knew that certain things 
were not within the main scope of the question. So if there 
were a larger context behind the question.
    But you know, I basically think the question was at its 
core, have you been an honest public servant? And there was an 
affirmative misrepresentation. And it's hard for me to sort of 
imagine facts that would change that. It would change my view 
of the Senate quite a lot if you told me, oh, well, there's 
some background understanding that when we asked you, you know, 
X, what we really mean is not X. And you know, unless we say 
Simon Says or Mother May or something, you're supposed to not 
understand that we mean these words in their pretty obvious 
straightforward sense.
    Mr. Westling. I would note, I guess, in following up on 
that, that I think the supposition by the panel, understandably 
based on the facts that have been presented, is that certain 
events have taken place, and they have a certain character to 
them.
    What is less clear to me is whether that was what the 
Senate investigation revealed. Clearly, FBI agents went out and 
interviewed people. They looked into allegations, and they made 
a report back. And I guess what is fair to say is that nobody 
in this room really knows what the content of that 
investigation was, what its findings were or what the 
conclusions were. Is that a fair statement?
    Mr. Amar. I suppose. I have to confess, my own tendency is 
to be pretty skeptical when wrongdoers try to put other people 
on trial rather than to own up to their own responsibility for 
their own gross misconduct. And so I balk, with all due 
respect, at sort of trying to basically blame the Senate for 
this sort of thing.
    I believe actually there was an affirmative--in answer to 
Chairman Schiff's question earlier, we don't need to go that 
far. But I actually think there's affirmative obligation for 
someone in this situation to actually come forward, even before 
being asked with this, and that any honorable person, you know, 
decent person, would actually understand that. And so, you 
know--and so I don't think actually the thrust of a defense 
that tries to sort of blame others for not having done the 
investigation moves me very much. It actually seems chutzpah to 
me.
    Mr. Geyh. I have a hard time imagining what kind of 
information would have been elicited behind the scenes that 
would cause me to think differently about these relatively 
straightforward questions that Judge Porteous answered in the 
negative. I'm left to think there are obvious answers here that 
aren't being made, and I can't imagine what would change my 
mind about that.
    Mr. Gerhardt. I would echo those comments. I think that 
it's probably fair to infer that the Senate was not aware of 
the information. The fact is that, you know, we ought to 
remember. I mean, people have talked about the confirmation 
process being much--not just more intrusive, that is to say, it 
doesn't just seek more information; it's become more embattled. 
And the kind of information that would clearly in a sense stop 
a nomination I think would be some evidence of wrongdoing or 
some other egregious misconduct. So it's I think almost 
unimaginable, at least to me, that there would be any 
revelation of misconduct of the sorts we've been talking about 
that would simply cause the Senate to look the other way or to 
treat it differently. The fact is we're setting precedents all 
over the place. And if that were true, then the Senate will 
have to be accountable for having set a precedent I think that 
is a very dangerous one.
    Mr. Westling. I, perhaps, should clarify. My suggestion in 
no way was that the Senate knew about this and determined to go 
forward despite knowing it. I think my question is simply one 
of, we know there was an investigation. What we don't know is 
whether it concluded there was credibility to any of these 
allegations. And I would suggest to you for your comment that 
while we sit here today with a different record before us, it's 
largely based on years of a Department of Justice investigation 
that has muted facts over time.
    Mr. Gerhardt. It's a fair point. Although I would also 
suggest that there's nothing that precludes the Senate if it 
has an opportunity to do another investigation, to reach a 
different judgment. That's the nature of the impeachment 
process. In fact, the appointment process and impeachment 
process are separate processes. And so the Senate may be fully 
entitled, fully empowered to do its own factfinding, do a 
separate factfinding, or act upon different facts revealed at a 
different time that have come to light since its last action.
    Mr. Amar. And I was not aware that the Justice Department 
took a close look at the representations made during the 
confirmation process. Maybe they were. But when I just look at 
the pieces of paper in front of me, and I see a pretty direct 
question and a pretty direct misstatement in response, a lie, a 
fraud, a falsehood, it's hard for me to imagine facts that 
would change my mind about that.
    Mr. Gerhardt. In fact, I might even take note that the 
vetting process with respect to judges includes not just the 
Justice Department looking at a nominee but also the FBI and of 
course later the Senate. So there are many opportunities for 
this information to have come to light. And again, the 
likelihood is that they didn't, and it didn't. That tells us 
something about the quality of the process. And so in some 
respects, I'm very concerned about the undermining of the 
integrity of the confirmation process.
    Mr. Westling. Mr. Chairman, I note my light is on. May I 
proceed.
    Mr. Schiff. Yes, of course.
