[Congressional Record (Bound Edition), Volume 156 (2010), Part 13]
[Senate]
[Pages 19028-19048]
[From the U.S. Government Publishing Office, www.gpo.gov]




        IMPEACHMENT OF JUDGE G. THOMAS PORTEOUS, JR.--Continued

  Mr. DURBIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll and the 
following Senators entered the Chamber and answered to their names:

                             [Quorum No. 7]

     Akaka
     Alexander
     Barrasso
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Brown (OH)
     Burr
     Cantwell
     Cardin
     Coburn
     Cochran
     Collins
     Crapo
     Dorgan
     Durbin
     Enzi
     Feingold
     Franken
     Grassley
     Gregg
     Hagan
     Hatch
     Inouye
     Isakson
     Johanns
     Klobuchar
     Kyl
     Leahy
     Levin
     Lugar
     McCain
     McCaskill
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden
  Mr. REID addressed the Chair.
  The PRESIDENT pro tempore. The majority leader is recognized.
  Mr. REID. Mr. President, is a quorum present?
  The PRESIDENT pro tempore. A quorum is present.
  The Senate will resume consideration of the Articles of Impeachment 
against Judge G. Thomas Porteous, Jr.
  The Chair understands that final arguments for the House on the 
Articles of Impeachment will be presented by Representative Schiff and 
Representative Goodlatte. Mr. Schiff has asked to speak first. Mr. 
Schiff, do you wish to reserve time for closing, and, if so, how much 
time?
  Mr. Manager SCHIFF. Mr. President, if it is permitted, after I make 
some brief introductory remarks, I will turn it over to my colleague, 
Mr. Goodlatte, to speak. When he is finished speaking, we would like to 
reserve the balance of our time unless we are required to set that up 
in advance.
  The PRESIDENT pro tempore. You may proceed.
  Mr. Manager SCHIFF. Mr. President and Members of the Senate, this is 
a case about a State court judge from Gretna, LA, who had a gambling 
problem and a drinking problem, and as a result of both of those 
problems also had serious financial problems. He was constantly short 
of money.
  This judge entered into a corrupt scheme with lawyers and bail 
bondsmen who could help him lead a lifestyle he could not otherwise 
afford. He sent the lawyers cases. They kicked back money from those 
cases to the judge, and they paid for many of his meals, his liquor, 
his parties, even some of his son's expenses.
  He set bonds for the bail bondsmen at the amounts that would maximize 
their profits. He expunged the convictions of their employees, and they 
also paid for many of his meals, his trips, his home repairs, his car 
repairs, and lavish gifts.
  The White House was not aware of this corrupt activity and nominated 
the judge to the Federal bench. The judge misled the Senate about his 
background, concealed the kickbacks and graft, waited until after his 
confirmation hearing but before he was

[[Page 19029]]

sworn in to expunge the conviction of another bail bond employee, and 
falsely told the Senate that there was nothing in his background that 
would adversely affect his confirmation.
  Unaware of what the judge had been engaged in, he was confirmed. The 
very reason why the information sought by the Senate was so material--
whether he had a drinking problem; whether he had a gambling problem; 
whether he lived beyond his means; whether he had engaged in conduct 
that would make him the subject of compromise or coercion--was to 
prevent the damage to the institution of the judiciary that would be 
caused by putting a corrupt man on the bench.
  What happened when the judge took the Federal bench was all but 
predictable: The corruption continued. The judge declares bankruptcy; 
he files with a false name and signs under penalty of perjury; he hides 
assets; falsely states his income; secretly takes out a new credit 
card; violates the bankruptcy court order by incurring new debt; he 
files false judicial financial disclosures stating that he has no more 
than $30,000 worth of credit card debt when he owes over $100,000 on 
his credit cards; and, most pernicious to the interests of his 
creditors, he keeps on gambling.
  The judge is assigned a complex case and a trial that has been years 
in the making, pitting a hospital against a pharmacy, and worth many 
tens of millions of dollars. Six weeks before trial, one of the lawyers 
who had been paying him kickbacks in the State court is brought in at 
the last minute to represent the pharmacy.
  The hospital smells a rat. They do not know about the kickbacks, but 
they are suspicious about why an attorney with no experience in the 
case or complex bankruptcy litigation would be brought in. So they ask 
around, and they do not like what they hear. They ask the judge to 
recuse himself and he refuses, falsely representing that he never 
received money from the attorneys but once, and even that was only a 
campaign contribution that went to all of the judges of that parish.
  The case goes to trial, and is taken under submission by the judge. 
While he is considering how to rule, he goes fishing with the lawyer 
who paid him the kickbacks and hits him up for $2,000 more in cash. The 
two partners at the law firm put the cash in an envelope, and the judge 
sends his secretary to pick it up. At the law firm, the judge's 
secretary asks: What is in the envelope? The lawyers' secretary rolls 
her eyes. ``Never mind,'' the judge's secretary says, ``I don't want to 
know.''
  The relationship with the bail bondsman is not over either. He can no 
longer set bonds for them, but he can help them recruit other judges 
who will step into his shoes by vouching for their character, by 
bringing them together, and he does. And now we are here.
  Everyone around the judge has fallen. The bondsmen have gone to jail. 
The other State judges he helped recruit have also gone to jail. The 
lawyers who gave him the cash have lost their licenses and given up 
their practices. Most of all, the institution itself has suffered 
greatly. Litigants and the public in New Orleans wonder, in seeing the 
example of this judge, whether they too must pay a judge in cash and 
under the table, do the home or car repairs or other favors for the 
judge to win their case or have their conviction expunged.
  Only the judge remains defiant, claiming his problems are no more 
than the appearance of impropriety, not actual wrongdoing. He retains 
his office, his title, his full salary, though he hears no cases and 
has not for years and, if he can just eke it out a little longer, a 
full retirement. The judge is a gambler, and he is betting he can beat 
the system just one more time.
  In a moment, I will turn it over to my colleague, Bob Goodlatte, to 
give a detailed presentation that what the House proved at trial were 
high crimes and misdemeanors committed by Judge G. Thomas Porteous. The 
remarkable thing about this case is that most of the pertinent facts 
are not in dispute. As the neutral, factual report prepared by the 
Senate Impeachment Trial Committee demonstrates, the evidence on most 
of the salient points was uncontested.
  At the same time, the report is not a substitute for hearing from the 
witnesses themselves. Because that is not possible for the entire 
Senate, you are hearing from the Senators who did. The Senate 
impeachment committee of 12 conducted a remarkable trial, weighed the 
credibility of every witness, ruled on every objection, heard every 
argument, and they will be a great resource to you in your 
deliberations.
  To give but one example, it is uncontested that Judge Porteous 
solicited and received $2,000 in cash secretly from an attorney and his 
partner while that attorney's case was under submission. Judge Porteous 
himself admits this before the Fifth Circuit. The judge called it a 
loan that he never paid back. But his counsel has taken to calling it a 
wedding gift, as if it were a piece of China from the Pottery Barn. 
Significantly, no one other than defense counsel has ever called this 
cash a wedding gift--not Amato and Creely, who paid it, not the 
secretary who delivered it, and not even the judge himself. This is at 
best defense counsel at his most creative. The 12 Senators who heard 
the testimony are in the best position to refute those 
characterizations which are so at odds with the evidence.
  One last example before I turn it over to Mr. Goodlatte. The defense 
has suggested many times during prior proceedings--and may today--that 
Judge Porteous has been impeached for nothing more serious than having 
lunch with attorneys or bail bondsmen. This was represented to the 
committee of 12 Senators after the pretrial deposition of Bob Creely, 
at which only Senator Johanns was present. But because Senator Johanns 
had heard the testimony, he was able to inform the other Senators of 
what Creely had really said. As Johanns admonished the defense:

       I sat through the Creely deposition, and to suggest that 
     this was about a purchased lunch is really, in my personal 
     opinion, very misleading.

  He later went on to say:

       Again, I will emphasize, please don't try to convince my 
     colleagues that the Creely deposition was just about a free 
     lunch. It was not, and I can cite what I heard that day.

  The 12 Senators who heard these witnesses can cite what they heard 
during that trial, and they will be a tremendous resource.
  I would now like to introduce Mr. Goodlatte of Virginia for a 
detailed presentation of the evidence the House presented. When he 
concludes, we will reserve the remainder of our time for rebuttal 
argument.
  The PRESIDENT pro tempore. The Chair recognizes Representative 
Goodlatte.
  Mr. Manager GOODLATTE. Thank you, Mr. Schiff.
  Mr. President, let me turn to what the evidence showed.
  By way of background, in the early 1970s, Judge Porteous practiced 
law as a partner with Jacob Amato. Robert Creely was an associate who 
worked for them. Amato and Creely ultimately split off and formed their 
own law firm as equal partners. They each remained friends with Judge 
Porteous.
  In 1984, Judge Porteous was elected judge of the 24th Judicial 
District Court in Jefferson Parish, LA, with its courthouse in Gretna, 
outside New Orleans. He served as a State judge from August 1984 
through October 28, 1994, when he was sworn in as a U.S. district judge 
for the Eastern District of Louisiana.
  Starting with article I, let me first describe what the evidence 
established concerning Judge Porteous's ``curatorship'' kickback scheme 
with Creely and Amato.
  While he was a State court judge, Judge Porteous started to ask 
Creely for money. At first, he asked for small amounts--$50 or $100--
money that Creely had in his wallet, which Creely would give him. At 
some point in the mid to late 1980s, Judge Porteous began to request 
more significant sums from Creely, amounts in the range of $500 or 
$1,000. Creely resisted giving Judge Porteous that sort of money. As 
Creely testified:

       I did tell him I was tired of giving him cash. . . . I felt 
     put upon that he continued

[[Page 19030]]

     to ask--I thought it was an imposition on our friendship. . . 
     . I told him a couple of times [``]I'm tired of giving you 
     money. I'm tired of you asking for money.''

  Judge Porteous needed cash, and Creely would not give it to him. So 
what did Judge Porteous do? The evidence demonstrated that Judge 
Porteous came up with what was a kickback scheme. Judge Porteous used 
the power of his judicial office to assign Creely ``curatorships'' and 
then requested and received from Creely and his partner Amato a portion 
of the fees received by their law firm for handling those cases. Over 
time, Judge Porteous received approximately $20,000 from Creely and 
Amato as a result of this arrangement.
  Let me show you what one of these orders looks like. As you see 
here--Mr. President, let me just say that I know it is difficult for 
some of the Senators to see these exhibits. At the conclusion of the 
closing arguments, we will leave all of these exhibits for the Senators 
to examine, if that is appropriate with the Senate.
  As you see, here is an order signed by Judge Porteous assigning 
Robert Creely to be the curator for a missing party in a civil case.
  Creely and his law firm received a fixed fee--$200--for handling each 
of these matters, and it was from those fees that Judge Porteous sought 
the cash from Creely and Amato. This corrupt scheme went on for years.
  The proof of this series of events is evidenced by the interwoven and 
consistent testimony of Creely, Amato, and Judge Porteous himself in 
his testimony under oath before a special committee of the Fifth 
Circuit. It is also corroborated by the court records.
  First, Creely testified that after Judge Porteous started assigning 
the curatorships, Judge Porteous then started calling over to his 
office and saying: ``Look, I've been sending you curators, you know, 
can you give me the money for the curators?'' Creely testified that 
even though he previously had resisted giving Judge Porteous cash, he 
now would give him cash in response to Judge Porteous's demand because 
it ``wasn't costing [him] anything.'' It did not cost Creely anything 
because the money Creely gave Judge Porteous came from the curatorship 
fees.
  Amato--who split the payments to Judge Porteous with Creely 50-50--
corroborated Creely's account of events. Amato testified that Creely 
informed him ``that the judge was sending curator cases to him and that 
he would, in turn, give money to the judge.'' Amato agreed to go along 
with the arrangement but told Creely that ``it was going to turn out 
bad,'' which it clearly has. Amato testified he knew the curatorship 
scheme was wrong but he was not ``strong enough'' to say no to what he 
understood to be a classic kickback arrangement.
  Creely and Amato provided Judge Porteous cash every few months in 
response to Judge Porteous's requests. They gave him cash, as opposed 
to checks drawn on the firm's accounts. According to Amato's testimony, 
this was ``to avoid any kind of paper trail.'' As Creely testified, 
they gave him cash because ``that's what Judge Porteous wanted.'' In 
most instances, Creely gave the cash to Judge Porteous; however, both 
Amato and Creely testified that on occasion Amato personally gave Judge 
Porteous the cash as well.
  Judge Porteous confirmed in his testimony under oath before the Fifth 
Circuit the essential aspects of this scheme. Judge Porteous admitted 
that, one, he received cash from Creely; two, at some point in time, 
Creely expressed his displeasure with giving Judge Porteous cash; 
three, thereafter, Judge Porteous started assigning Creely 
curatorships; and four, that Judge Porteous's receipt of cash from 
Creely and Amato followed his assigning Creely curatorships.
  First, Judge Porteous admitted he received cash from Creely and 
Amato.

