[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)
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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
Available via the World Wide Web: http://judiciary.house.gov
----------
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Washington, DC 20402-0001
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
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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
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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)
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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.]