    Mr. Westling. Thank you. A couple of more questions and, 
hopefully, we'll be able to wind this up, at least from my 
perspective. The first is that there's been some discussion by 
the panel about impeachment based on conduct occurring prior to 
one's swearing in as a Federal officer, and there's been 
testimony on that regard. I'm simply interested in knowing 
whether there has ever been a prior impeachment based on events 
that took place prior to the person being a Federal officer.
    Mr. Gerhardt. No. I mean, there's not been any successful 
impeachment; that is to say, moved through the House or the 
Senate.
    But again, I don't know that that's of any significance. I 
think that the fact is that, you know, you've got to take the 
evidence in the case that you've gotten. As I supposed in my 
written testimony, imagine somebody had committed a murder 
before they were ever nominated to a particular office. But if 
that fact had not been disclosed to the Senate, it wouldn't 
preclude the House later from saying that's egregious 
misconduct, completely incompatible with the office that you 
now hold. In fact, it's a breach of the public trust for you to 
actually--for that information not, in a sense, to have 
disqualified you.
    Mr. Amar. There are not very many impeachment precedents, 
but there is constitutional text. There is constitutional 
history. There is constitutional structure. There is common 
sense.
    Here's what I wrote on this very question in 2005, based on 
an article, based on I think a presentation I made to the 
Federalist Society, actually, in 1998 or 1999: ``In the case of 
an officer who did not take bribes but gave them, paying men to 
vote for him, the bribery would undermine the very legitimacy 
of the election that brought him to office.''
    So that's pre-office-holding misconduct, straight in the 
middle of the impeachment clause--treason, bribery or other 
high crimes and misdemeanors--so if you commit bribery in order 
to get your position, of course that's impeachable. And that's 
before you've been commissioned as an officer.
    And that's just pretty obvious whether there actually has 
been--now, there may have been some resignations or something 
when this came to light. But maybe, you know, part of it is, 
very few people in the past have had the audacity to try to 
sort of make, the chutzpah, to try to make this argument once 
it came to light that you procured your very office by false 
pretenses, and now you're hanging on to the thing and taking 
taxpayer money. Have you no sense of shame?
    Mr. Gerhardt. I think there are a couple of things. One is 
that I think the modern process, the modern vetting process, 
both in terms of nominations and confirmations, has been much 
more thorough. And thus it becomes significant if it doesn't 
stumble across something.
    But since Akhil has begun this precedent, I will follow it 
as well and just note something else that I had written over a 
decade ago that seems quite pertinent today. I wrote that there 
might be some difficult cases on the lines that you were 
talking about, possibly impeaching somebody for a prior 
criminal misconduct before they entered office. But ``it's easy 
to imagine instances in which impeachable offenses can be based 
on present misconduct consisting of fraudulent suppression or 
misrepresentation of prior misconduct. Particularly in cases in 
which an elected or confirmed official had lied or committed a 
serious act of wrongdoing to get into his present position. The 
misconduct that was committed prior to entering office clearly 
bears on the integrity of the way in which the present 
officeholder entered office and the integrity of that official 
to remain in office.''
    Mr. Geyh. There is a litany of behaviors that people could 
engage in that everyone would agree are impeachable that 
haven't occurred yet. I'm not sure, with the possible exception 
of West Humphreys, I don't even think--has anyone been 
convicted of treason per se? And everyone would agree it's an 
impeachable offense. It hasn't happened. Does that mean it 
really has been written out of the books? No.
    Mr. Gerhardt. There is, as it turns out, a first time for 
everything. And that would have been true for the first time 
the President vetoed something. It would be true for the first 
time that a judge got impeached for bribery. That would have 
been the first time that that would have happened. And so on.
    So the fact that this might be the first time that we're 
actually looking at prior misconduct doesn't mean that we 
shouldn't. It means we should be careful. That's what we're 
doing here today. But I think that there's a nexus between that 
misconduct and the fitness of that person to continue to serve 
in office.
    Mr. Westling. And my final question is for you, Professor 
Geyh.
    If you could just explain briefly the interplay between the 
impeachment mechanism and the Judicial Discipline Act that 
typically is used to evaluate and discipline judges for certain 
kinds of behavior. Why is one used? Why is the other used? How 
do they relate to one another?
    Mr. Geyh. I think when Congress decided to go ahead with 
the Judicial Conduct and Disability Act, it was because of the 
perception that there is a lot of misconduct that's going 
forward that really doesn't rise to the level of impeachable 
conduct. And so when you engage in conduct prejudicial to the 
expeditious administration of justice, the statute says that 
you can go through this process going forward at the Judicial 
Council level culminating in sanctions ranging from mild slap 
on the wrist to public censure, and at the most extreme level, 
what has happened here going on up to the Judicial Conference 
with a recommendation that Congress investigate for impeachment 
purposes.