       Question. When did you first start getting cash from 
     Messrs. Amato, Creely, or their law firm?
       Answer. Probably when I was on the state bench.
       Question. And that practice continued into 1994, when you 
     became a federal judge, did it not?
       Answer. I believe that's correct.

  Judge Porteous confirmed that there came a time when Creely expressed 
resistance to giving Judge Porteous money before the curatorships 
started.

       Question. Do you recall Mr. Creely refusing to pay you 
     money before the curatorships started?
       Answer. He may have said I needed to get my finances under 
     control, yeah.

  Judge Porteous admitted that his receipt of cash from Creely and 
Amato ``occasionally'' followed his assignment of curatorships to 
Creely. Although Judge Porteous refused to label the arrangement as a 
``kickback,'' he accepted the description of the arrangement that he 
had with Creely and Amato as one where he gave ``Creely and Amato . . . 
curatorships and [was] getting cash back.''
  What about the court records?
  During its investigation, the House located close to 200 orders 
signed by Judge Porteous assigning Creely ``curatorships'' between 
approximately 1988 and 1994. All of these orders are in evidence. These 
curatorships generated fees of nearly $40,000 to the firm. Both Creely 
and Amato have testified consistently that they gave Judge Porteous 
about 50 percent of the proceeds of the curatorship fees or 
approximately $20,000 in total.
  For his part, Judge Porteous testified at the Fifth Circuit that he 
had ``no earthly idea'' how much Creely and Amato gave him, though he 
did not deny the total could have been more than $10,000. Judge 
Porteous testified as follows:

       Question. Judge Porteous, over the years, how much cash 
     have you received from Jake Amato and Bob Creely or their law 
     firm?
       Answer. I have no earthly idea.

                           *   *   *   *   *

       Question. It could have been $10,000 or more. Isn't that 
     right?
       Answer. Again, you're asking me to speculate. I have no 
     idea is all I can tell you.

  On October 28, 1994, Judge Porteous was sworn in as a Federal 
district judge. Judge Porteous was no longer in a position to assign 
curatorships to Creely and Amato, and he stopped asking them for cash--
at least for the time being. The fact that Judge Porteous's requests 
for cash from Creely and Amato temporarily came to an end at the same 
time he stopped assigning them curatorships constitutes additional 
powerful evidence that those two actions were inextricably connected 
and that the cash payments from Amato and Creely to Judge Porteous were 
not merely gifts from the two men separate and apart from the 
curatorships.
  Let me provide you with a little bit more flavor as to Judge 
Porteous's relationship with Amato and Creely. Although I have focused 
on the cash and curatorships, I should stress that Judge Porteous 
depended on the two men to provide for his entertainment and support 
his lifestyle in other major respects.
  For example, while Judge Porteous was a State judge, both Amato and 
Creely frequently took Judge Porteous to lunch at expensive 
restaurants. Amato testified that he took Judge Porteous to lunch ``a 
couple of times a month,'' amounting to ``potentially hundreds of 
lunches,'' and that Judge Porteous paid only two or three times out of 
a hundred. At these lunches, Amato testified he typically paid for ``at 
least two'' Vodka drinks for Judge Porteous. Similarly, Creely also 
took Judge Porteous to lunch approximately twice a month. Creely 
testified that when he and Judge Porteous went to lunch, either Creely 
paid or someone else paid but ``[n]ot Judge Porteous.''
  In addition, Amato and Creely hosted Judge Porteous on a variety of 
hunting and fishing trips and arranged those trips, some of which 
involved air travel to Mexico, so that Judge Porteous never paid.
  They gave him cash on at least one other occasion at his request. In 
the summer of 1994, when Judge Porteous's son Timothy was in 
Washington, DC, for an ``externship,'' Judge Porteous had his 
secretary, Rhonda Danos, solicit and receive money from Creely and 
Amato to ``sponsor'' Timothy's position and pay for his expenses. This 
is all in the record.
  Now let me turn to Judge Porteous's relationship with Amato and 
Creely after he became a Federal judge.

[[Page 19031]]

  On January 16, 1996, Judge Porteous, now a Federal judge, was 
assigned a complicated civil action, Lifemark Hospitals v. Liljeberg 
Enterprises. The Liljeberg case involved a hospital--Lifemark--and a 
pharmacy--Liljeberg--and involved bankruptcy law, real estate law, and 
contract law. The matter was particularly contentious with tens of 
millions of dollars at stake.
  The case was set for a nonjury trial before Judge Porteous in early 
November 1996. He was to be the trier of law and fact. In mid-
September, just 6 weeks prior to the scheduled trial date, the 
Liljebergs filed a motion to enter the appearances of Amato and Leonard 
Levenson--another of Judge Porteous's friends--as their attorneys.
  Amato was hired on a contingent fee basis, which meant his law firm 
would receive a percentage of any award. Amato estimated that if the 
Liljebergs prevailed in the case, he and his firm would have received 
between $500,000 and $1 million. If the Liljebergs lost, he would 
receive nothing.
  Lifemark's lead counsel, Joe Mole, was alarmed when Amato was hired 
by the Liljebergs on the eve of the trial. Even Amato testified: ``I am 
sure my relationship with Judge Porteous had something to do with it.''
  Mole was concerned that Judge Porteous would figure out some way of 
giving an award to the Liljebergs to benefit Amato. Mole feared that 
with Amato on the other side, he would not receive a fair trial. So 
Mole did the only thing he could do under the circumstances. He filed a 
motion asking Judge Porteous to recuse himself, which essentially 
requested that Judge Porteous have the case assigned to another judge. 
Mole drafted the motion based on his limited understanding of the 
facts, alleging in substance only ``that there was a close relationship 
between Judge Porteous and Mr. Amato and Levenson,'' that they were 
known to socialize together, that Amato and the judge had been law 
partners, and that the timing of Amato's entry into the case, just a 
few weeks prior to trial, ``created suspicion.''
  Mole had no idea that Amato, along with his partner Creely, had 
actually given Judge Porteous approximately $20,000 pursuant to the 
curatorship kickback arrangement, nor did he know about the other 
things of value that Amato or Creely had provided to Judge Porteous.
  Judge Porteous held a hearing on Mole's motion. Judge Porteous's 
statements at the recusal hearing are set forth in detail in our brief, 
and the hearing transcript is also in evidence. So I am not going to 
repeat all of them here.
  In sum, Judge Porteous made a series of deceptive, misleading, and 
lulling statements in which he minimized his relationship with Amato, 
concealed the fact of a curatorship kickback scheme, and criticized 
Mole for filing an unfounded motion.
  In essence, Judge Porteous portrayed the relationship with Amato as 
simply the same sort of unexceptional relationship that he would have 
had with any member of the bar. For example, Judge Porteous stated:

       Yes, Mr. Amato and Mr. Levenson are friends of mine. Have I 
     ever been to either one of them's house? The answer is a 
     definitive no. Have I gone to lunch with them? The answer is 
     a definitive yes. Have I been going to lunch with all the 
     members of the bar? The answer is yes.

  Even that is misleading because Judge Porteous had, in fact, accepted 
hundreds of meals at expensive restaurants from Amato and his partner 
Creely.
  But, most significantly, Judge Porteous made no mention whatsoever of 
what he knew was really the issue; that is, that he had received 
approximately $20,000 in cash from Amato's law firm--money that he knew 
came from Amato as well as Creely.
  When Mole, at great disadvantage, made a reference to the fact that 
Amato and Levenson had contributed to Judge Porteous's campaigns, Judge 
Porteous went on the offense:
  Well, luckily, I didn't have any campaigns, so I am interested to 
find out how you know that. I never had any campaigns, counsel. I have 
never had an opponent.
  He went on to say:

       The first time I ran, 1984, I think is the only time they 
     gave me money.

  That blanket statement was, of course, a deliberate falsehood because 
Amato and his firm had given Judge Porteous approximately $20,000 in 
cash pursuant to the kickback scheme.
  Judge Porteous concluded, with this self-serving comment in which he 
promises to notify counsel if he has any question that he should recuse 
himself, and concluded:

       I don't think a well-informed individual can question my 
     impartiality in this case.

  So, in effect, what you have is Judge Porteous, who knows the facts, 
just not disclosing it, completely deceiving Lifemark and its counsel 
as to the true nature of his actual relationship with Amato, and Judge 
Porteous announcing to the world how honest he was--complete with the 
mock indignation.
  Judge Porteous denied the recusal motion after the argument in open 
court on October 16, 1996. Lifemark appealed to the Fifth Circuit, 
seeking to overturn Judge Porteous's order. However, because of the 
false record created by Judge Porteous at the recusal hearing, that 
appeal was denied.
  Trial was held without a jury in December of 1997, and Judge Porteous 
took the case under advisement. While the case was pending his 
decision, Judge Porteous continued to solicit and accept cash and 
things of value from Amato and Creely.
  In May 1999, while Judge Porteous had not yet ruled on the case, he 
went to Las Vegas, NV, with several friends, including Creely, for his 
son's bachelor party. Creely paid for Judge Porteous's hotel room and 
some incidental room charges amounting to over $500. He also paid over 
$500 for a portion of Timothy Porteous's bachelor party dinner. These 
payments amounted to more than $1,100 and are set forth on Creely's 
American Express card, which is in evidence. After the dinner, Creely 
accompanied Judge Porteous and others to a strip club, where Creely 
gave an employee $200 to pay for a lap dance for Judge Porteous and a 
courthouse employee. Judge Porteous admitted in his Fifth Circuit 
testimony that Creely paid for his hotel room and a portion of the 
dinner.
  In June of 1999, while Judge Porteous still had the Liljeberg case 
under consideration, the two men took a nighttime fishing trip 
together. On the fishing trip, Judge Porteous told Amato he needed cash 
for his son's wedding and requested that Amato give him approximately 
$2,000.
  In response to that request, Amato agreed to give Judge Porteous the 
money he solicited. Amato supplied $1,000 and obtained approximately 
$1,000 from his partner Creely and gave Judge Porteous $2,000 in cash 
in an envelope. As Amato would later testify, it was ``a decision I'll 
regret until the day I die.''
  As the Senate Impeachment Trial Committee Report found, the $2,000 
was picked up by Judge Porteous's secretary, Rhonda Danos. When Danos 
asked the law firm secretary what was in the envelope, the secretary 
rolled her eyes. In response, Danos said: ``Nevermind, I don't want to 
know.''
  Like much of the other evidence, the fact that Judge Porteous 
solicited and received money from Amato in 1999 while the Liljebergs 
case was pending is not contested. Here is how Judge Porteous testified 
under oath before the Fifth Circuit:

       Question. [W]hether or not you recall asking Mr. Amato for 
     money during this fishing trip, do you recall getting an 
     envelope with $2,000 shortly thereafter.
       Answer. Yeah. Something seems to suggest that there may 
     have been an envelope. I don't remember the size of an 
     envelope, how I got the envelope, or anything about it.
       Question. Wait a second. Is it the nature of the envelope 
     you're disputing?
       Answer. No. Money was received in [an] envelope.
       Question. And had cash in it?
       Answer. Yes, sir.
       Question. And it was from Creely and/or----
       Answer. Amato.
       Question. Amato?
       Answer. Yes.
       Question. And would you dispute that the amount was $2,000?
       Answer. I don't have any basis to dispute it.


