[Congressional Record Volume 156, Number 58 (Thursday, April 22, 2010)]
[Senate]
[Pages S2601-S2603]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             ARTICLES OF IMPEACHMENT AGAINST JUDGE PORTEOUS

  The PRESIDING OFFICER. The Chair submits to the Senate for printing 
in the Senate Journal and in the Congressional Record the amended 
replication of the House of Representatives to the Answer of Judge G. 
Thomas Porteous, Jr., to the Articles of Impeachment against Judge 
Porteous, pursuant to S. Res. 457, 111th Congress, Second Session, 
which replication was received by the Secretary of the Senate on April 
22, 2010.
  The amended replication of the House of Representatives is as 
follows:

                                Congress of the United States,

                                    Washington, DC, Apr. 22, 2010.
     Impeachment of G. Thomas Porteous, Jr., United States 
       District Judge for the Eastern District of Louisiana, 
       Amended Replication.
     Hon. Nancy Erickson,
     Secretary of the Senate, U.S. Senate, Washington, DC.
       Dear Ms. Erickson: Enclosed please find the Amended 
     Replication of the House of Representatives to the Answer of 
     G. Thomas Porteous, Jr., to the Articles of Impeachment.
       A copy of this letter and the Amended Replication will be 
     served upon counsel for Judge Porteous today through 
     electronic mail.
           Sincerely,
                                                    Alan I. Baron,
                                      Special Impeachment Counsel.

                   In the Senate of the United States

Sitting as a Court of Impeachment
                                  ____


 In re: Impeachment of G. Thomas Porteous, Jr., United States District 
Judge for the Eastern District of Louisiana
                                  ____


                                AMENDED

REPLICATION OF THE HOUSE OF REPRESENTATIVES TO THE ANSWER OF G. THOMAS 
             PORTEOUS, JR., TO THE ARTICLES OF IMPEACHMENT

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

                        Response to the Preamble

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

                               Article I

       The House of Representatives denies each and every 
     statement in the Answer to Article I that denies the acts, 
     knowledge, intent

[[Page S2602]]

     or wrongful conduct charged against Respondent.


                       FIRST AFFIRMATIVE DEFENSE

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


                       SECOND AFFIRMATIVE DEFENSE

       The House of Representatives denies each and every 
     allegation of this purported affirmative defense, namely, 
     that Article I is vague. To the contrary, Article I sets 
     forth several precise and narrow factual assertions 
     associated with Judge Porteous's handling of a civil case 
     (the Liljeberg litigation), including allegations that Judge 
     Porteous ``denied a motion to recuse himself from the case, 
     despite the fact that he had a corrupt financial relationship 
     with the law firm of Amato & Creely, P.C. which had entered 
     the case to represent Liljeberg'' and that while that case 
     was pending, Judge Porteous ``solicited and accepted things 
     of value from both Amato and his law partner Creely, 
     including a payment of thousands of dollars in cash.'' There 
     is no vagueness whatsoever in these allegations. Article I's 
     allegation that Judge Porteous deprived the public and the 
     Court of Appeals of his ``honest services''--a phrase to 
     which Judge Porteous raises a particular objection--could not 
     be more clear and free of ambiguity as used in this Article, 
     and accurately describes Judge Porteous's dishonesty in 
     handling a case, including his distortion of the factual 
     record so that his ruling on the recusal motion was not 
     capable of appellate review.\3\


                       THIRD AFFIRMATIVE DEFENSE

       The House of Representatives denies each and every 
     allegation of the purported affirmative defense that Article 
     I charges more than one offense. The plain reading of Article 
     I is that Judge Porteous committed misconduct in his handling 
     of the Liljeberg case by means of a course of conduct 
     involving his financial relationships with the attorneys in 
     that case and his failure to disclose those relationships or 
     take other appropriate judicial action. The separate acts set 
     forth in Article I constitute part of a single unified scheme 
     involving Judge Porteous's dishonesty in handling Liljeberg. 
     Further, the charges in this Article are fully consistent 
     with impeachment precedent.\4\


