[Congressional Record Volume 156, Number 166 (Wednesday, December 15, 2010)]
[Senate]
[Pages S10282-S10288]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PORTEOUS IMPEACHMENT
Mrs. McCASKILL. Mr. President, I ask unanimous consent that a joint
statement by myself and Senator Hatch regarding the Porteous
impeachment be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Joint Statement of Senator Claire McCaskill, Chairman and Senator Orrin
G. Hatch, Vice Chairman, U.S. Senate Impeachment Trial Committee on the
Articles Against Judge G. Thomas Porteous, Jr. of the Eastern District
of Louisiana
Because the Senate deliberated in closed session, this
statement is the only opportunity during the formal
impeachment trial process to formally explain our votes and
to offer some views on certain issues for future
consideration. We independently evaluated the articles of
impeachment brought by the House of Representatives and the
motions field by Judge Porteous. Because we came to the same
conclusions and share many of the same views regarding the
articles and motions, we thought it most useful to file a
joint statement for the record.
The unique nature of impeachment, what it is and what it is
not, is an essential guiding principle for the impeachment
trial process. Impeachment is a legislative, not a judicial,
process for evaluating whether the conduct of certain federal
officials renders them unfit to continue in office. Our
impeachment precedents give some general definition to the
kind of conduct that may meet this standard. The Senate, for
example, convicted and removed U.S. District Judge Halsted
Ritter in 1933 for bringing his court into ``scandal and
disrepute.'' Similarly, during the impeachment trial of U.S.
District Judge Alcee Hastings, the President Pro Tempore
stated that the question is whether the defendant ``has
undermined confidence in the integrity and impartiality of
the judiciary and betrayed the trust of the people of the
United States.''
A consistent focus on the essential nature of impeachment
helps answer many of the questions that arise in the
impeachment trial process. For example, it sets impeachment
apart from the civil or criminal justice processes. Federal
officials may be impeached for conduct covered by the
criminal law for which they have been convicted, acquitted,
or not prosecuted, as well as for conduct that is not
criminal at all. Standards of proof that apply in those
contexts do not necessarily apply in an impeachment trial; in
fact, there exists no single or uniform standard of proof
that the Senate as a body must apply.
There also exists no rigid standard for the form that
articles of impeachment must take. The Constitution gives the
``sole power of impeachment'' to the House of
Representatives, which necessarily includes substantial
authority to frame articles of impeachment. As it did in the
Hastings impeachment, this may result in articles that each
alleges an individual act. But other cases, like the present
one, may involve distinct sets or categories of conduct. Just
as impeachments arise out of different sets of facts,
impeachment articles may take more than one form. In every
case, however, the House must prove that the conduct alleged
in the articles that it frames and exhibits to the Senate
justifies removing a federal official from office.
In July, Judge Porteous filed with the Senate Impeachment
Trial Committee a motion to dismiss the articles of
impeachment as ``unconstitutionally aggregated.'' Before the
full Senate, he revised this motion to request that the
Senate take a preliminary vote on each allegation, a total by
his count of approximately 25, contained in the articles. The
Committee denied the original motion to dismiss and we joined
the Senate in unanimously defeating the revised motion. Even
though the articles of impeachment include multiple
allegations, we believe that each meets the standard
established by the Senate Impeachment Trial Committee during
the impeachment of U.S. District Judge Walter Nixon and
adopted in the present case. Each article presents a coherent
and intelligible accusation that properly serves as the basis
for the impeachment trial. The need for proving individual
elements of an offense is appropriate for the criminal law
but, as mentioned earlier, impeachable offenses need not be
prohibited by the criminal law at all. Requiring a separate
vote on every allegation contained within an impeachment
article effectively re-drafts that article, with the result
that the Senate would vote on an impeachment matter that the
House did not adopt. Finally, Rule 23 of the Senate's
impeachment rules explicitly prohibits dividing articles of
impeachment for the purpose of voting ``at any time during
the trial.''
Unless absolutely necessary, impeachment trials should be
decided not on the basis of motions that make broad
statements or set broad precedents, but on the merits of
individual cases and articles of impeachment as the House
frames and exhibits them. In this case, each article of
impeachment alleged not a collection of unrelated acts but
coherent patterns or sets of conduct. The question for the
Senate was whether the conduct alleged in each article
justified removing Judge Porteous from the bench.
One somewhat novel issue raised in this case was whether a
federal official may be impeached on articles that allege
conduct occurring before he took federal office. The proper
focus on the essential nature of impeachment is again
important here. Judge Porteous argued for an absolute,
categorical rule that would preclude impeachment and removal
for any pre-federal conduct. That should not be the rule any
more than allowing impeachment for any pre-federal conduct
that is entirely unrelated to the federal office or the
individual's conduct in that office.
Pre-federal conduct should not itself ordinarily be the
primary basis for impeachment. Particularly egregious pre-
federal conduct that, by itself, would justify impeachment
and removal would likely have prevented an individual's
appointment in the first place. In most cases, therefore, the
question is whether a federal official's conduct since taking
office warrants removal from that office. That is the
question in the present case because none of the articles of
impeachment against Judge Porteous is based entirely on pre-
federal conduct.
The conduct alleged in Article I contained substantial pre-
federal and federal conduct. The House framed the article to
include a kickback scheme whereby the law firm of Jacob Amato
and Robert Creely would receive curatorship case appointments
from Judge Porteous in exchange for Creely and Amato paying
some of the fees back to Judge Porteous through the hands of
Creely. All parties agree that there was no explicit
agreement regarding these cases, but it is estimated that
approximately half of the fees went back to Judge Porteous.
The curatorship kickback scheme, by definition, could only
have occurred during Judge Porteous's time on the state
bench. When Judge Porteous, after his appointment to the
federal bench, could no longer assign curatorship cases to
Amato and Creely, the money stopped coming to Judge Porteous
from Amato and Creely.