[[Page 19032]]


  At the time he made the request, Judge Porteous had significant 
financial leverage over Amato, and his solicitation of cash from Amato 
had a ``shakedown'' quality to it. Amato bluntly acknowledged that one 
of the factors that impacted his decision to give Judge Porteous the 
cash was that Amato stood to make a lot of money in connection with the 
Liljeberg case then pending in front of the judge, and that Amato was 
not willing to ``take the risk'' of not giving Judge Porteous the cash 
the judge solicited.
  Judge Porteous's solicitation of cash from Amato demonstrates Judge 
Porteous's egregious misuse of his judicial power to enrich himself. A 
judge who engages in such conduct is unfit to hold the office of U.S. 
district judge.
  In addition, Amato and Creely continued to take Judge Porteous out to 
expensive lunches on a regular basis and paid over $1,000 for a party 
in honor of his fifth year on the bench.
  Mole knew nothing of Judge Porteous's relationships with Amato and 
Creely while the case was pending. Specifically, Judge Porteous did not 
inform Mole of the meals, the payments of expenses in Las Vegas, or the 
$2,000 cash payment.
  On April 26, 2000, Judge Porteous issued a written opinion in the 
Liljeberg case. At that time, his financial situation was desperate, 
and he was just weeks away from meeting with a bankruptcy attorney. 
Judge Porteous, who had taken judicial actions in the past with Amato 
and Creely to enrich himself, had powerful financial motives to curry 
their favor, reward them for their past loyalty and generosity, and 
encourage it in the future.
  Thus, it is not surprising that Judge Porteous ruled in all major 
aspects in favor of Amato's clients, the Liljeberg. Counsel for 
Lifemark testified that this was ``a resounding loss'' for Lifemark, 
and Lifemark appealed Judge Porteous's decision to the Fifth Circuit 
Court of Appeals.
  In August of 2002, the Fifth Circuit reversed Judge Porteous's 
decision in most significant aspects. In doing so, the Fifth Circuit 
characterized various aspects of Judge Porteous's rulings as 
``inexplicable,'' ``constructed entirely out of whole cloth,'' 
``absurd,'' ``close to being nonsensical,'' and ``not supported by 
law.''
  After the case was reversed by the Fifth Circuit and sent back to 
Judge Porteous, the parties settled because Lifemark understandably did 
not want to go back before Judge Porteous.
  Article II.
  Now let me turn to article II--Judge Porteous's relationship with 
bail bondsmen Louis Marcotte and his sister Lori Marcotte. For that, it 
is necessary to return to Judge Porteous's roots as a State court 
judge.
  First, let me briefly describe how the bail bonds business worked in 
Jefferson Parish.
  From the financial perspective of bail bondsman Louis Marcotte, he 
would make no money if the judge set bonds so high that the prisoner or 
his family could not afford to pay the premium or if a judge set bond 
so low that the premium was an insignificant sum. What Marcotte really 
wanted was for a bond to be set at the maximum amount for which the 
prisoner could afford to pay Marcotte the premium, which was typically 
10 percent of the bond amount. That is how he maximized profits. He 
would interview the prisoner, know what the prisoner could afford, and 
attempt to have bond set at that profit-maximizing amount. If a 
prisoner or his family could scrape together $5,000, Marcotte would 
want a judge to set bail at ten times that amount, or $50,000, even if 
a lower amount would have been appropriate.
  Now, in the Gretna Louisiana Courthouse where Judge Porteous sat, 
bail bondsmen like Marcotte dealt one-on-one directly with the judges 
and magistrates to have them set bonds. Prosecutors and defense 
attorneys were virtually never involved.
  It is against this background that Judge Porteous's relationship with 
the Marcottes can thus be understood. Marcotte needed a judge who would 
be receptive to his bond request--to reduce bonds when they were too 
high and to set them in higher amounts if they were going to be set too 
low. As we know from Judge Porteous's relationship with Amato and 
Creely, Judge Porteous needed and welcomed financial support from 
whomever would provide it and was more than willing to use his judicial 
power to obtain it. Judge Porteous and Marcotte each understood what 
the other could do for him, and they formed a mutually beneficial 
corrupt relationship.
  First, as to what the Marcottes gave Judge Porteous, the evidence 
establishes the Marcottes frequently took Judge Porteous to high-end 
restaurants for lunch, paying for meals and drinks. Over time, these 
lunches may have occurred as much as twice per week. These lunches 
seemed to have started in or about 1992 and are corroborated by several 
witnesses. The Marcottes let Judge Porteous invite whomever he wanted, 
especially other judges, and Judge Porteous's presence as the 
Marcottes' guest helped the Marcottes establish their legitimacy.
  The Marcottes also paid for car repairs and routine car maintenance 
for Judge Porteous. On occasion these repairs were substantial and 
included things such as buying new tires or engine and transmission 
repairs or installing a new radio. In addition, Marcotte employee 
Aubrey Wallace would routinely pick up Judge Porteous's car to wash it 
and fill it with gas.
  Wallace testified that Judge Porteous gave him his security code so 
that he could go into the judge's parking lot at the courthouse. Judge 
Porteous would leave the key under the mat. Wallace would pick up Judge 
Porteous's car and return it washed, gassed, and occasionally with a 
gift such as liquor left inside.
  No fewer than five witnesses corroborated the fact that the Marcottes 
paid for Judge Porteous's car repairs.
  In addition, Marcotte also paid for home repairs for Judge Porteous 
when an 80-foot section of fence had to be replaced. Testimony at trial 
from Marcotte employees Duhon and Wallace established the project took 
3 days to complete.
  The Marcottes also paid for a trip to Las Vegas for Judge Porteous. 
On this trip, Judge Porteous's secretary, Rhonda Danos, had paid for 
the judge's transportation up front. The evidence is clear that Lori 
Marcotte later paid for this trip by giving Danos cash--in Judge 
Porteous's chambers. Both Louis Marcotte and Lori Marcotte testified 
that the payment was in cash to conceal the fact that the Marcottes had 
paid for this trip. There is no pretense that this was some sort of 
legitimate act of generosity. It was obviously improper and hidden by 
the parties for that reason.
  In return, Judge Porteous willingly became Marcotte's ``go-to'' judge 
for setting bonds. Marcotte went directly to Judge Porteous with 
recommended bond amounts--bond amounts that would maximize their 
income. Judge Porteous was receptive to them and signed countless bonds 
at their request. They would go to his chambers and tell him how much 
the prisoner could afford as part of the discussions where they 
requested that he set bail.
  As Senator Risch observed during the trial, it was really the poorest 
families who were hurt by Judge Porteous's relationship with Marcotte. 
An inherent aspect of their corrupt dealings was that bonds would be 
set at a higher amount than might have been set by a neutral judge who 
was not on the take.
  And the opposite is also true: the public interest was potentially 
compromised when Judge Porteous reduced a bond at the Marcottes' 
request which thereby led to the release of someone who otherwise 
should have been confined. The Marcotte-Porteous relationship perverted 
what should have been a neutral, detached process.
  In addition to setting bonds as requested, Judge Porteous took other 
judicial acts of significance for the Marcottes. In 1993, at Louis 
Marcotte's request, Judge Porteous expunged the felony conviction of a 
Marcotte employee--Jeff Duhon--so Duhon could obtain his bail 
bondsman's license.
  In 1994, again at Marcotte's request, Judge Porteous set aside the 
conviction of another Marcotte employee, Aubry Wallace. This took place 
during Judge Porteous's last days on the State bench and evidences the 
extent to

[[Page 19033]]

which Judge Porteous was beholden to the Marcottes. As I will get to in 
a few moments, Judge Porteous timed this judicial action to occur after 
the Senate's confirmation of him for the Federal judgeship so as to 
conceal his corrupt relationship with the Marcottes and thereby not 
jeopardize his lifetime appointment.
  There was one more thing that Marcotte did for Judge Porteous as part 
of their corrupt relationship when Judge Porteous was a State judge. In 
the summer of 1994, when Judge Porteous was undergoing his background 
check, the FBI interviewed Marcotte. In that interview, Marcotte lied 
for Judge Porteous on three specific points. First, he stated that 
Judge Porteous would have ``a beer or two'' at lunch, when, in fact, 
Marcotte knew that Judge Porteous was a heavy vodka drinker with an 
alcohol problem who would, on occasion, have five or six drinks. 
Second, Marcotte stated that he had no knowledge of Judge Porteous's 
financial circumstances, when, in fact, he knew that Judge Porteous 
struggled financially.
  Finally, and most importantly, when interviewed by the FBI, Marcotte 
denied that there was anything in Judge Porteous's background that 
could subject the judge to coercion, blackmail or leverage. This was 
also not true, because Marcotte himself knew that he had a corrupt 
relationship with Judge Porteous and that he himself had leverage over 
Judge Porteous because of that relationship. In fact, Marcotte 
testified bluntly in September before the Senate Impeachment Trial 
Committee that he could have ``destroyed'' Judge Porteous had he chosen 
to do so. Marcotte told the FBI what he believed Judge Porteous wanted 
him to say. In effect, Marcotte acted as Judge Porteous's agent in 
lying to the FBI. Marcotte then reported back to Judge Porteous as to 
the contents of the interviews, and told Judge Porteous he gave him a 
clean bill of health.
  Indeed, there can be little pretense that the Judge Porteous-Louis 
Marcotte relationship was anything other than a corrupt business 
relationship. They were brought together by their financial needs. 
Marcotte was clear that the only reason he took Judge Porteous to 
lunch, took him to Las Vegas, fixed his cars, or fixed his house was 
because the judge was assisting them in setting bonds, and using the 
prestige of his office to help them with other judges. Marcotte 
testified: ``[Judge Porteous] would do more when we would do more for 
him.''
  After Judge Porteous became a Federal judge, he could no longer set 
bonds for the Marcottes. Nonetheless, the Marcottes would continue to 
take Judge Porteous to lunch, particularly when they sought to recruit 
other State judicial officers to take his place in a similar corrupt 
scheme, or to impress business executives. Louis Marcotte explained 
that Judge Porteous ``brought strength to the table'' by his presence 
and his assistance. Marcotte testified: ``It would make people respect 
me because, you know, I am sitting with a Federal judge.'' As Lori 
Marcotte described: ``[State court judges] would view us as trusted 
people because we were hanging around with a federal judge.''
  Thus, Judge Porteous used the power and prestige of his office as a 
Federal judge to help the Marcottes expand their corrupt influence in 
the Gretna courthouse by vouching for their honesty, vouching for their 
practices, and helping to recruit a successor. Our post-trial brief 
details several instances of Judge Porteous providing assistance to the 
Marcottes as a Federal judge.
  Let me talk about one of those instances in particular. In 1999, at 
Louis Marcotte's request, Judge Porteous spoke to newly elected State 
judge Ronald Bodenheimer. Prior to that conversation, Bodenheimer 
``stayed away from Louis Marcotte'' because he had concerns about 
Marcotte's character and believed that Marcotte was doing drugs. During 
his conversation with Bodenheimer, Judge Porteous--then a United States 
District Court Judge--vouched for Louis Marcotte's integrity. 
Bodenheimer took Judge Porteous's statements seriously, and as a result 
of that conversation, Bodenheimer began to set bonds for the Marcottes.
  The Marcottes and Bodenheimer developed a relationship that took on 
the characteristics of the relationship that had previously existed 
between Judge Porteous and the Marcottes. The Marcottes began providing 
Bodenheimer meals, house repairs, and a trip to the Beau Rivage casino, 
and Bodenheimer in return began to set bonds that would maximize 
profits for the Marcottes. Bodenheimer was eventually criminally 
prosecuted, pleaded guilty, and was sentenced to prison on a Federal 
corruption count arising from his corrupt relationship with the 
Marcottes.
  Let me now get to one final act of the Marcotte-Porteous 
relationship. In the early 2000s, the FBI was investigating State court 
judges--including Bodenheimer--for corrupt misconduct arising out of 
their relationship with the Marcottes. On April 17, 2003, Louis 
Marcotte signed an affidavit prepared by Judge Porteous's attorney in 
which he falsely denied that he and Judge Porteous had a corrupt 
relationship.
  I mention this 2003 affidavit for two reasons. First, this 2003 
affidavit reflects that the corrupt relationship between the Marcottes 
and Judge Porteous continued during his tenure as a Federal judge. 
Second, just as Marcotte's 1994 false statements to the FBI helped 
obstruct the background check investigation, Marcotte's 2003 false 
affidavit--prepared by Judge Porteous's attorney--was a part of an 
effort to obstruct a criminal investigation. In both instances Marcotte 
lied to the FBI to assist Judge Porteous by concealing their corrupt 
relationship. It reflects how even in 2003, Judge Porteous was 
compromised by his relationship with Louis Marcotte.
  In March 2004, Louis Marcotte pleaded guilty to a racketeering 
conspiracy charge involving his corrupt relationship with State judges. 
He was sentenced to 38 months in prison. His sister Lori Marcotte 
pleaded guilty at the same time as her brother and was sentenced to 3 
years probation, including 6 months of home detention.
  In his House testimony, his deposition, and at trial, Louis Marcotte 
repeatedly described Judge Porteous's overall impact on the Marcottes' 
business as even more significant than two other State judges who were 
federally prosecuted and were sentenced to jail.

       Question. Mr. Marcotte, you testified in response to Mr. 
     Turley that you did things for lots of judges.
       Answer. Yes, I did.
       Question. And some of those judges went to prison, did they 
     not?
       Answer. Yes, they did.
       Question. Of all the judges that you did things for, who 
     was the most important judge to you, ever?
       Answer. Thomas Porteous.