    To my way of thinking, the same conduct can work its way 
through the process separately or independently. In other 
words, it's quite possible, if the Judicial Conference chooses 
not to look at something, that this body may choose to do it 
independently, and that would be perfectly acceptable.
    The standards are different. I mean, there it's the 
expeditious administration of justice that's really the focus, 
and here it's high crimes and misdemeanors. But certainly high 
crimes and misdemeanors interfere with the expeditious 
administration of justice and you have that kind of overlap.
    Mr. Westling. Thank you, Mr. Chairman.
    I have no further questions.
    Mr. Schiff. Thank you, counsel.
    Just one other question, and we're going to try to finish 
before we head off to vote.
    A follow-up to one of Mr. Westling's questions. I assume 
that your view, the views you've expressed would be the same if 
the fact pattern were such that during the background process 
for the Senate confirmation, the FBI was made aware of certain 
rumors about Judge Porteous that they investigated and were 
unable to corroborate because witnesses were not honest with 
them.
    We heard testimony from a bail bondsman who said that he 
basically didn't tell the FBI about any of the conduct because 
he knew it would adversely affect his confirmation. And he was 
immediately asked by the judge basically, what did they ask 
you? What did you say?
    If the FBI investigator wasn't able to corroborate, but 
nonetheless, during the course of subsequent investigation, the 
allegations were demonstrated to be true or the judge admitted 
the allegations, I assume that would not affect your judgment; 
that wouldn't be sufficient notification to the Senate to 
change your view of things.
    Mr. Amar. In my view, it would make the situation even 
worse. And I think Professor Geyh may have mentioned this a 
little bit in his testimony. If there were evidence that Judge 
Porteous communicated with other witnesses--people who were 
being questioned by the government officials and then tried to 
find out what they had actually said, and that very much bears 
on his credibility--whether it rises to a level of conspiracy, 
bears on his credibility about what then he is saying and not 
saying. That again suggests sort of a level of purposeful 
deception here that, if anything, makes the thing worse in my 
mind, more corrupt.
    Mr. Gerhardt. I had tried to suggest something along those 
lines in answering Mr. Westling's question. I think the fact 
that there might have been an investigation might be of no real 
significance. A prior investigation isn't a free pass because 
the facts can change. You know, new facts can come to light.
    And if we have a prior investigation that's been done but 
basically either was not able to substantiate something or find 
something because it was being suppressed, that shouldn't 
preclude Congress from reopening the investigation in light of 
other evidence. That's I think precisely what this process is 
all about.
    Mr. Geyh. I'm in the same place on this one. It seems to me 
that if a nominee lies under oath for the reasons that 
Professor Amar spoke of, that is a serious matter.
    But I get a little uneasy about the notion of going into 
the business of estoppel, you know estoppel arguments that 
somehow the House of Representatives is estopped from doing 
something because the Senate did it differently or badly. It 
seems to me that this body has an independent duty to 
investigate. I mean, certainly it's going to be perhaps 
affected by whether the other body thought long and hard about 
a matter and came to a conclusion. But to me, the more 
fundamental point is, did he lie under oath? If so, that gives 
rise to a lot of concern.
    Mr. Gerhardt. I seem to recall, I didn't study this for 
today, but I seem to recall, in the late 1980's, the Senate 
expressly rejected the opportunity for estoppel in at least one 
of those 1980's impeachment trials.
    Mr. Amar. And with respect, that's why--I wasn't just 
trying to be flip in the last words of my testimony. There are 
about six different issues about as to which this little 
lawyer's joke keeps coming into my head; you know, that's 
great, Your Honor, does this mean I can keep the money? Because 
what's being, you know, put forth here is keeping the ill-
gotten gain just because you've managed to get lucky enough to 
escape Justice Department prosecution or have escaped the 
scrutiny of the Senate the first time around. It's audacious.
    Mr. Schiff. Do any of my colleagues have any further 
questions?
    Seeing none, in closing, I would like to reiterate that the 
Task Force invited Judge Porteous to testify before us, but he 
has declined.
    In addition, the Task Force afforded the opportunity for 
Judge Porteous and his counsel to request that the Task Force 
hear from a witness or witnesses that they would wish to call.
    Judge Porteous'scounsel has informed the Task Force that 
they would not avail themselves of this opportunity.
    The written statements of the witnesses today were made 
part of the record.
    And I want to thank the witnesses for their testimony 
today. I really appreciate your time, Professors, and the 
opportunity to question professors. So it's just been a nice 
turn, but it's fair play.
    Without objection, the record will remain open for 5 
legislative days for the submission of any additional 
materials. This hearing of the Impeachment Task Force is 
adjourned.
    [Whereupon, at 12:17 p.m., the Task Force was adjourned.]

                                 
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