This pre-federal conduct flowed into Judge Porteous's
federal service in two documented instances. First, Amato was
brought on as counsel for Liljeberg in a multi-million dollar
lawsuit named Lifemark v. Liljeberg. Judge Porteous was
scheduled to try the case without a jury approximately six
weeks from Amato's entry into the case. Counsel for Lifemark
filed a motion to recuse Judge Porteous because of the close
relationship between Amato and Judge Porteous. While opposing
counsel did not know of the curatorship kickback scheme,
Judge Porteous did. Judge Porteous clearly should have
recused himself or disclosed the scheme. Instead, he chose to
misrepresent his relationship with Amato during the recusal
hearing. Second, after trial in the Lifemark case, Judge
Porteous took the case under advisement. During this period,
Judge Porteous solicited money from Amato and received $2,000
in cash, split equally by Amato and Creely from the firm's
account. There is no legitimate reason that a federal judge
would solicit and accept cash from a lawyer with a case in
front of him. We believe that soliciting and receiving a
$2,000 cash payment from a lawyer in a case currently before
him would alone have been enough to warrant Judge Porteous's
impeachment and removal. When viewed with the additional
factors, including the kickback scheme, the fact that the
lawyer stood to make hundreds of thousands of dollars through
a contingency fee if he won, that the judge misrepresented
his relationship during the recusal hearing, and that the
appeals court found that parts of the judge's decision in
favor of this lawyer's client were ``apparently constructed
out of whole cloth,'' Judge Porteous's conduct deserved the
unanimous rebuke of the United States Senate and removal from
the federal bench.
The allegations in Article II were very serious and no
doubt tainted Judge Porteous's ability to serve on the bench.
They involve Judge Porteous's relationship with a bail bonds
company and its owners, Louis and Lori Marcotte. This article
is, primarily though not exclusively, based upon Judge
Porteous's actions prior to his service on the federal bench.
The fact that this conduct is pre-federal is not alone a bar
to removal, though it is a significant factor to consider
when evaluating this and future articles.
We decided to vote against conviction on Article II not
only because most of the alleged conduct occurred before
Judge Porteous became a federal judge, but also because we
were not convinced that the conduct sufficiently proven by
the House rose to the level of a high crime or misdemeanor.
The Marcottes, who are felons convicted of manipulating the
Louisiana justice system for profit, are the only source of
evidence against Judge Porteous. Unlike the evidence
presented on Article I, there are limited receipts and
other documentary evidence supporting the claims made by
the Marcottes. We found that the timelines laid out by
Louis Marcotte, Lori Marcotte, Jeffrey Duhon, and Aubrey
Wallace to be inconsistent with one another and with the
documentary evidence that does exist regarding this
article.
The most prominent example of the inconsistent timelines
deals with the allegation that Judge Porteous improperly set
aside or expunged the convictions of Jeffrey Duhon and Aubrey
Wallace as a favor to Louis Marcotte. Louis Marcotte
testified that his corrupt relationship with Judge Porteous
did not really begin until after September 1993. The Duhon
conviction was expunged in 1992. In addition, Judge Porteous
only performed a ministerial step in expunging the
conviction. Another judge performed most of the
responsibilities in setting aside and
[[Page S10283]]
expunging both of Duhon's convictions. Louis Marcotte
testified that he hounded Judge Porteous for weeks about
setting aside the conviction of Aubrey Wallace. Marcotte
stated that Judge Porteous said he would set aside the
conviction but not until after he had secured his ``lifetime
appointment.'' As we discuss below in relation to Article IV,
this statement may reflect Judge Porteous's awareness that
certain decisions or actions might impede his confirmation to
the federal bench. The documentary evidence shows, however,
that Judge Porteous actually took some of the steps towards
removing the Wallace conviction, including a hearing on the
set aside motion, before his Senate Judiciary Committee
confirmation hearing In addition to the conflicting
timelines, the House failed sufficiently to establish that
Judge Porteous's actions with respect to the Duhon or Wallace
convictions were illegal or even improper under state law.
The House alleges that Judge Porteous was the Marcottes'
``go-to'' judge and would sign almost any bond that they
requested. However, the House conceded that they could not
point to any individual bond that was set either too high,
too low, or improperly in any other way for the benefit of
the Marcottes. Additionally, Judge Porteous's former criminal
minute clerk suggests the opposite. The clerk indicated that
Judge Porteous or a member of his staff was diligent about
calling the jail for information about a prisoner for whom
Marcotte requested a bond be set, instead of just taking
Marcotte's word for it.
The remaining conduct alleged in Article II, that Judge
Porteous used his prestige as a federal judge to recruit new
state judges for the Marcottes to corrupt, was also not
sufficiently proven. The House was able to document six
lunches over a ten year period where Judge Porteous is
alleged to have helped the Marcottes recruit and train
judges. The only evidence that the House presented that Judge
Porteous was present at some of these lunches was the fact
that there was a reference to Absolut Vodka on the receipt
and Judge Porteous was known to drink Absolut Vodka. One of
the judges who was allegedly recruited by Judge Porteous,
Ronald Bodenheimer, stated that Judge Porteous never told him
what to do in relation to the Marcottes, nor did Bodenheimer
feel that Judge Porteous ever used his position as a federal
judge to pressure Bodenheimer to work with the Marcottes or
to issue any bonds. Judge Porteous simply told Bodenheimer
that he could trust the Marcottes when it came to providing
information related to a particular offender.
While we do not take the position that any of these
witnesses was lying, we believe that the House must clear a
high bar in proving the guilt of a federal official in an
impeachment trial. The House did not meet its burden with
respect to the conduct alleged in Article II.
Three features of Article III distinguish it from the
others. Article III is the only one alleging conduct that
occurred entirely after Judge Porteous was appointed to the
federal bench, that conduct was unrelated to either his
office or his official conduct in that office, and Article
III raises significant factual disputes. Unofficial conduct
may constitute the ``high crimes and misdemeanors'' that
justify impeachment and removal, but that conclusion must be
clearly established after giving Judge Porteous the benefit
of the doubt regarding remaining factual disputes.
There is no dispute that Judge Porteous filed his initial
bankruptcy petition under a false name, signing the
declaration ``under penalty of perjury that the information
provided in this petition is true and correct.'' If there was
any evidence that he intended to defraud creditors, this
alone might be sufficient for impeachment and removal from
office. But the evidence is to the contrary. He used the
false name only to avoid the embarrassment of his real name
appearing in the newspaper's listing of bankruptcies.
The false name existed for only 12 days, and he filed an
amended petition with correct information the day after the
false name appeared in the newspaper. The amended petition,
with the correct identifying information, was then sent to
creditors. The fact that so few creditors who were contacted
with the correct information actually filed claims suggests
that no one was prevented from filing a claim because a false
name was on file for less than two weeks. Ironically, if the
petition had been filed precisely the same way and the false
name had been entered inadvertently rather than deliberately,
it likely would not have been discovered and rectified until
later in the process.