  Now let me turn to article III involving Judge Porteous's bankruptcy 
while he was on the Federal bench.
  The evidence demonstrated that throughout the 1990s and into 2001, 
Judge Porteous's financial condition deteriorated, largely due to 
gambling at casinos, to the point that by March of 2001, when he filed 
for bankruptcy, he had over $190,000 in credit card debt. His credit 
cards and bank statements in the years preceding his bankruptcy reflect 
tens of thousands of dollars in cash withdrawals at casinos.
  Before discussing how Judge Porteous deceived the bankruptcy court, I 
want to stress that for the years leading up to his bankruptcy, Judge 
Porteous had concealed his debts in the financial statements that he 
filed with the courts. Let me show you an example.
  This is a little detailed, so let me walk you through it. What you 
see here is the portion of Judge Porteous's 1999 Financial Disclosure 
Report in which he was required to disclose his year-end liabilities. 
Judge Porteous reported two credit cards with the maximum liability 
being $15,000 each--``Code J''--for a total maximum liability of 
$30,000.
  In fact, he had five credit cards with debts amounting to over 
$100,000. These should have been reported on the form in the 
Liabilities box as Code ``K''--debts over $15,000. This form was 
blatantly false.
  Judge Porteous filed false financial statements that failed to 
honestly disclose the extent of his credit card debts

[[Page 19034]]

for each of the 4 years--1996 through 1999. Those forms are in 
evidence.
  Even though Judge Porteous has not been charged in any article with 
filing false financial reports, these reports constitute powerful 
evidence as to Judge Porteous's intent. These false financial reports 
make it clear that the false statements in bankruptcy were part of a 
conscious course of conduct involving his concealment of financial 
activities, and not some set of innocent mistakes or oversights as 
claimed by counsel.
  In 2000, Judge Porteous met with bankruptcy attorney Claude Lightfoot 
about his financial predicament. The evidence demonstrates that Judge 
Porteous did not tell Lightfoot at that time--or indeed at any time--
that he gambled.
  The two men decided that Lightfoot would attempt to work out Judge 
Porteous's debts owed to his creditors, and then, if that failed, that 
Judge Porteous would consider filing for bankruptcy. Lightfoot's 
attempt at a ``workout,'' failed, and, in about February of 2001, 
Lightfoot and Judge Porteous commenced preparing for chapter 13 
bankruptcy.
  Prior to filing for bankruptcy, Judge Porteous, in consultation with 
Lightfoot, agreed that he would file his bankruptcy petition under a 
false name. To further this plan, Judge Porteous obtained a post office 
box, so that his initial petition would have neither his correct name 
nor a readily identifiable address.
  If you look at this exhibit, you will see that ultimately, on March 
28, 2001, Judge Porteous--a sitting Federal judge--filed for bankruptcy 
under the false name ``G. T. Ortous'' and with a post office box that 
Judge Porteous had obtained on March 23, 2001, listed as his address. 
Judge Porteous signed his petition twice, once under the 
representation: ``I declare under the penalty of perjury that the 
information provided in this petition is true and correct,'' the other 
over the typed name ``G.T. Ortous.''
  On April 9, 2001, Judge Porteous submitted a ``Statement of Financial 
Affairs'' and numerous bankruptcy schedules. This time, they were filed 
under his true name. However, they were false in numerous other ways, 
all reflecting his desire to conceal assets and gambling activities 
from the bankruptcy court and his creditors.
  While I am not going through all his false statements during the 
bankruptcy--they are detailed in our post-trial brief--I want at least 
to point out some to you:
  He falsely failed to disclose that he had filed for a tax refund 
claiming a $4,143.72 refund, even though the bankruptcy forms 
specifically inquired as to whether he had filed for a tax refund.
  As you see, this chart sets forth his tax return, dated March 23, 
2001--5 days before he filed for bankruptcy.
  It also shows the place on the form where he was required to list any 
anticipated tax refund. The copy here is not as clear as we would like, 
but question 17 required Judge Porteous to disclose ``other liquidated 
debts owing debtor including tax refunds.'' As you see, the box 
``none'' is checked. Judge Porteous never disclosed the fact of this 
refund--not to his attorney, not to his creditors, and not to the 
bankruptcy court. Instead, he kept it secret, and the money went right 
into his pocket.
  He deliberately failed to disclose that he had gambling losses within 
the prior year, even though the forms specifically asked that question. 
In fact, Judge Porteous has admitted before the fifth circuit that he 
had gambling losses. In the days immediately prior to filing for 
bankruptcy, he paid casinos debts that he owed them in order to avoid 
listing those casinos as unsecured creditors. Additionally, he failed 
to record those preferred payments to creditors in the bankruptcy forms 
which required their disclosure, and failed to tell his attorney about 
them. Thus, casinos to which Judge Porteous owed money in March of 2001 
received 100 cents on the dollar while other creditors received but a 
fraction of that amount. Judge Porteous favored casinos over other 
creditors because he did not want to jeopardize his ability to take out 
credit and gamble at the casinos while in bankruptcy.
  He had his secretary pay off one of his wife's credit cards 5 days 
prior to filing for bankruptcy. Judge Porteous then reimbursed his 
secretary and failed to disclose this preferred payment to the credit 
card company on his schedules that he filed under oath with the court.
  He reported his account balance in his checking account as $100, when 
on the day prior to filing for bankruptcy he had deposited $2,000 into 
the account. He deliberately failed to disclose a Fidelity money market 
account that he regularly used in the past to pay gambling debts. This 
particular nondisclosure demonstrates Judge Porteous's determination to 
have a secret account available with which to pay gambling debts while 
in bankruptcy. This nondisclosure clearly was not inadvertent, since 
the evidence is clear that he wrote a check on that account on March 
27, 2001, the day prior to filing for bankruptcy.
  The single organizing principle that arranges this pattern of false 
statements is Judge Porteous's desire to conceal assets and to conceal 
his gambling so that he could gamble while in bankruptcy without 
interference from the court or the creditors or even his lawyer.
  At a hearing of creditors on May 9, 2001, Judge Porteous, under oath, 
testified that the schedules were accurate. That statement, like so 
many of Judge Porteous's other statements under oath, was false. At 
that hearing, the bankruptcy trustee also informed Judge Porteous that 
he was on a ``cash basis'' going forward.
  At the end of June 2001, bankruptcy Judge William Greendyke issued an 
order approving the chapter 13 plan, specifically directing Judge 
Porteous not to incur new debt without the permission of the court. 
Notwithstanding Judge Greendyke's order, Judge Porteous did incur 
additional debt without the permission of the court. He applied for and 
used a credit card.
  Here is a blowup that includes a copy of Judge Porteous's application 
for a credit card and the statement showing its use in September of 
2001--in violation of the order of the court.
  More particularly, Judge Porteous continued to borrow from the 
casinos without the court's permission. This chart, which was used at 
trial, lists 42 times that he took out debt at casinos to gamble in the 
first of the 3 years he was in bankruptcy.
  Further, as Judge Porteous had planned, in some instances, he paid 
these casino debts through the Fidelity money market account that he 
concealed. Here, at the top of this blowup, is a check he wrote on the 
concealed Fidelity money market in the amount of $1,800 to the Treasure 
Chest Casino in November of 2001. Below it is a check in the amount of 
$1,300 to Grand Casino Gulfport also drawn on the undisclosed money 
market account in July of 2002. Both of these checks repay the 
outstanding debts to the casinos. In short, he engaged in a pattern of 
deceitful activity designed to frustrate and confound the bankruptcy 
process.
  The harm wrought by Judge Porteous's conduct in bankruptcy is really 
incalculable. The bankruptcy process depends totally on the honesty and 
candor of debtors. The trustee does not dispatch investigators to check 
on a debtor's sworn representations. Judge Porteous's display of 
contempt for the bankruptcy court is little more than a display of 
contempt for his own judicial ofice. A Federal judge who in fact heard 
bankruptcy appeals in his court should be expected to uphold the 
highest standards of honesty. It is inexcusable that Judge Porteous 
manipulated this process for his own benefit.
  Let me now discuss article IV, and for that I need to return to the 
summer of 1994. Let me set the stage. At that time, while Judge 
Porteous was being considered for a Federal judgeship, he was engaging 
in two corrupt schemes: first, the curatorship kickback scheme with 
Creely and Amato that I previously described in connection with article 
I; and second, the corrupt relationship with the Marcottes I described 
in connection with article II.
  Judge Porteous knew if the White House and the Senate found out about 
his relationships with either Creely

[[Page 19035]]

and Amato or the Marcottes, he would never be nominated, let alone 
confirmed. In the course of the background investigation, and during 
the confirmation process, Judge Porteous was asked questions on four 
separate occasions that, if he were to answer the questions truthfully 
and candidly, required him to disclose his relationships with Creely 
and Amato and the Marcottes. On each instance, Judge Porteous lied. 
Because those four statements are at the heart of article IV, let me 
show you exactly what Judge Porteous was asked and exactly what he 
answered.
  First, at some time prior to July of 1994, Judge Porteous filled out 
a form referred to as the ``Supplement to the SF-86.'' On that form is 
a question that goes to the very heart of the issue associated with the 
background process. On that form Judge Porteous was asked:

       Question. Is there anything in your personal life that 
     could be used by someone to coerce or blackmail you? Is there 
     anything in your life that could cause an embarrassment to 
     you or to the President if publicly known? If so, please 
     provide full details.

  To which Judge Porteous answered: No.
  Judge Porteous signed that document under warnings of criminal 
penalties for making false statements. This statement was a lie.
  On July 6 and July 8, 1994, Judge Porteous was personally interviewed 
by an FBI agent as a part of the background check process. Judge 
Porteous was asked by the agent the same sort of questions I discussed 
in connection with the SF-86. His answers were incorporated in a 
memorandum of the FBI agent that summarized the interview. Let me show 
you the relevant portions of the memorandum. Judge Porteous was 
recorded as saying that:
  [He was] 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.
  These statements were also a lie.
  After that interview, the FBI in New Orleans sent the background 
check to FBI headquarters in Washington, DC, for their review. FBI 
headquarters directed the agents to interview Judge Porteous a second 
time about a very particular allegation the FBI had received in 1993 
that Judge Porteous had taken a bribe from an attorney to reduce the 
bond for an individual who had been arrested.
  So on August 18, 1994, the FBI conducted a second in-person interview 
with Judge Porteous, this time probing possible illegal conduct on his 
part in connection with bond setting. Again, the FBI writeup of the 
interview records Judge Porteous as stating that he was unaware of 
anything in his background that might be the basis of attempted 
influence, pressure, coercion or compromise and/or would impact 
negatively on his character, reputation, judgment or discretion.
  And again he lied.
  Finally, after he was nominated, the United States Senate Committee 
on the Judiciary sent Judge Porteous a questionnaire for judicial 
nominees. Again, I am showing you the document. Judge Porteous was 
asked the following question and gave the following answer:

       Question. Please advise the committee of any unfavorable 
     information that may affect your nomination.
       Answer. To the best of my knowledge, I do not know of any 
     unfavorable information that may affect my nomination.

  The signature block is in the form of an affidavit that the 
information provided in the document is true and accurate. Judge 
Porteous lied for a fourth time.
  The questions Judge Porteous was asked are clear and unambiguous. In 
each of the four instances, the questions called for Judge Porteous to 
disclose his relationship with Amato and Creely and the Marcottes. 
There is additional evidence that suggests Judge Porteous would have 
well understood the reach of those questions.
  First, the second of his two FBI interviews addressed Judge 
Porteous's bond-setting practices. It is hard to imagine he could have 
been put on more specific notice that his relationship with Marcotte 
and his conduct in setting bonds was relevant and should be disclosed.
  Second, Judge Porteous's understanding of the materiality of his 
relationship with Marcotte and his intent to conceal it is further 
evidenced by his statements and conduct associated with setting aside 
of Aubry Wallace's felony conviction, which I referenced earlier. As I 
mentioned, Marcotte had an employee named Aubry Wallace, who had helped 
take care of Judge Porteous's cars and also fixed his house. At around 
the time of his confirmation, Marcotte went to Judge Porteous and asked 
him to set aside Wallace's burglary conviction, to take the first step 
in getting rid of his felony convictions, so that Wallace would 
ultimately be allowed to obtain a bail bonds license.
  Judge Porteous agreed to do it, but informed Marcotte that he would 
do so only after he was confirmed by the Senate, because he did not 
want to jeopardize his ``lifetime appointment.'' When asked to describe 
Judge Porteous's response to his request, Marcotte testified:

       Answer. He kind of put me off and put me off. And he said 
     look, Louis, I'm not going to let anything stand in the way 
     of me being confirmed and my lifetime appointment, so after 
     that's done I will do it.

  Marcotte went on to explain the nature of Judge Porteous's concern.

       If the government would have found out some of the things 
     that he was doing with me, it would probably keep him from 
     getting his appointment.

  Senator McCaskill specifically asked Marcotte as to whether Judge 
Porteous used the ``lifetime appointment'' phrase. In response, 
Marcotte's answer was clear:

       That was the words of Judge Porteous.