                       FOURTH AFFIRMATIVE DEFENSE

       The House of Representatives denies each and every 
     allegation of this purported affirmative defense, which, in 
     effect, seeks to suppress the statements of a highly educated 
     and experienced Federal judge, made under oath, before other 
     Federal judges. Judge Porteous was provided a grant of 
     immunity in connection with his Fifth Circuit Hearing 
     testimony, and the immunity order provided that his testimony 
     from that proceeding could not be used against him in 
     ``any criminal case.'' Simply put, an impeachment trial is 
     not a criminal case.\5\ Accordingly, there is simply no 
     credible basis to argue that the Senate should not 
     consider Judge Porteous's immunized Fifth Circuit 
     testimony.

                          Answer to Article II

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


                       FIRST AFFIRMATIVE DEFENSE

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


                       SECOND AFFIRMATIVE DEFENSE

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


                       THIRD AFFIRMATIVE DEFENSE

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


                       FOURTH AFFIRMATIVE DEFENSE

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

                              Article III

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


                       FIRST AFFIRMATIVE DEFENSE

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


                       SECOND AFFIRMATIVE DEFENSE

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


                       THIRD AFFIRMATIVE DEFENSE

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


                       FOURTH AFFIRMATIVE DEFENSE

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


                       FIFTH AFFIRMATIVE DEFENSE

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

                               Article IV

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


                       FIRST AFFIRMATIVE DEFENSE

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


                       SECOND AFFIRMATIVE DEFENSE

       The House of Representatives denies each and every 
     allegation of this purported affirmative defense, which 
     alleges the Article is vague. The allegations sets forth in 
     Article IV are specific and precise. In fact, Judge 
     Porteous's description of the charge fairly characterizes the 
     offense: ``In essence, Article IV alleges that Judge Porteous 
     gave false answers on various forms that were presented in 
     connection with the background investigation. . . .'' It is 
     apparent, therefore, that Judge Porteous has a clear 
     understanding of these allegations in Article IV, which 
     specify the dates and circumstances

[[Page S2603]]

     when the statements were made, and the contents of the 
     statements that are alleged to have been false. There is no 
     credible contention that the Article IV does not provide 
     Judge Porteous specific notice as to what this Article 
     alleges.


                       THIRD AFFIRMATIVE DEFENSE

       The House of Representatives denies each and every 
     allegation of this purported affirmative defense. The 
     allegation sets forth in Article IV are specific and precise. 
     They charge in substance that Judge Porteous made a series of 
     false statements to conceal the fact of his improper and 
     corrupt relationships with the Marcottes and with attorneys 
     Creely and Amato in order to procure the position of United 
     States District Court Judge. Charging these four 
     false statements, all involving a single issue, in a 
     single Article is consistent with precedent.\8\


                       FOURTH AFFIRMATIVE DEFENSE

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

                   The U.S. House of Representatives

           By
     Adam Schiff,
       Manager,
     Bob Goodlatte,
       Manager,
     Alan I. Baron,
       Special Impeachment Counsel.
       Managers of the House of Representatives: Adam B. Schiff, 
     Bob Goodlatte, Zoe Lofgren, Henry C. ``Hank'' Johnson, F. 
     James Sensenbrenner, Jr.

     April 22, 2010.