There is also no dispute that Judge Porteous's bankruptcy
petition and accompanying schedules omitted certain assets
and debts and inaccurately valued others. This fact might be
more serious if Chapter 13 bankruptcies typically are filed
without such omissions or inaccuracies. Judge Porteous
introduced evidence, however, that the opposite is true, that
nearly 100 percent of Chapter 13 bankruptcies contain
multiple inaccuracies. For these problems to constitute
``high crimes and misdemeanors,'' there must be clear and
convincing evidence that the inaccuracies and omissions were
intentional or fraudulent. The record does not contain such
evidence. The House forcefully presented a theory that Judge
Porteous hid assets so that he would have more money to
gamble away, but a theory unsupported by real evidence is not
enough to remove a federal judge from office.
Several allegations in Article III raised the question
whether ``markers'' used to obtain chips in casinos are
checks or credit. This distinction is significant because
Judge Porteous was prohibited from obtaining more credit
while his bankruptcy plan was in effect. But there was far
from clear and convincing evidence settling that question.
On the one hand, gamblers fill out a credit application
before they obtain markers. On the other hand, casinos redeem
markers by presenting them at the gambler's bank. On the one
hand, markers are checks under Louisiana commercial law. On
the other hand, Judge Porteous's bankruptcy attorney and the
bankruptcy trustee in his case considered them to be credit.
Experts testifying before the Committee at the evidentiary
hearing strongly and directly disagreed. This dispute, as
important as the issue may be, was simply not settled with
sufficient clarity to direct a conclusion either way. As
such, Judge Porteous deserves the benefit of the doubt.
Finally, Judge Porteous not only successfully completed
what is considered a large Chapter 13 bankruptcy, even after
the bankruptcy judge nearly doubled his monthly payment, but
he actually paid more than the plan called for. That is not
the conduct of someone bent on bankruptcy fraud. The
question, then, is whether the allegations in Article III
that the evidence clearly showed to be intentional acts were
sufficient to remove Judge Porteous from the bench. We do not
believe so and, therefore, voted to acquit on that article.
We looked at Article IV with particular interest because
the conduct by Judge Porteous that it alleged directly
implicated the Senate and the judicial confirmation process.
One of us not only serves on the Judiciary Committee, but was
its Ranking Member when Judge Porteous was confirmed in 1994.
In FBI interviews, as well as in questionnaires before and
after his nomination, Judge Porteous was asked whether
anything in his personal life could be used by someone else
to intimidate or influence him, could be publicly
embarrassing to him or the President, or could affect his
nomination. He signed both questionnaires, which included the
statement that the information provided was ``true and
accurate.'' Those questions are still asked and still appear
in those questionnaires as part of the confirmation process
today. Judge Porteous argues that his negative answers to
these questions were true because he did not believe that
anything he had done, including in the relationships
described in Article I and II, to be improper or
embarrassing. But Judge Porteous was never asked whether he
personally thought anything in his personal life was improper
or embarrassing. There would be little value in asking such a
question. Judge Porteous was asked whether anything in his
personal life could be viewed by others, or by the public, as
embarrassing or, more importantly, affect his nomination. Not
only is that important information for the confirmation
process, but it is information that in most cases can come
only from the candidate or nominee.
What Judge Porteous may have lacked in personal scruples,
he possessed in political instincts about matters that could
be confirmation obstacles. Louis Marcotte testified, for
example, that when he urged Judge Porteous to clear the
criminal record of a Marcotte employee, Judge Porteous said
he would do so only after the Senate confirmed his
nomination. He did not want it coming out in the newspaper
and said that he would not let anything stand in the way of
his lifetime appointment. Judge Porteous waited until after
his confirmation, but before he took the oath of office, to
set aside one of those criminal convictions.
The propriety of setting aside that conviction is not the
issue. This example simply shows Judge Porteous' awareness
that perceptions of his actions might affect his appointment
to the federal bench. His instinct, it turns out, was
accurate because the New Orleans newspaper reported that
Judge Porteous had unlawfully set aside the conviction and
the Justice Department would later conclude that his decision
was contrary to law. Or consider another example. Judge
Porteous' financially interactive relationship with his
friends Jacob Amato and Bob Creely may not have bothered him,
but it certainly bothered them. While on the state court
bench, Judge Porteous began assigning unsolicited curatorship
cases to Creely after Creely refused to give him money.
Having provided a new source of revenue, Judge Porteous began
requesting, and Creely and Amato began providing, a portion
of the fees generated by those cases. Amato believed that
this arrangement was unethical, a kind of kickback, and
warned Creely that it was going to turn out badly. Amato did
not disclose it at the recusal hearing in the Lifemark case
because he believed he might be disbarred and that Judge
Porteous might be removed from the bench. At our evidentiary
hearing, the House's judicial ethics expert opined that this
conduct violated the ABA model code of judicial conduct, and
even Judge Porteous' own expert suggested that it was
ethically troubling.
If his own best friend thought disclosing this financial
relationship might get Judge Porteous removed from the bench,
it is simply not credible that Judge Porteous believed
disclosure of that relationship could not affect his
appointment to the bench. Instead, he apparently answered
those questions in the negative for the same reason that he
put off setting aside that criminal
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conviction, to avoid any obstacles to a lifetime appointment.
This dishonest participation in the confirmation process
undermined the integrity of that process and possibly
deprived the Senate of information that would have mattered
in considering his nomination. His negative answers to
questions he was actually asked were material and
demonstrably false. For that reason, we voted to convict on
Article IV.
The Senate was correct in removing Judge Porteous from the
bench. He argued that it was unclear that his actions
violated the public trust and warranted removal. The message
from the Senate is clear that the privilege of serving the
American people comes with a responsibility to be fair,
honest, and to behave in a manner that inspires confidence in
the courts and our system of justice.
Mr. LEAHY. Mr. President, for just the eighth time in this country's
history, the Senate has voted to impeach and remove a Federal judge
from the bench. Impeachment is a serious, constitutional act intended
not as a form of punishment, but rather as means of protecting the
integrity of our system of government. This is particularly true when
we consider the impeachment of members of the judiciary. Public
confidence in our courts is fundamental to the functioning of our
democracy. When a judge engages in conduct that grossly violates the
public trust, he or she not only becomes incapable of fulfilling the
responsibilities of the office, but also brings disrepute to the entire
judicial system.