  In substance, Judge Porteous said that he would set aside Wallace's 
conviction but that he was going to hide it from the Senate. It is hard 
to conceive of a clearer, more explicit expression of intent to deceive 
the Senate.
  Judge Porteous's actions corroborate Marcotte's recollection of the 
conversation. He was confirmed by the Senate on October 7, 1994, and 
set aside Wallace's conviction, as he said he would, after that on 
October 14, 1994.
  The timing of the Wallace set-aside confirms that Judge Porteous 
calculated and plotted to conceal material facts concerning his 
relationship with Louis Marcotte from you, the United States Senate. 
The procedural history of Wallace's case is discussed in our post-trial 
brief. But the salient fact is that Judge Porteous could have set aside 
the conviction, if he chose to do so, weeks prior to his confirmation. 
Absolutely nothing in Wallace's case occurred that explains his delay 
in waiting until after the confirmation. The only event of significance 
that explains the timing is that Judge Porteous was confirmed in the 
interim.
  Moreover, Judge Porteous's willingness to set aside Wallace's 
conviction at Marcotte's request constitutes proof positive that Judge 
Porteous was in fact subject to coercion, leverage, and compromise--the 
very fact as to which Judge Porteous was questioned and which Judge 
Porteous denied.
  Because of the fraud committed by Judge Porteous on the FBI and the 
Senate, Judge Porteous was in fact confirmed and was sworn in on 
October 28, 1994. He has been a Federal judge, enjoying the fruits of 
his deceit and the power of the position since that date.
  In conclusion, the House has proved each of the four Articles of 
Impeachment. The evidence demonstrates that Judge Porteous is dishonest 
and corrupt and does not belong on the Federal bench. He has signed 
false financial forms, false questionnaires, and even signed documents 
under a false name under penalty of perjury. He has engaged in corrupt 
schemes with attorneys and bail bondsmen. He has betrayed his oath in 
handling a case dishonestly and with partiality and favor, 
characterized by making false statements at a hearing concerning his 
financial relationship with one of the attorneys, and then soliciting 
cash from that attorney while the case awaited Judge Porteous's 
decision. He has brought disgrace and disrepute to the Federal bench.
  The evidence demonstrates he has committed high crimes and 
misdemeanors, and the House requests

[[Page 19036]]

that you find him guilty on each of the four counts and remove him from 
an office he is not fit to occupy.
  Thank you for your time and attention.
  We reserve the balance of our time.
  The PRESIDENT pro tempore. Thank you very much.
  Professor Turley, you may proceed on behalf of the judge.
  Mr. TURLEY. Thank you, Mr. President, Members of the Senate. For 
those who were not present this morning, I am Jonathan Turley, the 
Shapiro Professor of Public Interest Law at George Washington 
University and counsel to Judge G. Thomas Porteous, a judge of the 
United States District Court for the Eastern District of Louisiana. 
Joining me again at counsel's table are my colleagues from the law firm 
of Bryan Cave: Daniel Schwartz, P. J. Meitl, and Daniel O'Connor.
  Sitting here, listening to my esteemed opposing counsel, one is 
easily put in mind of another trial held almost 220 years ago--almost 
to this very day.
  In a case that proves to be one of the turning points in American 
law, eight British soldiers were accused of murder in what Americans 
call the Boston Massacre and what the English call the Boston Riot.
  Columnists demanded that the soldiers be executed and everyone came 
to the trial expecting less of a trial as much as a hanging. Adams 
himself saw the case differently. In fact, John Adams saw not just 
another case but the very cause for which he was already fighting, the 
creation of a new nation based on due process and principles of 
justice.
  As in today's case, many of the facts were not in dispute in 1770. It 
was clear the British soldiers fired into the crowd, but Adams stopped 
the jury and challenged them to consider two questions: No. 1, whether 
the soldiers had acted with the required intent and malice; and, No. 2, 
whether the requested punishment--death--fit the crime.
  It was also one of the earliest uses of the reasonable doubt standard 
ever recorded in our country. Proof and proportionality became the 
touchstone of that case and later cases that Adams helped bring into 
existence. In words that would echo through the ages, Adams warned the 
jury:

       Whatever may be our wishes, our inclinations, or the 
     dictates of our passions, they cannot alter the state of 
     facts and evidence. The law will not bend to uncertain 
     wishes, imagination or wanton tempers of men.

  When the Framers turned to the Constitution, they sought to protect 
the judiciary from wanton and imagined offenses. In cases of 
impeachment, the Framers expressed fears that Congress would yield to 
passions over proof in the removal of Federal judges. James Madison, 
George Mason, and others carefully crafted the standard of impeachment 
to protect the independent judiciary, and Madison said expressly that 
they wanted to avoid standards ``so vague as to be the equivalent of 
tenure during the pleasure of the Senate.'' That is what they wanted to 
avoid.
  They rejected ``corruption'' because they knew the term 
``corruption'' could be used to mean most anything. For that reason, 
that term was adopted by the House in this case. It hasn't changed.
  The Framers explicitly debated and rejected this vague standard of 
maladministration and instead demanded that a Federal judge could not 
be removed absent proof of treason, bribery or other high crimes and 
misdemeanors. Applying that standard, this Congress has refused to 
remove judges not because they agreed with their actions--every judge 
whose case was brought before Members of this esteemed body was worthy 
of condemnation, they had few friends--but this body drew a distinction 
between judges who have done wrong and judges who committed removable 
offenses.
  I would like to tell you about the man who is on trial today, G. 
Thomas Porteous, Jr. He has spent virtually his entire life as a public 
servant. He served as an assistant district attorney, a State judge, 
and then a Federal judge. He served a total of 26 years, the past 16 as 
a Federal judge. When asked, all the witnesses in this case, without 
exception, described him as one of the best judges of Louisiana. As I 
will discuss later, however, his skills as a judge do not excuse his 
failings as a person. To the contrary, he has not contested many of the 
facts in this case and ultimately accepted severe discipline for the 
poor decisions he has made. He is here for you to judge now, to judge 
him, but he is not the caricature that has been described by the House.
  Indeed, I don't know how the man described by the House avoided a 
criminal charge. After all, the Department of Justice got waivers to 
look into all these crimes. They investigated him and many other judges 
with ``wrinkled robes.'' When I was sitting here, I was thinking: My 
Lord, how on Earth could he avoid a criminal charge? The reason is 
because in the Department of Justice are professionals. They look for 
crimes, and they didn't find any crime that could be proven at trial; 
any crime, great or small, against this judge.
  His son, Timothy, in the hearing, expressed the toll this has cost 
him and his family, ranging from the death of his wife, loss of his 
home in Katrina. One way or the other, this man is going to come to 
closure now. He will either be convicted or he will retire in a matter 
of months as he has already promised. What is clear, either way, Thomas 
Porteous will not return to the bench.
  He has, however, remained silent for many months as newspapers and 
commentators have said grossly false things about his case and about 
his character. He waited for this moment for his defense to be 
presented, as have so many defenses in his courtroom, for impartial 
judgment--and he gave impartial judgment. Even the House's own core 
witnesses said Judge Porteous gave them a fair hearing, gave everyone a 
fair hearing. You can disagree with actions he took, but you don't have 
to turn him into a grotesque caricature. He is not. He may have been 
many things in the eyes of others, but he was never corrupt, and he 
loved being a Federal judge and, despite his failings, he never 
compromised his court, and he never broke the oath he took as a Federal 
judge in October 1994. That may seem a precious distinction to some, 
but he is here to fight for that legacy. He has accepted his failings, 
but he will not accept that.
  This case is not, however, just about Thomas Porteous. All 
impeachments speak to all judges. This case presents Articles of 
Impeachment that are novel and they are dangerous. We discussed some of 
those issues this morning. Of course, the Constitution puts that 
incredible burden on you. It requires you to ignore the dictates of 
passion and wanton tempers described by John Adams. You must decide, 
after considering all the evidence, whether the actions that were taken 
in this case rise to the level of treason, bribery or other high crimes 
and misdemeanors.
  I would like to return to something Senator Durbin had asked about, 
which is the standard of proof. As we mentioned, in the past, many have 
cited ``beyond a reasonable doubt'' as the most obvious standard for 
impeachments because impeachment has many criminal terms that are 
incorporated and also many impeachments are crafted on articles taken 
directly from prior criminal cases.
  We also noted and stressed that the Members of this body have two 
determinations to make. First, you must find these facts occurred and, 
second, you must find that those facts that did occur to your 
satisfaction rise to the level of removable offense. It is the first 
part of that determination that is difficult in this case because, as 
we noted, this is the first modern impeachment that has come to this 
body without a prior trial. This judge has never been allowed review 
from a judge. He has never challenged the things that have been said 
against him. Indeed, most of the things you just heard wouldn't be 
allowed in a Federal court, and we challenge the factual accuracy, as 
you will see. But that is part of the value of having criminal charges 
brought, because usually when this body has looked at a case, it has 
been siphoned through that filter of process and fairness.
  Each Senator does have to establish what he or she will use as a 
standard of

[[Page 19037]]

proof. But I have to say, I do not agree with Mr. Schiff when he says 
it is just up to you, whatever you decide is enough. Where I disagree 
with Mr. Schiff from this morning is where we distinguish between 
``could'' and ``should.'' There is no question you can adopt any 
standard. The question is whether you should.
  Obviously, the Framers did not want people just to take an arbitrary 
gut check on facts, particularly when there has been no criminal trial. 
They expected something more from you. What is expected is that you 
apply some consistent, cognizable standard, and we have talked about 
that standard applied in the House, which is ``clear and convincing.'' 
This body, in the past, has talked about a strict standard.
  Indeed, Senator Arlen Specter, who was vice chair of the Senate 
impeachment trial, at an earlier time stated the following to his 
colleagues--and I commend it to you:

       Where you have a judge up for removal, the issue of 
     judicial independence requires a very strict standard. This 
     is not a question of whether you would confirm him if he were 
     before us today. It is not a question of whether we feel 
     comfortable in going before him. But it is a question of 
     whether we are going to oust him from office that comes into 
     play.

  What I believe Senator Specter was saying is that you do have an 
obligation to apply some objective standards because this is a legal 
proceeding. It might not be a criminal case, but you are sitting as the 
world's most unique jury and judges.
  In this case, the Fifth Circuit itself did not consider the 
allegations in article II and article IV. The reason is simple, as the 
five judges I mentioned earlier wrote:

       Congress lacks jurisdiction to impeach Judge Porteous for 
     any misconduct prior to his appointment as a Federal judge.

  Plain and simple. The Federal judges of the Fifth Circuit wrote a 
detailed, 49-page opinion on the evidence in this case. Those judges 
declared the following:

       This is not one of those rare and egregious cases 
     presenting the possibility of an impeachable offense against 
     the nation.

  They didn't approve of the decisions made, but they drew a line, and 
this fell far on the other side of an impeachable offense. Those 
judges, which included appellate and district judges, said:

       The evidence here does not support a finding that Judge 
     Porteous abused or violated the Federal constitutional 
     judicial power entrusted to him. Instead, the evidence shows 
     that in one case he allowed the appearance of serious 
     improprieties but that he did not commit an actual abuse, in 
     violation of constitutional power entrusted to him.