                                ENDNOTES

       \1\ Judge Harry E. Claiborne was acquitted of Article III, 
     charging that he ``was found guilty by a twelve-person jury'' 
     of criminal violations of the tax code, and that ``a 
     judgement of conviction was entered against [him].'' See 
     ``Impeachment of Harry E. Claiborne,'' H. Res. 471, 99th 
     Cong., 2d Sess. (1986) (Articles of Impeachment); 132 Cong. 
     Rec. S 15761 (daily ed. Oct. 9, 1986) (acquitting him on 
     Article III).
       \2\ Moreover, the Department of Justice's investigation 
     hardly vindicated Judge Porteous. To the contrary, the 
     Department viewed Judge Porteous's misconduct as so 
     significant that it referred the matter to the Fifth Circuit 
     for disciplinary review and potential impeachment, and set 
     forth its findings in its referral letter.
       \3\ Judge Porteous treats Article I as if it alleges the 
     criminal offense of ``honest services fraud,'' in violation 
     of Title 18, United States Code, Section 1346, and that 
     because the term ``honest services'' has been challenged as 
     vague in the criminal context, the term is likewise vague as 
     used in Article I. Despite Judge Porteous's suggestion to the 
     contrary, Article I does not allege a violation of the 
     ``honest services'' statute. Moreover, it could hardly be 
     contended that proof that Judge Porteous acted dishonestly in 
     the performance of his official duties does not go to the 
     very heart of the Senate's determination of whether he is fit 
     to hold office.
       \4\ The respective Articles of Impeachment against Judges 
     Halsted L. Ritter, Harold Louderback, and Robert W. Archbald 
     each set forth lengthy descriptions of judicial misconduct 
     arising from improper financial relationships between those 
     judges and the private parties. These consist of detailed 
     narration specifying numerous discrete acts. See 
     ``Impeachment of Judge Halsted L. Ritter,'' H. Res. 422, 74th 
     Cong., 2d Sess. (March 2, 1936) and ``Amendments to Articles 
     of Impeachment Against Halsted L. Ritter,'' H. Res. 471, 74th 
     Cong., 2d Sess. (March 30, 1936), reprinted in ``Impeachment, 
     Selected Materials, House Comm. on the Judiciary,'' Comm. 
     Print (1973) [hereinafter ``1973 Committee Print''] at 188-
     197 (H. Res. 422), 198-202 (H. Res. 471); [``Articles of 
     Impeachment against Judge Robert W. Archbald''], H. Res. 622, 
     62d Cong., 2d Sess (1912), 48 Cong Rec. (House) July 8, 1912 
     (8705-08), reprinted in 1973 Committee Print at 176; and 
     [``Articles of Impeachment against George W. English,''] Cong 
     Rec. (House), Mar. 25, 1926 (6283-87), reprinted in 1973 
     Committee Print at 162.
       \5\ The Constitution makes it clear that impeachment was 
     not considered by the Framers to be a criminal proceeding. It 
     provides: ``Judgment in Cases of Impeachment shall not extend 
     further than to removal from Office, and disqualification to 
     hold and enjoy any Office of honor, Trust or Profit under the 
     United States: but the Party convicted shall nevertheless be 
     liable and subject to Indictment, Trial, Judgment and 
     Punishment, according to Law.'' U.S. Const., Art. 3, cl. 7. 
     See also, United States v. Nixon, 506 U.S. 224, 234 (1993) 
     (``There are two additional reasons why the Judiciary, and 
     the Supreme Court in particular, were not chosen to have any 
     role in impeachments. First, the Framers recognized that most 
     likely there would be two sets of proceedings for individuals 
     who commit impeachable offenses--the impeachment trial and a 
     separate criminal trial. In fact, the Constitution explicitly 
     provides for two separate proceedings. . . . The Framers 
     deliberately separated the two forums to avoid raising the 
     specter of bias and to ensure independent judgments . . .'').
       \6\ As but one example, if the pre-Federal bench conduct 
     consisted of treason, there could be no credible contention 
     that such conduct would not provide a basis for impeachment.
       \7\ It should be noted that Judge Porteous has testified 
     and cross-examined witnesses at the Fifth Circuit Hearing on 
     the subject of his bankruptcy, and the House therefore 
     possesses evidence that was unavailable to the Department of 
     Justice.
       \8\ As but one example, Article III of the Articles of 
     Impeachment against Judge Walter Nixon charged that he 
     concealed material facts from the Federal Bureau of 
     Investigation and the Department of Justice by making six, 
     specified, false statements on April 18, 1984 at an 
     interview, and by making seven discrete false statements 
     under oath to the Grand Jury. ``Impeachment of Walter L. 
     Nixon, Jr.,'' H. Res. 87, 101st Cong., 1st Sess. (1989) 
     (Article III).

                          ____________________