Prior to the Senate's vote on December 8, I voted three times to
convict a Federal judge. In each instance, I carefully considered the
facts in the case, as well as my constitutional obligations and the
precedent being set for future generations. I have no doubt that just
as we looked back to past impeachments to guide our actions in this
proceeding, we now leave new precedent that others will look to for
guidance and wisdom. For this reason, I wanted to elaborate on the
constitutional issues presented during this impeachment trial and
explain my decision to vote to convict Judge Porteous on all four
Articles of Impeachment.
First, I should note that the impeachment trial against Mr. Porteous
was bipartisan, and, I believe, unquestionably fair. The Senate
Impeachment Trial Committee held 5 days of evidentiary hearings, with
testimony received from 26 fact and expert witnesses. The record before
the Senate is well developed, and most of the facts underlying the
allegations against Mr. Porteous are uncontested. These facts
demonstrate that Mr. Porteous engaged in conduct that compromised the
administration of justice, brought disrepute to his office, and
required his removal from the bench.
The first article of impeachment alleges that as a Federal judge, Mr.
Porteous failed to recuse himself in the bench trial of Lifemark
Hospitals of Louisiana, Inc. v. Liljeberg Enterprises, despite having
previously engaged in a corrupt scheme with one of the attorneys before
the court. The House managers established that as a State judge, Mr.
Porteous assigned curatorship cases to two attorneys, one of whom was
before him in the Liljeberg case, and had a portion of the fees,
totaling approximately $20,000, funneled back to him. Not only did Mr.
Porteous fail to disclose these facts or recuse himself from the case,
he proceeded to solicit and accept $2,000 cash from those attorneys
while the Liljeberg case was still under his advisement.
Out of concern for the public's confidence in our court system, I
have frequently expressed disappointment about the lack of recusals by
judges with conflicts of interest. There should be no doubt that
recusals go to the heart of a judge's impartiality. In gross violation
of his judicial ethics, Mr. Porteous engaged in a corrupt scheme with
attorneys, solicited and accepted money from attorneys with pending
matters before his court, and deprived the public and litigants of his
honest services by failing to recuse himself.
The defense argued that article I should be dismissed because of the
Supreme Court's recent ruling in Skilling. I am familiar with the
Court's ruling, and have authored legislation in response to it. The
Supreme Court's holding was about a specific criminal statute, not
judicial conduct or impeachment standards. No reasonable judge would
believe that soliciting and accepting cash payments from an attorney
with a pending case would be allowable or would not be an obvious
ground for recusal.
The notion that was raised by the defense that corrupt judges could
not be impeached ignores the purpose of impeachment as it relates to
public confidence in our justice system. The Constitution did not list
a specific set of conduct that would result in impeachment. Instead,
Senators should determine for themselves what conduct renders one unfit
to hold public office. We must consider the type of duties that the
impeached official is called upon to perform and whether the conduct
engaged in impairs the official's ability to perform those duties. This
analysis differs depending on the office and responsibilities of the
official before us.
Article II alleges that as a State court judge, Mr. Porteous took
numerous things of value and accepted personal services from a bail
bondsman, while setting favorable bonds for his company. As a Federal
judge, Mr. Porteous continued to receive things of value in exchange
for using ``the power and prestige of his office'' to help these
bondsmen form corrupt relationships with State court judges. The
evidence showed a pattern before and after his Federal confirmation of
capitalizing on his position of power to receive improper gifts.
Moreover, as Professor Michael Gerhardt, who served as Special Counsel
to the Senate Judiciary Committee during the last two Supreme Court
confirmations, testified before the House Task Force on Judicial
Impeachment, the Constitution does not state that improper conduct must
be committed during the tenure of the Federal office; rather, ``[t]he
critical questions are whether Judge Porteous committed such misconduct
and whether such misconduct demonstrates the lack of integrity and
judgment that are required in order for him to continue to function [as
a Federal judge].'' I agree with Professor Gerhardt on this fundamental
question.
Certainly if the Senate learned after confirmation that a judge
killed someone before he or she was confirmed, the Senate should not be
prevented from later removing that judge. Similarly, the Senate should
not be foreclosed from removing a judge for serious misconduct not
revealed during the confirmation process that goes to the role of the
judge. A lifetime appointment to the Federal judiciary does not entitle
those unfit to serve to a lifetime of Federal salary and benefits. As
chairman of the Judiciary Committee, I reject any notion of impeachment
immunity if misconduct was hidden, or otherwise went undiscovered
during the confirmation process, and it is relevant to a judge's
ability to serve as an impartial arbiter.
With regard to the third article of impeachment, it is clear that Mr.
Porteous knowingly and intentionally made material false statements and
representations--including signing and filing under the name ``G.T.
Orteous''--under penalty of perjury on his personal bankruptcy court
filing. It is hard to imagine stronger evidence that this judge
believed the law did not apply to him. A judge who lies under oath in
court filings is unable to continue in an office that requires him to
administer oaths and sit in judgment. Mr. Porteous's actions in his
bankruptcy proceedings demonstrate a flagrant disregard for the courts
as an institution, making him unfit to serve as a respected member of
the judiciary.
The last article of impeachment against Mr. Porteous relates to his
actions before the Senate Judiciary Committee. As chairman of the
Senate Judiciary Committee, I take the word of judicial nominees that
come before our committee very seriously. The process for aiding the
Senate in considering these lifetime appointments relies on being able
to trust and evaluate the information provided to us by nominees, so it
requires their utmost candor.
Mr. Porteous knowingly made material false statements about his past
to the Senate by responding ``no'' to questions on his Senate Judiciary
Committee questionnaire, and to the FBI in connection with his
background review, in order to obtain office. His defense to article IV
is that his conduct was ``business as usual'' in New Orleans and,
therefore, he believed his responses to be true. Whether he made false
statements is not purely a subjective inquiry; and most certainly not
where his ``belief'' in the truth of his
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statements is in direct conflict with the factual knowledge on which it
is based. I am convinced that Mr. Porteous's responses on the Senate
questionnaire were material because had his solicitation and acceptance
of cash and gifts from parties with matters before him been known to
the Senate, he would not have been confirmed.