  These appearance controversies are routine in court. They are used 
here, however, as the basis for removal, to wipe away centuries of 
precedent. Perhaps for that reason the House managers are quoted in the 
media as encouraging the adoption of a new standard, to treat the 
impeachment process as merely an employment termination case. They 
would literally have this body adopt the standard Madison rejected, for 
judges simply to serve at the pleasure of the Senate, similar to at-
will employees.
  Unfortunately, this case proves one thing, the old military adage 
that if all you have is a hammer, every problem looks like a nail. It 
is not enough that Judge Porteous accepted sanctions from his court--
unprecedented sanctions. It is not enough that he announced his 
resignation in a matter of months from the bench. It is not enough that 
no one has ever been removed for pre-Federal conduct. Staff and 
resources of impeachment had been committed and the House demanded 
removal.
  Let's look at the basis for removal and let's turn to article I. In 
article I, the House impeached Judge Porteous on the theory that he 
deprived the public and litigants of his honest services, as we 
discussed this morning. We discussed the unique problem of the fact 
that it was crafted around a theory the Supreme Court rejected. It was 
a bad bet.
  You will notice that in the opening statements again today, both Mr. 
Schiff and Mr. Goodlatte kept on bringing up kickbacks again. I 
actually counted up to 20 and then I stopped. I pose the question to 
you. I don't know how many times you count the word ``kickbacks,'' but 
I ask you to look at articles and see how many times it is mentioned in 
the actual Articles of Impeachment, and that number would be zero. They 
allege a corrupt scheme and then came to you and said: You know what. 
This is going to be kickbacks.
  But the reason the Framers rejected corruption is precisely because 
of what is occurring right now in front of you in the well of the 
Senate. Corruption can mean anything. Mr. Schiff could have stood and 
said: You know what this is? This the mail fraud or, you know, actually 
this is conspiracy. He could have said anything that constitutes 
corruption and rewrite the article here--not fulfilling the will of the 
House but fulfilling whatever is the passing will of the managers of 
the House.
  That is a violation of the process the Framers created. In fact, we 
now hear five references to the signing of financial statements that 
were inaccurate. I suggest the Members look at the articles. How many 
times is that mentioned in the articles? Zero. But when you use 
``corruption'' as a term, you just go to the well of the Senate and 
say: That is what this is all about. What that does for defense 
attorneys like myself and my colleagues is, we just stand here and try 
to keep track of what it is, the crime we are supposed to be defending 
against. It could be anything under the Criminal Code. Anything under 
the Criminal Code can form corruption.
  Now it is financial records. That is why the House has the sole 
responsibility to articulate those articles. When Mr. Schiff says they 
have a lot of discretion, they do. When they use that discretion 
poorly, Articles of Impeachment get rejected. That is what this body 
has said repeatedly in history. You cannot bring to us articles that 
present any possible crime, a crime de jour. That is what you are 
seeing today.
  Notably, in article I, there is one fact that literally all of the 
House witnesses agree on: Judge Porteous was never bribed. But, more 
importantly, Judge Porteous was not bribable. Article I seeks to remove 
a judge based on a decision in a single case, and that decision was a 
single motion not to recuse himself in 16 years as a Federal judge.
  The Lifemark recusal motion was the first and only such motion Judge 
Porteous was faced with in three decades as a judge. Now, allow me, 
please, to cut to the chase, and to deal with one allegation in article 
I which deals with this single gift to Judge Porteous by his longtime 
friend, Jake Amato. That is, in my view, the most serious allegation in 
article I. It was a colossal mistake. But I need to correct the record. 
The House stood up and said, you know, nobody called this a wedding 
gift except defense counsel. That is news to me.
  In the hearing before the committee, Jake Amato described how he and 
the judge were on a boat on a fishing trip late at night drinking, and 
the judge got very emotional and was talking about the fact that he 
could not cover the expenses for his son Timothy's wedding. Amato was 
very close to Timothy. That was the context of this discussion.
  But, more importantly, I asked Amato: In fact, the only money you 
recall ever going to Judge Porteous was this wedding gift? Right?
  Amato's answer was: Correct.
  Now, Judge Porteous never disputed that gift. What he disputes is the 
implications of the gift. Judge Porteous accepted responsibility 
because it created an appearance of impropriety, and it did. Accepting 
a very severe punishment by the Fifth Circuit, he publicly apologized 
and gave his ``sincere apology and regret'' that his actions had 
brought the court to address this matter. He also later said he would, 
in fact, retire from the bench.
  Before delving into that gift, let me be clear what we are 
discussing. I think it is important to call things for what they are or 
in this case what they are not. This was not a bribe. All of the 
parties agree. This was not a bribe. It was not a kickback. They do not 
even

[[Page 19038]]

allege in article I this was a kickback. So what was it if it was not a 
bribe and it was not a kickback? It was a gift.
  Was it a dumb gift? Was it a gift he should not have accepted? You 
bet. But the Framers thought it was important to define things as they 
are. This is not a bribe and it is not a kickback. That is the key 
thing in looking at this impeachment.
  The appearance of impropriety is a standard raised in Federal courts. 
Not uncommonly, courts of appeals will disagree with trial judges who 
refuse to recuse themselves. Hundreds of judges are faced with recusal 
motions. Sometimes they make mistakes. Recusals are usually based upon 
past relationships, financial interests. They extend under the entire 
waterfront of conflicts. When a judge gets it wrong, usually that is 
it; it is just a reversal.
  Sometimes you will have a reprimand. Very rarely will you have any 
discipline at all. But consider the implications of accepting an 
appearance of impropriety as a standard of removal. This could be so 
easily used to strip our courts. An appearance of impropriety? Is that 
what we are going to substitute other high crimes and misdemeanors for, 
something that hundreds of judges are accused of. All of them would be 
capable to be brought before this body.
  We talked a lot about this Lifemark case. I must tell you, it is 
exceedingly complex as a commercial case. It is between a subsidiary of 
a giant corporation called Tenet Healthcare or Lifemark and a family of 
pharmacists from Louisiana. I will tell you, I see no need to delve 
into the specifics, which I think you would be happy to know. It is 
sufficient to say this was a long running dispute between these two 
parties.
  Lifemark was accused of delaying the case at any cost. It bounced 
from judge to judge and ultimately was assigned to over a dozen judges, 
one dozen in 3 years. That is the Lifemark case. Then, in 1996, it was 
randomly assigned to Judge Porteous. Defense witnesses stated, when 
asked, that Judge Porteous had a reputation for moving cases to 
verdict. He was a judge from Gretna. He was a State judge. He was a 
lawyer's judge. They tended to get cases done, and when he looked at 
this docket and saw a dozen judges in and out of this case and no 
trial, he promptly announced to the parties: I am the last judge you 
are going to see in this case. We are going to try this case.
  I want to emphasize something. He said that to the parties before any 
friends were lawyers in this case, before anyone he had a friendship 
with was counsel in the case.
  He said: I will be the last judge in this case, and we are going to 
go to trial.
  So he was. Seven district court judges, three magistrates, and he 
ended that. They went to trial.
  When he said that, lead counsel for Lifemark, Joe Mole, wanted to 
have him recused and to go to get another judge. He filed a motion to 
recuse, and he cited the fact that Judge Porteous was close friends 
with Jake Amato and Lenny Levenson. And indeed he was.
  What we heard in testimony from witnesses is in Gretna, a very small 
town, like many small towns in which lawyers practice, judges preside 
in, most judges know the attorneys in their courtroom. If judges had to 
recuse themselves because they knew a lawyer in the courtroom, there 
would be no cases in these courts. These are small communities.
  In Gretna, judges did not recuse themselves. In fact, our witnesses--
actually, not our witnesses. Let me correct that. The House's witnesses 
said they had never heard of a judge recusing themselves in Gretna 
because they could not. That was the tradition that Judge Porteous came 
from, and many judges agree with that--that as long as you acknowledge 
you have a relationship, the relationship is not being hidden, you do 
not have to recuse yourself.
  He was friends with Amato and Creely and Don Gardner. I will be 
returning to Mr. Gardner in a second. He was friends with Amato and 
Creely since the 1970s. Both Amato and Creely said they were best 
friends. They practiced law together. They hunted and fished together. 
They knew each other's families.
  Timothy testified they were known as Uncle Jake and Uncle Bob. Creely 
taught him how to fish; Amato taught him how to cook. They were close 
friends. So was Don Gardner. In fact, Gardner was even closer. Gardner 
asked Porteous to be the godfather to one of his daughters.
  Now, with this uncontested background, I would like to reexamine 
article I. First, the House asserts that Judge Porteous failed to 
disclose while he was a State judge that he engaged in a ``corrupt'' 
scheme with these attorneys. This is, of course, predicated on the fact 
that there is a corrupt scheme.
  The problem with the House's case is the House's own witnesses denied 
the scheme. Both at trial and in a Senate deposition, Bob Creely 
expressly disavowed--expressly disavowed--that he had an agreement with 
Judge Porteous where he received curatorships in exchange for loans or 
gifts. Instead, Creely was adamant that there was no relationship 
between the gifts and the curatorships.
  He said: I gave him gifts because we were friends. And he said: I 
gave him gifts before I ever got curatorships. Not only that, but he 
said he did not like the curatorships. He said he told Porteous that. 
Creely was a very successful lawyer. These curatorships were bringing 
in a few hundred dollars here and there. He said he hated them because 
they were more trouble than they were worth.
  It is true, the House has portrayed Judge Porteous, frankly, as 
something of a moocher. I mean, that, I guess, was Congressman 
Goodlatte's point when he pointed out with great emotion to you, Judge 
Porteous went to a lot of lunches with these men and he did not pay for 
his share of the lunches; he just paid for some of them.
  Let me ask you, did you ever think you would be sitting on the floor 
of the Senate trying to decide whether that is an impeachable offense, 
being a moocher? He paid for a few lunches; he did not pay for most of 
them. The witnesses said judges in Gretna routinely had lunches paid 
for them. In fact, the House's own witnesses said they could not 
remember--actually, that is not true; they could remember one judge on 
one occasion buying her own lunch. That is the record in this case.
  So Creely is the guy in the House report who is the linchpin between 
this alleged scheme, between curatorships, and these gifts. Only 
problem? Creely came to the Senate and said: There was no agreement. He 
said he never gave any money to Judge Porteous as a bribe, never gave 
him a kickback, never expected to receive anything in return for the 
gifts. They were just friends. Not only that, he said he would have 
given those gifts without question regardless of the curatorships.
  To drive the point further, he said Judge Porteous never asked him 
for any percentage or return from the curatorships. Not only that, but 
then the House's own witnesses said: By the way, all the judges in 
Gretna give curatorships to friends and acquaintances--all of them.
  This has been discussed in Louisiana. But the Louisiana officials 
have decided they would allow that. Judges routinely would give 
curatorships to former partners, friends, acquaintances. It has been 
reviewed. We heard from the only expert in this case on Louisiana 
ethics, and that was Professor Ciolino, Dane Ciolino. He told the 
Senate: This is perfectly ethical under the rules. It is well known. It 
is a practice that has existed for a long time, and it still exists 
today. This does not mean that every judge in Louisiana is corrupt. It 
is just they do not view this as corruption.
  Witnesses said that Judge Porteous gave curatorships to new 
attorneys, and he gave curatorships to Creely. The House never went and 
actually found the records of all the curatorships. You will notice, 
there is no discussion of any other curatorships. They had the ability. 
They could have come to you and said: Here are all the curatorships 
that were issued during this period of time. Here are the curatorships 
that went to Creely--or not. They did not do that.

[[Page 19039]]