During the impeachment trial proceedings, I asked both the House
managers and Mr. Porteous's defense attorneys the following question:
``The Senate Judiciary Committee requires a sworn statement as part of
a detailed questionnaire by a nominee. Until this questionnaire is
filed, neither the Judiciary Committee nor the Senate votes to advise
and consent to the nomination. Would not perjury on that questionnaire
during the confirmation process be an impeachable offense?'' Both sides
unequivocally answered that perjury on the Senate questionnaire and
during the confirmation process would be an impeachable offense.
As chairman of the Senate Judiciary Committee, I am particularly
offended by Mr. Porteous's intentional dishonesty and disrespect for
the office to which he was confirmed, and for the entire confirmation
process. When a judicial nominee testifies before the Senate Judiciary
Committee, they must be completely forthright and honor the promises or
statements they make to us. Once confirmed, Federal judges have
lifetime appointments. Impeachment is a drastic measure, but one we
must take when a nominee conceals serious wrongdoing.
The House managers presented uncontested facts that Mr. Porteous
engaged in conduct that violated the public trust and is now unfit to
be a district court judge, or hold any other public office. Both sides
were well represented in this proceeding, and I thank them for their
advocacy and professionalism.
Mr. UDALL of New Mexico. Mr. President, as a member of the
Impeachment Trial Committee, I had the privilege of carrying out a
constitutional duty that fortunately is a rare occurrence. I commend
the work of Chair McCaskill and Vice-Chair Hatch, as well as the staff
of the committee, Senate legal counsel, and CRS. They have done an
excellent job of making a complex and time-consuming process as clear
and straightforward as possible.
I began the impeachment process with the belief that my legal
background would help guide my judgment as to whether or not Judge
Porteous is guilty. As the attorney general of New Mexico for 8 years
and a former assistant U.S. attorney, I saw the impeachment process as
closely analogous to a criminal trial. It turns out, however, that the
two are very different in many key aspects.
Unlike a criminal trial, our role is not to punish the guilty, but is
instead to protect the integrity of the judiciary. The U.S. Judicial
system is the greatest in the world, but it can only remain so as long
as the integrity and impartiality of our judges is never in doubt.
Judge Porteous's actions were so contrary to everything we demand of
our judges that I have no hesitation in voting to convict him on each
article.
One of the primary aspects that make an impeachment trial unique from
a criminal trial is the standard of proof. I began the impeachment
process believing that the House must prove its case beyond a
reasonable doubt in order for a conviction. This is not the case.
Obviously Judge Porteous would like all of us to use the standard of
``beyond a reasonable doubt,'' while the House managers would prefer a
``preponderance of the evidence standard.'' Some scholars have urged a
middle ground, suggesting that the appropriate standard of proof should
be ``clear and convincing evidence.'' But the fact is that we each have
to make our own decision.
I believe that the ``beyond a reasonable doubt'' standard is too
high. The Senate does not have the authority to take away Judge
Porteous's liberty but only the authority to remove him from a position
of public trust. I also believe that whether you use a clear and
convincing evidence standard or a preponderance of the evidence
standard, the House managers have met their burden.
Another important question each of us must decide is what constitutes
an impeachable offense. Judge Porteous's attorneys argue that much of
his conduct is not impeachable because it does not meet the
constitutional standard of ``high crimes and misdemeanors.'' They also
argue that most of his conduct occurred prior to his confirmation to
the Federal bench or was not related to his duties as a Federal judge,
and therefore not grounds for impeachment. I do not believe any of
these arguments are persuasive.
I initially thought of ``high crimes and misdemeanors'' in the
context of a criminal trial. My prosecutor experience made me ask what
elements had to be proven in order to convict on each article. But now
I understand that an impeachment is so fundamentally different than a
criminal trial that such comparisons do not work.
Alexander Hamilton wrote that impeachable offenses ``proceed from . .
. the abuse or violation of some public trust'' and ``relate chiefly to
injuries done immediately to the society itself.'' The Framers also did
not use the term ``misdemeanor'' to mean a minor crime, as it is used
today. At the time of the Constitution's drafting, a misdemeanor
referred to the demeanor or behavior of a public official.
Judge Porteous's counsel made several references to the fact that the
judge was not criminally charged for his actions. But this is not a
relevant consideration. The 1989 report on the impeachment of U.S.
District Judge Walter Nixon provides us with guidance as to what
constitutes an impeachable offense. It states:
The House and Senate have both interpreted the phrase other
high Crimes and Misdemeanors' broadly, finding that
impeachable offenses need not be limited to criminal conduct.
Congress has repeatedly defined [the phrase] to be serious
violations of the public trust, not necessarily indictable
offenses under the criminal law.
Thus, the question of what conduct by a Federal judge
constitutes an impeachable offense has evolved to the
position where the focus is now on public confidence in the
integrity and impartiality of the judiciary. When a judge's
conduct calls into question his or her integrity or
impartiality, Congress must consider whether impeachment and
removal of the judge from office is necessary to protect the
integrity of the judicial branch and uphold the public trust.
We are also faced with deciding whether impeachable offenses are
limited to acts occurring after an individual became a Federal
official. According to the Congressional Research Service, ``it does
not appear that any President, Vice President, or other civil officer
of the United States has been impeached by the House solely on the
basis of conduct occurring before he began his tenure in the office
held at the time of the impeachment investigation, although the House
has, on occasion, investigated such allegations.''
I do not see how we can restrict our authority to impeach and convict
a Federal official to conduct that only occurred after he or she took
office. To do so would lead to a perverse result, one in which, as the
House managers argue, ``makes the position of federal judge a lifetime
safe harbor for someone who is able to hide his misdeeds and defraud
the Senate into confirming him.''
In considering whether pre-Federal conduct should be considered as a
basis for impeachment, Professor Michael Gerhardt testified before the
House that, ``[t]he critical questions are whether Judge Porteous
committed such misconduct and whether such misconduct demonstrates the
lack of integrity and judgment that are required in order for him to
continue to function'' as a Federal judge.
I believe this is an appropriate standard, and I believe Judge
Porteous's conduct as a State court judge was incompatible with the
trust we place in our Federal judges. Had his pre-Federal conduct been
serious, but outside of the scope of his role as a State judge, I might
have been more hesitant to consider it as a basis for impeachment. In
this case, however, his corrupt conduct was directly connected to his
duties as a judge. In arguing against considering pre-Federal conduct,
Judge Porteous is essentially telling the Senate that although he was a
corrupt State court judge, that conduct should not be considered in
determining his fitness to continue as a Federal judge. I do not find
this argument the least bit persuasive.
[[Page S10286]]
A final question is whether impeachable offenses should be limited to
official acts that are directly related to his duties as a judge. Just
as I don't believe pre-Federal conduct must be excluded as a basis for
impeachment, I do not feel that nonofficial conduct must be excluded.
In fact, Judge Porteous's own attorney, Jonathan Turley, wrote in a
law review article that ``Congress repeatedly rejected the view that
impeachable conduct was limited to official acts or abuses of
authority. Impeachable conduct often included acts that were
incompatible with continuing to hold an office of authority, including
crimes or misconduct outside the official realm.''
I believe the question to ask when considering nonofficial acts is
the same as that for pre-Federal acts does the misconduct demonstrate a
lack of integrity and judgment that are required in order for him to
continue to function as a Federal judge? Once again, I found Judge
Porteous's nonofficial conduct to reach the level of an impeachable
offense. We expect a Federal judge to have the utmost respect for the
rule of law, but Judge Porteous knowingly filed for bankruptcy under a
false name, an act that he knew was illegal. His attorneys argue that
this act was insignificant he filed amended forms a few weeks later and
none of his creditors were harmed. But this argument misses the point
that a Federal judge had so little respect for the legal process that
he would commit perjury in order to avoid embarrassment. Such actions
make him unfit for a lifetime appointment to the Federal bench.
For the reasons discussed above, I voted guilty on each of the four
Articles of Impeachment.
Mrs. SHAHEEN. Mr. President, it has been a privilege to serve as a
member of the Senate Impeachment Trial Committee over the past year. We
have been part of a rare event in the history of this Congress and our
country and it has been fascinating to watch this process unfold. I
want to join my fellow committee members in thanking Chairman McCaskill
and Vice-Chairman Hatch for leading a fair, effective, and efficient
operation. They provided remarkably decisive leadership on complex
legal issues while also respecting the rights and the interests of both
parties to this matter.
I am proud of the report our bipartisan committee produced, and I
would like to once again thank and recognize the trial committee's
staff for their hard work. Their efforts were an indispensable part of
this unique and historic undertaking.
Judging Articles of Impeachment drawn up by the House of
Representatives is one of the more solemn duties given to Senators by
our Constitution. After spending more than a week with my fellow
committee members hearing the evidence against Judge Thomas Porteous,
and after reviewing the parties' final submissions, I concluded that he
should be convicted on all four articles and removed from office. I
would like to explain the principles I used to reach this conclusion
and touch on some of the evidence that supported conviction.
There has been much discussion by the parties about the standard of
proof to be employed in an impeachment proceeding, and what constitutes
an impeachable offense. The Constitution provides us with limited
guidance on these issues. Ultimately, in keeping with precedent
established by this body in the past, each Senator must individually
decide what conduct is impeachment-worthy and how much proof is
necessary to reach that conclusion.
In my opinion, the question before us is whether Judge Porteous's
conduct calls his integrity and impartiality into question and whether
we must remove him from office to protect the reputation of the
judiciary and preserve the public's trust in it. Our courts are the
places where citizens expect to receive a fair and legitimate
resolution of their disputes. This is a cornerstone of civil society.
Any conduct by a judge--whether on the job or off that causes people to
seriously question his honesty and basic willingness to dispense
justice fairly is a violation of the public trust.
Unfortunately, I think any reasonable citizen walking into Judge
Porteous's courtroom would have ample reason to question his commitment
to doing justice. This is a judge who used his judicial offices at both
the State and Federal levels to routinely obtain personal perks,
including meals, alcohol, a bachelor party for his son, trips, and
eventually cash kickbacks totaling some $20,000.
Any reasonable citizen would also doubt this judge's ability to be
impartial. The House presented substantial evidence related to a
multimillion dollar piece of litigation in which Judge Porteous had an
obvious conflict of interest but failed to recuse himself. He took
thousands of dollars in cash gifts from a lawyer friend representing a
party to the case during the course of his deliberations. He then
turned around and issued a decision favoring his friend's client. Judge
Porteous's ruling was overturned in an absolutely scathing opinion by
the Fifth Circuit Court of Appeals, which called his decision
``inexplicable'' and ``close to being nonsensical,'' among other
rebukes.
While on the State bench, the Judge maintained close relationships
with bail bondsmen working for defendants in his courtroom. The
evidence showed that he continuously set favorable bail levels that
while perhaps within the bounds of his legal discretion had been
suggested by the bondsmen to maximize their profits. For this, the
judge enjoyed complimentary steak lunches, midday martinis, at least
one trip to Las Vegas, as well as home and car repairs.
I was totally unpersuaded by the defense team's argument that Judge
Porteous's ``pre-Federal'' conduct should be outside the scope of our
deliberation. I do not believe the act of being confirmed to a Federal
judgeship by the Senate erases or excuses an individual's conduct up to
the point of confirmation.
Had the Senate known in 1994 what we know now about Porteous's
conduct as a State judge, it would have undoubtedly disqualified him
from becoming a Federal judge. No judge at any level should accept
gifts that would even appear to be designed to affect his judgment or
influence his decisions. Yet there is no doubt Judge Porteous did just
that.
It is unfortunate that those charged with investigating Judge
Porteous's fitness for office in 1994 did not raise more flags about
his history. This does not eliminate our duty to act. I see no reason
not to remove him from office today when these events still bear on his
integrity and impartiality. Plain and simple, the judge perjured
himself before this body during his confirmation by representing that
nothing in his history would cast doubt on his fitness to hold office.
Finally, Judge Porteous also perjured himself during his own personal
bankruptcy proceedings. The House presented evidence that he failed to
disclose gambling debts during his bankruptcy, failed to disclose a
number of assets, and made other willful misrepresentations in his
filings like using a false name in his initial petition. I understand
that this conduct may not have been a direct abuse of the judge's
office, but his deception during this period reflected a lack of
respect for the law and an unwillingness to follow it. A sitting
Federal judge should have erred on the side of overdisclosure. Instead,
I believe the House has shown that Judge Porteous repeatedly committed
perjury.