  But even if 100 percent of the curatorships went to his friends, it 
was perfectly ethical under the rules. The only testimony that the 
House was able to present attempting to establish a connection between 
the curatorships and gifts was Jake Amato. What the problem was is 
Creely saying there was not any relationship. That is a problem because 
the House report said Creely said that. So they went and got Amato, and 
Amato said on one occasion many years ago he remembers Creely saying 
there was a relationship. But the House was not deterred by the fact 
that Amato was giving this testimony with Creely in Washington denying 
he ever said that. But that did not deter the House. They just went 
ahead and had Amato say what they wanted Creely to say.
  Then Amato said these figures that are being thrown around by the 
House were not figures he came up with. He said they were what he 
referred to as guesstimates--guesstimates--of the gifts and their 
relationship to the curatorships.
  Now, Amato said actually the number you have heard here today did not 
come from him, did not come from Creely. In fact, they denied they 
could recollect. There is no record to establish this conclusively. 
Amato said the number actually came from FBI Agent Horner, who came up 
with an estimate of total gifts and just assumed--just assumed--that 
Porteous must have received half of it. They started pressing them to 
say: Wouldn't that be accurate?
  So there is a Madisonian nightmare for you. The government gets 
guesstimates from witnesses, based on the figure that was just 
extracted by one of the investigators without documentary proof.
  The second factual allegation in this article is that the judge 
should be removed for intentional misleading statements at the recusal 
hearing. I can simply end this by encouraging you: Please read the 
recusal hearing. It is not very long. Reach your own conclusions. Don't 
listen to me. Don't listen to the House. I think it speaks for itself. 
You will see that Judge Porteous actually gives them a hearing. A lot 
of judges don't. They just deny it. Instead, he gave them a full 
hearing, told them he understood why he was bringing this issue, 
acknowledged he had a relationship with these lawyers, and then he went 
and said: Tell me what I need to do to make sure you can appeal me 
because you have a right to appeal me, and he stayed the case to allow 
an appeal. Most judges just won't do that.
  He did not say in detail what the relationship was. He understood 
that Mole was going to appeal. One thing he did want to correct on the 
record is that Mole said, incorrectly, that he had received campaign 
contributions from these individuals. He said that is just not true, 
and he corrected it on the record. He never denied the relationship. 
From his perspective, having a relationship, a friendship, particularly 
from his time in Gretna, was not a problem. It was just not a recusable 
issue. So he left it at that.
  The third allegation is that Judge Porteous should be removed from 
office because he denied Lifemark's recusal motion. That is the most 
dangerous allegation in article I because that would remove a judge for 
the substance of his decision--in this case, a recusal motion. Can you 
imagine if you start to remove judges because you disagree with their 
recusal decisions? Judges are constantly appealed on recusal decisions. 
Sometimes they are upheld; sometimes they are not. But when you start 
to remove judges because you disagree with their conclusion, even 
though many judges share this view of recusal, then you open the 
Federal bench to virtually unlimited manipulation.
  The evidentiary hearing in the Senate I do not want to tell you was a 
total bust. It was not. For those of you who were looking for a 
conspiracy, we found one, and it came out in live testimony--a scheme, 
a very corrupt scheme--but in that scheme Judge Porteous was the 
subject, not the beneficiary. The hearing saw extraordinary testimony 
from Mr. Mole, whom you heard the House repeatedly refer to as this 
paragon of a witness.
  Mr. Mole brought this issue that he should recuse himself, and Mr. 
Mole was shocked he did not. In fact, I think Mr. Goodlatte said Mr. 
Mole had no alternative but to proceed the way he did. But the House 
Members did not mention how Mole proceeded. After he lost the recusal 
motion, Mole decided he had to get this judge off the case. He was not 
going to have this West Bank judge rule in this case of Lifemark. It 
was going to be bounced to get another judge--a 14th reassignment of 
the case--if Mole had anything to do about it.
  So he went and he talked to a guy by the name of Tom Wilkinson. Now, 
Tom Wilkinson is the brother of the magistrate who was assigned to the 
Lifemark case. So he went to the brother of the magistrate, and this is 
the former Jefferson Parish attorney. He was known as someone who could 
solve problems like this. He was known as the go-to guy to fix a 
problem with a judge you did not want. Wilkinson is now reportedly 
under investigation for corruption in Louisiana.
  So Mole met with him, and then Wilkinson got Mole to meet with one of 
Judge Porteous's closest friends, Don Gardner. He went to Gardner and 
offered him an extraordinary contract, which we have put in the Record. 
That contract promised Mole $100,000 if he joined the case and offered 
him another $100,000 if he could get Porteous to recuse himself--
$200,000. But that was not all. The contract actually said: By the way, 
once Porteous is gone, you are gone. So if you get him to recuse 
himself, I will give you $200,000 and you go away and we can then 
merrily go on bouncing this case through the court system.
  The problem with this scheme by Mr. Mole is that it did not work 
because Don Gardner said: You do not want to go to Tom Porteous. You do 
not want me to go to Tom Porteous and tell him to recuse himself 
because he will react very negatively, and he refused to go--this is 
his own testimony--refused to go to Porteous to ask for his recusal.
  Ultimately, the judge's decision cost his closest friend $200,000. 
Mole himself admitted he had never seen a contract like the one he 
wrote, and witnesses testifying said they were shocked to learn of a 
contract where someone actually put a bounty on a Federal judge and 
offered $200,000 if you could get him off the case.
  Nevertheless, when Gardner lost that case, he said the judge gave him 
a fair hearing. He said: Look, this judge is just not bribeable. He 
gave us a fair hearing. He disagreed with us, and we lost.
  By the way, this is not mentioned by the House: Creely also practiced 
before the judge. By the way, he was not the counsel in Lifemark. But 
Creely actually did have a couple of cases in front of the judge, and 
the judge ruled against him and cost him a huge amount of money. In one 
case where he lost a great deal of money, Creely actually took his best 
friend on appeal and got him reversed. But his friendship did not stop 
the judge in one of Creely's biggest cases from ruling against him. He 
did not feel the need to recuse in those cases, and it did not 
influence his decision.
  The article also talks about ``things of value,'' another general 
term. These are small, common gifts that both Creely and Amato admitted 
they gave to Porteous and said were very common in Gretna, as in many 
small towns. Yes, they had lunch together. They had lunch together for 
their whole 30-year relationship. A few of those lunches did continue 
while Lifemark was pending in front of the judge. The judge paid for an 
occasional meal, but Representative Goodlatte is absolutely correct. He 
did not pay for enough meals. The House did not contest the only ethics 
expert in this case who said those lunches are permitted under State 
law, and they still are permitted today. Back then, they had the same 
rule the Senate had. Back then, the Senate allowed Senators to be 
bought lunches, not because it invited corruption. A lot of Senators 
did not view it as a source of corruption. Neither did the people of 
Louisiana when it came to lunches being bought for judges. It was just 
a courtesy.

[[Page 19040]]

  There has been talk about Creely attending Tom Porteous's bachelor 
party in May 1999. I am simply going to note, if you look at the 
testimony, Creely said he was friends with Timothy. Timothy is a 
lawyer. He was very close to Timothy, and he had great love for 
Timothy. He expressed that in a hearing. He went to his friend's 
wedding. By the way, when he bought the lunch at his table, Porteous 
was not at the table, and he threw in with the other attorneys at that 
time.
  Now, as I mentioned earlier, the wedding gift is, frankly, the most 
serious problem. It occurred 3 years after the recusal hearing. I am 
not trying to excuse it, but I do wish you would keep that in mind 
because these dates do get blurred. It was 3 years after the recusal 
hearing when this wedding gift was handed over.
  And, yes, he went on this fishing trip. It was a very emotional 
thing. He was having trouble paying for his son's wedding, and it was a 
huge mistake. The judge admitted it. It was not a bribe, not a 
kickback; it was a gift. It was dumb to be offered, dumb to be 
accepted. But both Creely and Amato made clear it was not a bribe or a 
kickback.
  In fact, Jake Amato testified he ``felt [Judge Porteous] was always 
going to do the right thing'' in the case. He did not see any 
connection in terms of influencing the outcome of the case.
  Now, one question the House has never been able to answer--one which 
maybe the Senate would want to put to the House--that is, if Judge 
Porteous could be influenced for $2,000 and for some other ``small 
things of value,'' as the House alleges, why did he not just recuse 
himself so his close friend could collect $200,000? Why didn't he rule 
for Creely in those other cases? He had two friends in the case of 
Lifemark. He cost one $200,000. Why didn't he accept money like those 
other judges who were nailed in Wrinkled Robe?
  The appearance of impropriety is a dangerous choice for this body to 
import in the impeachment standards. Professor Ciolino--this is not 
contradicted by the House--has said that State bars have continued to 
move away from the appearance of impropriety because they view it as a 
standard that is virtually meaningless. It basically says: Don't be 
bad. That is almost a direct quote from what Professor Ciolino said. He 
is a big critic of that standard. He said State bars are moving away 
from it at the time the House is asking you to adopt it as an 
impeachment standard.
  Let's turn to article II.
  Article II, we have already discussed, is the article that is the 
pre-Federal conduct allegation. I will leave that to your discretion. 
Since you have not ruled on the motion, I will try to address a few of 
the facts in this case.
  But if the Senate agrees with the defense that a judge cannot be 
removed for pre-Federal conduct, then most of article II is gone. There 
is virtually nothing there in terms of Federal conduct. The evidence 
that is supported in article II in terms of Federal conduct is six 
lunches--six lunches--that took place over 16 years. So let me make 
sure we understand that. The evidence in article II of Federal conduct 
that you can remove a judge for is six lunches.
  I should note that Judge Porteous attended several of these lunches, 
but there is no record that he attended all the lunches, so the six 
might be a high number. You see, the House had no record that he 
actually attended some of these lunches, but somebody at the lunch had 
Absolut vodka. I kid you not. So what the House is saying is that 
because Judge Porteous drank Absolut vodka, you should just assume he 
was at those lunches and use that as part of the evidence to remove a 
Federal judge. I am not overstating that.
  Asked the committee just to take judicial notice that Judge Porteous 
is not the only human being in Louisiana who drinks vodka or even 
Absolut vodka. What they are inviting you to do again is to remove a 
judge on pure speculation.
  By the way, the value of these lunches over 16 years was also not 
mentioned. They are less than $250 over 16 years. The individual meals 
benefited Judge Porteous--the average was $29.
  As I mentioned, experts testified in this case, and were not 
contradicted, that judges were allowed and they are still allowed to 
have lunches purchased for them in this respect. The most the House 
could come up with is that by attending these lunches, Judge Porteous 
``brought strength to the table''--that is one of the statements of 
their witness, Louis Marcotte, that he ``brought strength to the 
table''--and that is enough. Imagine if that was enough. If you are 
permitted to have lunches bought for you but someone at the lunch 
benefited from your being present, a third party, because you ``brought 
strength to the table,'' that would be enough for a charge of 
impeachment under this approach. The record shows that Senator John 
Breaux went to some of these lunches with the Marcottes. Does the House 
suggest that because Senator Breaux went to a lunch, he should be 
expelled from this body? That would be ridiculous.
  Virtually every witness called by the House and the defense testified 
that judges dealt exclusively with the Marcottes as bail bondsmen. You 
heard the House say bail bondsmen would often deal individually with 
the judges. I just need to correct that. There weren't bail bondsmen--
plural--at any practical level. This is a small town, and the Marcottes 
were it. The witnesses testified that the Marcottes controlled over 90 
percent of the bonds. They were the bail bondsmen for Gretna. It is not 
a huge town. So, by the way, if you think about that, it means that 
every judge who signed a bond was almost certainly signing it for the 
Marcottes because they were the only bail bondsmen on a practical 
level.
  Now, here is the thing you might find confusing. At the evidentiary 
hearing, the House conceded not only that they could not prove a 
linkage on these bonds but that they did not specifically allege a 
relationship between the size of the bonds and this relationship with 
the Marcottes. The House stated:

       The House does not allege that Judge Porteous set any 
     particular bond too high or too low.

  So all of the references just now about setting things too high and 
too low, how they benefited the bail bondsmen, the House stated that it 
was not alleging that they set these things too high or too low. So 
once again we find that the articles are being redesigned here in the 
well of the Senate irrespective of what was previously said by the 
House.
  The House does little beyond noting that Judge Porteous often 
approved bond amounts by the Marcottes, and, as detailed in our brief, 
the House's own witnesses demolish that allegation. The amount of a 
bond is set to reflect the assets of the defendant. The Senate staff 
summed this up in its own report in front of you on page 18: In many 
cases, the highest bond a defendant can afford may also be the socially 
optimum level so as to eliminate unnecessary detention while providing 
maximum incentive for the defendant to appear. That is the point of 
bond. You set it high enough that they are going to come back to court. 
There was very good reason.
  The witnesses in this case testified that Judge Porteous was a 
national advocate for the use of bonds, and he connected the use of 
bonds to overcrowded systems. Gretna was subject to a series of Federal 
court orders that were releasing people, dangerous people, from their 
jails. Judge Porteous spoke nationally on the need for judges to use 
bonds, and he was correct. As we submitted in the record, studies have 
proven him correct, that if you get a bond on an individual, the 
chances that they will return and not recidivate are much, much higher. 
And Judge Porteous did speak to every judge he could find to say: Start 
issuing bonds because people are not showing up. Get them under a bond 
and they will.
  You also saw that the House suggested somehow the Marcottes got 
special treatment from the judge. The fact is, they were the only bail 
bondsmen on a practical basis, so if you wanted to get bonds, you got 
bonds with the Marcottes. But, by the way, his secretary, Rhonda Danos, 
testified that the judge often told her not to let the Marcottes into 
his office. She said that on occasion he would say not to let

[[Page 19041]]