Serving as a judge is a privilege, and it demands strict adherence to
the highest ethical standards. The evidence in this case, taken as a
whole, showed that Judge Porteous failed this test routinely over the
course of some 15 years. The House presented ample credible evidence to
support the charges in each of the articles, and I felt compelled to
vote to convict on all four to protect the integrity of the judiciary
and its credibility in the eyes of the public.
Mr. KOHL. Mr. President, I want to first commend my colleagues on the
Senate Impeachment Trial Committee for the outstanding work they have
done to receive and report the evidence in this case to the full
Senate. Led by Senators McCaskill and Hatch, the committee's dedication
to impartiality and integrity is something of which we can all be
proud.
The Constitution gives the Senate ``the sole power to try all
impeachments.'' The Senate acts as the factfinder in impeachment
proceedings and determines, as individuals and as a body, whether the
respondent is guilty
[[Page S10287]]
of ``high crimes and misdemeanors'' so as to require removal from
office.
After carefully reviewing the evidence, I voted to convict Judge
Porteous on each Article of Impeachment. On articles I and II, the
evidence showed that Judge Porteous used his judicial office for
financial gain by failing to recuse himself in a nonjury civil case and
engaging in corrupt relationships with Jacob Amato, Robert Creely, and
Louis Marcotte. The House managers proved by clear and convincing
evidence that Judge Porteous deprived litigants of a fair trial and
undermined his sworn judicial duties.
On articles III and IV, I found Judge Porteous guilty because of his
dishonesty and gross misconduct. The facts were clear. He filed his
bankruptcy petition under a false name, concealed assets and debt to
finance his gambling habit and lied to the FBI to obtain Senate
confirmation of his judicial appointment.
Finally, I voted against Judge Porteous's motion to disaggregate the
articles. I did so because each article contained a series of events
that sufficiently related to the charged allegation. The case against
Judge Porteous can be distinguished from those of Judge Nixon and
President Clinton. Here, the House presented specific, indivisible
articles of misconduct which provided a clear record for us to
evaluate.
As with each judicial impeachment, the Senate is faced with difficult
and novel issues. However, the Constitution makes clear that
impeachment is a remedial provision that cures our institutions when
officials violate the public's trust and confidence. I do not come to
my decision lightly, but removal and disqualification of Judge Porteous
is necessary. As required by the Constitution, Judge Porteous no longer
enjoys the privilege of sitting on the Federal bench or holding any
Federal position ``of honor, trust or profit.'' I thank and appreciate
my colleagues for their commitment and collegiality during this
process.
Mr. NELSON of Florida. Mr. President, I rise today to discuss the
impeachment of Judge Thomas Porteous and specifically to offer my
thoughts on the Articles of Impeachment.
First, let me say as a general matter that when we as a body consider
the nomination of a Federal judge, we do so with the hope and
expectation that the individual being considered will uphold the law
and treat people appearing in his or her courtrooms with fairness and
impartiality. The lengthy record presented by the House managers
demonstrated that Judge Porteous has had an ongoing pattern of conduct
that does not comport with the trust that the Senate placed in him when
it confirmed Judge Porteous as a U.S. district court judge in 1999.
The managers also presented sufficient evidence for me to vote in
favor of each of the Articles of Impeachment. Because of the lengthy,
ongoing, and egregious nature of the judge's conduct, I also voted to
disqualify Judge Porteous from any future Federal office.
The most compelling evidence presented for each article was as
follows:
Article I--The record demonstrated that Judge Porteous, while
presiding as a U.S. District Judge, denied a motion to recuse himself
in the case of Lifemark Hospitals of Louisiana, Inc. v. Liljeberg
Enterprises, despite the fact that he had a corrupt financial
relationship with the law firm representing Liljeberg Enterprises. The
record also demonstrated that Judge Porteous engaged in corrupt conduct
after the Lifemark v. Liljeberg bench trial, and while he had the case
under advisement. Judge Porteous solicited and accepted things of value
from both Mr. Amato and his law partner, Mr. Creely, including a
payment of thousands of dollars in cash, then ruled in favor of the law
firm's client, Liljeberg Enterprises.
Article II--The record demonstrated that while Judge Porteous was a
U.S. district judge for the Eastern District of Louisiana, he engaged
in a corrupt relationship with bail bondsman Louis M. Marcotte, II and
his sister, Lori Marcotte. The record also demonstrated that, as part
of this corrupt relationship, Judge Porteous solicited and accepted
numerous things of value for his personal use and benefit, including
meals, trips, home repairs, and car repairs, while at the same time
taking official actions that benefitted the Marcottes.
Article III--The record demonstrated that Judge Porteous knowingly
and intentionally made material false statements and representations
under penalty of perjury related to his personal bankruptcy filing, and
that he repeatedly violated a court order in his bankruptcy case.
Article IV--The record demonstrated that Judge Porteous knowingly
made numerous material false statements about his past to both the U.S.
Senate and the Federal Bureau of Investigation in order to obtain the
office of U.S. district court judge. The record demonstrated that these
statements included the following:
1. On his Supplemental SF-86, Judge Porteous was asked if there was
anything in his personal life that could be used by someone to coerce
or blackmail him, or if there was anything in his life that could cause
an embarrassment to Judge Porteous or the President if publicly known.
Judge Porteous answered no to this question and signed the form under a
warning that a false statement was punishable by law.
2. During his background check, Judge Porteous falsely told the
Federal Bureau of Investigation on two separate occasions that he was
not concealing any activity or conduct that could be used to influence,
pressure, coerce, or compromise him in any way that would impact
negatively on his character, reputation, judgment or discretion.
3. On the Senate Judiciary Committee's Questionnaire for Judicial
Nominees, Judge Porteous was asked whether any unfavorable information
existed that could affect his nomination. Judge Porteous answered that
to the best of his knowledge, he did ``not know of any unfavorable
information that may affect [his] nomination.'' Judge Porteous signed
that questionnaire by swearing that the information provided in the
statement is, to the best of my knowledge, true and accurate.''
Mr. UDALL of Colorado. Mr. President, I rise to explain my votes in
relation to the impeachment of Judge G. Thomas Porteous, Jr. I take my
role in the rare process of impeachment seriously, and welcome the
opportunity to explain my reasoning for voting guilty on all four
Articles of Impeachment and to clarify for the record the limited
precedential value that I believe the conviction on Article IV should
provide.
When considering the evidence presented by the House and Judge
Porteous, I first had to establish what standard of proof I would use
to determine his guilt or innocence on each Article of Impeachment
passed by the House of Representatives. The Senate has never adopted a
standard of proof like `beyond a reasonable doubt' from the criminal
context or `a preponderance of the evidence' from a civil dispute
context; rather, the Senate has allowed individual Senators to decide
for themselves what standard is most appropriate. I ultimately settled
on the standard suggested by the House Manager, that I be convinced of
the truthfulness of the allegations and that they rise to a level of
high crimes and misdemeanors.
Mr. President, our founders granted Congress the power of impeachment
to protect the institutions of government from those judged to be unfit
to hold positions of trust. In Federalist 65, Alexander Hamilton wrote
of the jurisdiction to impeach an official: ``There are those offenses
which proceed from the misconduct of public men or, in other words,
from the abuse or violation of some public trust.'' This captures the
standard I applied to reach a determination of guilt on each Article of
Impeachment. I was convinced that Judge Porteous, through each action
and through his pattern of behavior, undermined the public's faith in
him as a government official and in the institution that he
represented--the United States Federal Court.
With respect to Articles I, II and III, I am confident that the
evidence of specific acts and the pattern of behavior displayed by
Judge Porteous justifies my determination that he was guilty of high
crimes and misdemeanors. Article IV, however, gives me pause. While I
believe that the guilty vote on Article IV was correct, I have
reservations about the precedent that scholars and future Senators
might find in this impeachment. The questionnaire the judicial nominees
fill out for the Senate
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Judiciary Committee provides an opportunity for those nominated to
answer questions about their past activities and involvement in and
with the law. From these questionnaires, we are able to learn of a
nominee's legal experience, find information about past statements and
generally assess the fitness of the nominee for the federal bench.
On his questionnaire, Judge Porteous was asked whether any
unfavorable information existed that could affect his nomination, and
he answered that he did not know of any. I believe that Judge Porteous
engaged in a pattern of behavior prior to, during and after his
nomination to the federal district court that undermined the public's
faith in him as a government official, and that this pattern of
behavior rose to the level of an impeachable offense that met the
standard of high crimes and misdemeanors. Having said that, I do not
believe that future nominees should be subject to impeachment simply
for a failure to answer a subjective, open-ended question on the Senate
Judiciary Committee's questionnaire.
Judge Porteous abused the questionnaire process, misrepresented his
background and misled the Senate in an egregious manner that was unique
to this specific situation. However, I can imagine a scenario whereby a
nominee could falsely affirm that no negative information affecting his
nomination existed, yet I might not find that false answer to be an
impeachable offense. I do not wish to see the nomination process become
even more difficult for qualified men and women of good character,
solely because of an onerous application process. Many of us have
things in our backgrounds that we might miss when asked open ended
questions, and the Senate should not hang the cloud of impeachment over
every nominee's head because of such oversights alone--otherwise, we
will find ourselves without any nominees.
As a Senator who is not a lawyer, I would like to thank my colleagues
who took on the historic task of preparing and presenting this
impeachment trial. Specifically, Senator Claire McCaskill and Senator
Orrin Hatch who shared the role of chair of the Special Impeachment
Trial Committee. I came away from this experience with a renewed
respect for the Senate as an institution. When given the opportunity,
Senators can work in a productive and civil manner, and I am sure that
if he were able to see the dignity and respect with which the Senate
treated this impeachment, Alexander Hamilton would be very proud.
Mr. COONS. Mr. President, as a result of today's vote on the four
Articles of Impeachment against Judge G. Thomas Porteous, the Senate
has fulfilled its constitutional duty to remove a threat to the
public's trust and confidence in the Federal judiciary.
The conduct set forth in the first Article of Impeachment alone
justifies the Senate's conviction of Judge Porteous. By coercing his
former law partners to participate in a kickback scheme while a state
judge, by failing to properly disclose this corrupt relationship when
warranted as a federal judge in a recusal hearing and by obtaining
further improper cash payments from them while taking their case under
advisement, Judge Porteous misdemeaned himself in a manner that is
directly contrary to the essential public trust of his office. Federal
judges cannot solicit improper gifts, and they certainly cannot lie to
litigants who appear before them.
The conduct described in the remaining three Articles of Impeachment
is, likewise, wholly repugnant to the office of a U.S. judge. Counsel
for Judge Porteous argued that the Senate's unprecedented conviction on
these counts would weaken the judiciary to political attacks. I do not
dismiss these arguments lightly. With only 12 impeachment trials having
been completed in our Nation's history, however, novelty of the
particular offenses charged is no absolute defense. My votes to
convict--whether for conduct on the State bench, as a private citizen,
or before the Judiciary Committee--were compelled because they revealed
corruption and duplicity that, if countenanced, would destroy the
integrity of the federal judiciary. While counsel argued that the
behavior charged in the final three articles did not concern Judge
Porteous' conduct as a Federal judge, each article charged conduct that
bore an essential nexus to his Federal service.
Judge Porteous set bail bonds for the purpose of maximizing the
profits of the bail bonds company, rather than protecting the public
safety and guaranteeing the defendant's presence at trial. He carried
out this scheme to cultivate improper benefits from the bail bonds
company, trading official judicial action for personal gain. This
behavior was not an isolated lapse in judgment. It lasted for more than
a year, stopping only when Judge Porteous was confirmed to be a Federal
judge.
Judge Porteous also lied during his bankruptcy while serving as a
Federal judge. His only defense was that such conduct was not related
to his service as a judge and included only acts taken as a private
citizen. A judge cannot repeatedly demean a Federal court by lying to
it, as here, in an attempt to avoid embarrassment and to continue to
amass more gambling debts.
Likewise, Judge Porteous' lies and deceptions during his confirmation
process reflect a willingness to subvert the truth, under penalty of
perjury, for personal gain. His claim that any mistakes were
inadvertent is simply not credible. The evidence demonstrates that
Judge Porteous actively concealed the corrupt bail bonds scheme from
FBI investigators, and failed to disclose much more corrupt behavior.
Our Federal courts are an enduring symbol of our national commitment
to equal justice under the law. Judge Porteous' long history of
corruption, deceit, and abuse of power renders him incompatible with
that commitment. His removal strengthens our judiciary and confirms the
integrity of those who remain a part of it.
____________________