them in. And she said they were not given any special treatment in 
access to the judge. She said Judge Porteous is a very popular judge 
and lawyers would gather in his office.
  Let's turn very quickly to these two cases. I am afraid I am running 
short on time, so I will have to ask you or your staff to look at our 
position in our filing.
  I want to note that on the Duhon expungement that has suddenly 
resurrected like a Phoenix on the floor of the Senate--we thought it 
was dead. The reason we thought it was dead is because it had been 
downgraded in the trial, because of testimony from witnesses, where the 
House simply referred to it as noteworthy. By the end of the trial, it 
had gone from a matter for removal to a noteworthy case. The reason is 
that witnesses testified that this was a routine administrative 
process. The witnesses showed--and there were no witnesses called by 
the House who were experts in this area. We called witnesses to talk 
about these types of setasides and expungements, and those witnesses 
said this was perfectly ethical and appropriate. Not only that, in the 
Duhon matter, Judge Porteous was following the lead of another judge. 
That was never revealed to the House. We revealed it in the hearing. It 
turns out that a prior judge had already taken steps in the case.
  Louis Marcotte testified that he wasn't even sure he asked Judge 
Porteous for assistance on the Duhon matter. Nevertheless, the managers 
included the allegation in the article.
  As for the Wallace setaside, the House could not call any expert to 
testify that it was improper, and we did call people who said it was 
perfectly proper. It was both legal and appropriate under Louisiana 
law.
  Now, I want to address one thing about the Wallace setaside. The 
government, once again, is coming here--the House is coming here and 
saying: You know, he did this so you wouldn't know about it. He waited 
to take actions in the Wallace case after he was confirmed. And what do 
you think of that?
  Well, I suggest what you think of that is it is not true. As we said 
here, this is why we were surprised to find it being mentioned on the 
floor of the Senate today. It is just not true. The judge held a 
hearing before confirmation and stated in the hearing: I intend to set 
aside this conviction. That is a pretty weird way to hide something. 
Before confirmation, he said: I am going to do this, and I need you to 
put a motion together. Why? Because it was the right thing to do. It is 
routine in this area. These types of things are very routine. What the 
attorney said is they just walk around with these forms in their 
briefcases.
  Do you know what Mr. Wallace said? He said that Judge Porteous was a 
judge who was known as someone who would give someone a second chance, 
and he gave Wallace a second chance, and Wallace went on to become a 
minister and he is now a respected member of his community.
  Now, a lot of this turns, of course, on Louis Marcotte, who also, by 
the way, admitted at trial--this is Louis Marcotte--he explained why he 
lied on one occasion, and he simply said: Well, I wouldn't have any 
reason to tell the truth. That is Louis Marcotte. Indeed, one of the 
witnesses told the committee that the House staff told them that the 
reason he was being called is because people wouldn't believe Louis 
Marcotte, that he lacked credibility.
  Now, the Marcottes ultimately said that lunches would occur sometimes 
once a month; car repairs that were discussed here lasted about 6 to 8 
months and consisted of a few minor repairs. We suggest you simply look 
at the testimony. You have to look at the testimony because there are 
not any documents of exactly what repairs were done. It is all 
testimonial. So this isn't a debate over the standard of proof; there 
is no proof.
  Finally, the House has continually referred to other State judges who 
were convicted of crimes, including Judge Green and Judge Bodenheimer. 
I simply want to note that Judge Porteous, of course, never accepted 
cash or campaign contributions from the Marcottes. That put him in a 
small group, from what I can see. They gave as much as ten grand to 
judges, including judges who are still on the bench. They never gave 
Judge Porteous any cash. Why? They handed out cash to other judges. If 
he was so corrupt, if he was this caricature the House makes him out to 
be, why didn't he take the cash and run?
  Judge Porteous, of course, was never accused of a crime, let alone 
convicted, and those men, Judge Green and Judge Bodenheimer--you just 
heard the House say: Look at these people; judge Judge Porteous by 
their conduct. They were convicted of mail fraud and planting evidence 
on a business rival.
  Article II is a raw attempt to remove a judge for conduct before he 
was a judge. Article II, I submit to you, is nothing more than what 
Macbeth described as a ``tale full of sound and fury, signifying 
nothing.''
  Article III is the only article that does not rely on pre-Federal 
conduct. What it relies on are a series of errors made in a bankruptcy 
filing that the judge made with his wife Carmella. I am not going to 
dwell on the intricacies of the Bankruptcy Code, which may be a relief 
to many. What the record establishes is not some criminal mastermind 
manipulating the Bankruptcy Code; it basically shows people who had bad 
records, little understanding of bankruptcy, which, by the way, is 
usually the type of people who go bankrupt. They sought a bankruptcy 
attorney of well-known reputation, Mr. Claude Lightfoot, and they were 
given bad legal advice.
  But one thing the House doesn't mention today and did not mention to 
House Members when they got the unanimous vote: Judge Porteous paid 
more in bankruptcy than the average person in this country. He 
succeeded in bankruptcy. They filed a chapter 13 bankruptcy in 2001, 
and they paid $57,000 to the trustee, $52,000 repaid to their 
creditors. The only difference is that he was scrutinized a lot more. 
He had two bankruptcy judges, a chapter 13 trustee, and the Federal 
Bureau of Investigation and the Department of Justice.
  By the way, I mention the FBI and DOJ because they raised these 
issues you just heard about while the case was pending. They didn't 
come into this case after it was done; they actually went to see the 
trustee and raised these issues with the trustee, and the trustee said 
he didn't feel any action would be appropriate, necessary. So he found 
that these actions actually wouldn't warrant an administrative action 
by a bankruptcy trustee, but the House managers would say that is still 
enough to remove a Federal judge under the impeachment standard.
  By the way, after the DOJ and the FBI went to the bankruptcy trustee 
and said, look at all these things, and the trustees said, I don't 
think this really warrants any action on my part, the DOJ and FBI 
didn't take action either. All the sinister stuff about how they found 
this, it was found before the case was closed.
  None of Judge Porteous's creditors ever filed a complaint or an 
objection. That was also not mentioned in the case.
  When they retained Mr. Lightfoot, they had never met him before, and 
it is true that Mr. Lightfoot did suggest that they file with the fake 
name ``Ortous'' instead of ``Porteous.'' That was a dumb mistake. To 
his credit, Mr. Lightfoot said: This was my idea. He said: I was trying 
to protect him.
  Particularly, Judge Porteous's wife was upset about the embarrassment 
of the bankruptcy and the fact that, at that time, the Times Picayune 
published everyone's names in bankruptcy in the paper, and she was very 
embarrassed. And he thought he would help that by using ``Ortous,'' and 
then that was just for the first filing, correcting it so that no 
creditor would actually get that document or get that false name, and 
he did. Roughly 10 to 12 days later, he corrected it, and no creditor 
did get the misleading information.
  By the way, in that first filing, he used the information, including 
the Social Security number, which is the primary way you track people, 
so he didn't falsify that.
  It was a dumb mistake, but it was a mistake done by Mr. Lightfoot, at 
his

[[Page 19042]]

suggestion, because he thought he could avoid embarrassment.
  He said he regrets this. But it was his idea. In the fifth circuit, 
you are allowed to follow the advice of counsel. Should Judge Porteous 
have followed this advice? No. He should have known better. This is one 
of those things where yielding to temptation at a time like this was a 
colossal mistake.
  But when the trustee was presented with this, with the FBI and the 
DOJ coming to his office, he said that he felt this was no harm, no 
foul. Why? Because nobody was misled, and because they changed it. No 
creditors were misled. He finished his bankruptcy filing. He did what 
most people don't do, he succeeded. He paid his creditors.
  Henry Hildebrand, who is a standing chapter 13 trustee in Tennessee, 
said that he has seen bankruptcy petitions filed with incorrect names. 
He has seen it. He said that what you do is you require them to correct 
it, and you give notice to the parties. In this case, they didn't have 
to do that because the creditors already got the correct information.
  Former U.S. bankruptcy Judge Ronald Barliant said that on the basis 
of the facts of that use of the pseudonym Ortous, he would not find any 
intent to commit fraud or otherwise impair the bankruptcy. He didn't 
see it. Neither did the trustee, and neither did the FBI or the DOJ, to 
the extent that they didn't charge it.
  The House further alleged other errors and inaccuracies in the 
bankruptcy schedule as part of this dark and sinister plan to co-opt 
the bankruptcy system. Two empirical studies that were introduced at 
trial show that 95 to 99 percent of bankruptcy cases contain certain 
errors and inaccuracies. In fact, we had testimony from Mr. Hildebrand, 
who says he actually didn't believe that he had ever seen, in his 28 
years as a chapter 13 trustee, a perfect filing.
  Bankruptcy law professor Rafael Pardo also said that it has never 
been the standard to be perfect, that requiring these things to be 
perfect is unrealistic and unworkable, and that people make errors. The 
people who are filing bankruptcy are people who couldn't handle their 
records before. It is not surprising when they file bankruptcy and they 
have errors.
  I want to talk quickly about these errors, where the judge is 
alleged, in the summer of 2000, to have given Mr. Lightfoot his May of 
2000 pay stub, but he did not later supply an updated pay stub. What 
they left out was that the difference between those two pay stubs was 
$173.99 a month. Trustee Beaulieu said that it was such a small amount, 
and it ``would not [have] substantially increased the percentage paid 
to unsecured creditors.''
  Mr. Lightfoot's file shows that Judge Porteous actually told his 
bankruptcy counsel that his net income was higher than listed on the 
pay stub, but that Mr. Lightfoot was using the information on the stale 
pay stub. He testified at trial that he failed to ask the Porteouses 
for the updated pay stub prior to preparing the bankruptcy filings. But 
now that is going to be part of a basis for the removal of a Federal 
judge.
  Let's talk about that Bank One account. On that one, Mr. Lightfoot 
testified that he simply asked the Porteouses to approximate how much 
money they had in their account. The bankruptcy lawyer said, ``Give me 
a ballpark figure,'' and they did. There was no sinister plan here. How 
about the Fidelity Homesteads Association checking account just 
referred to? That account was omitted inadvertently. Judge Porteous 
testified before the fifth circuit that he thought he told Mr. 
Lightfoot there was this Fidelity account. However, it is undisputed 
that the value of that account was $283.42. That was the account that 
was mentioned here.
  There is also reference to the fact that it said that occurred during 
the bankruptcy. There is no bar to incurring such debt by statute 
during bankruptcy. There is no bar to it.
  Yes, the House made a great deal out of the fact that the Porteouses 
gambled. Gambling is legal. It was a problem. For Judge Porteous, it 
was an addiction. He dealt with it in a public way that few of us would 
want to deal with. He dealt with his drinking and addiction problems by 
going to seek professional help. Like many of us, he didn't do that 
until his life exploded on him. He went and got treatment for 
depression. Should he have done it before? Yes. But gambling is not 
unlawful.
  More important, what was described to you about these markers is what 
the judges, Judge Dennis and his colleagues, objected to when they said 
that, ``Under Louisiana commercial law, markers are considered `checks' 
as defined by Louisiana statute.''
  Markers are uncashed checks, not debts for purposes of bankruptcy.
  At trial, an FBI agent called by the House confirmed this 
interpretation--that a marker was a ``temporary check.'' In other 
words, these judges, who are not part of the sinister plan to undermine 
the bankruptcy laws of our country, all said they agreed with the 
interpretation that this is not debt. Some people might disagree with 
their interpretation. But at most, it is equipoise. They didn't believe 
it constitutes that, period. Should they have gambled in their 
bankruptcy? Of course not. That is not a failure as a judge. That was a 
personal problem that the judge overcame.
  Let's move on to the last article. The fourth Article of Impeachment 
is the deliberate attempt by the House to resuscitate the pre-Federal 
charges, by trying to recycle them through the confirmation process. By 
the way, Senator Leahy had asked about perjury in the confirmation 
process. I said that I do believe that perjury is a removable offense. 
Mr. Schiff stood up and said: Aha, then you do believe in the pre-
Federal basis for removal. The answer is no. The confirmation process 
is part of the Federal process. It is part of your service as a judge. 
It is not pre-Federal in terms of what we are discussing. It is 
directly related to your being put on the Federal bench.
  Obviously, if you acquit Judge Porteous on articles I and II, you 
have to acquit on IV, because that is basically article I and II 
recycled--the confirmation issue.
  There are three questions that the House focuses on. I want to read 
you that question from the SF-86: ``Is there anything in your personal 
life that could be used by someone to coerce or blackmail you? Is there 
anything in your life that could cause you an embarrassment to you or 
the President if publicly known?'' That is just one; it is a compound 
question.
  I want you to put yourself in the shoes of Judge Porteous. He just 
answered 200 questions, and 100 of his closest friends had been 
interviewed, along with family, neighbors, and colleagues. This was the 
final question. I would like you to ask yourself how you would answer 
that question. Is there anything in your life someone could say that 
could be used to coerce or blackmail you? Would you answer that yes, 
would you answer it no, because you know you wouldn't be coerced and 
blackmailed? I am sure all of us have things we are not proud of, or 
that we don't want to be made public. That is the case with Judge 
Porteous. But we heard uncontradicted testimony that if you just now 
said no to that question, you would not be alone. The FBI agent who 
testified said that in his 25 years in the FBI, he had never seen 
anyone answer yes to that question.
  We brought in a leading expert on the confirmation process. He said 
that he was unaware of a single person ever saying yes to that 
question. It is so ambiguous that most people just say no. People have 
to sit there and wonder what would be embarrassing to President 
Clinton, and you are supposed to say, well, I can think of this or 
that. Maybe that would embarrass President Clinton. They don't say, 
look, I don't think my life is embarrassing to people.
  These lunches that they keep citing were in public places, not in a 
house or underneath a car; they were held in open restaurants. He never 
tried to hide them; they were legal. There was actually a table set 
aside by the restaurant for lawyers and judges. The witnesses testified 
they had never seen any judge but one ever pay for those meals.

[[Page 19043]]

  By the way, this was raised about Porteous's 2000 tax refund check. 
That was raised regarding things he was trying to hide. I believe the 
expression was, you know, that the 2000 refund check went right into 
his pocket. You know what. It is supposed to. Refund checks are not 
part of a bankruptcy filing in cases such as this. They always go into 
your pocket.
  What they are asking you to do is to assume that Judge Porteous was 
embarrassed, and then remove him for that. Let me state that again. He 
was asked that question if anything would embarrass himself or the 
President, and they want you to say I think he was embarrassed and then 
you can remove a Federal judge on that basis--even though he didn't 
hide these things.
  They keep on talking about these relationships. They are public 
relationships. Does that track with the constitutional standard, in 
your view? It is now down to embarrassment. He didn't hide the Creely 
relationship because Creely said there was no relationship of gifts to 
curatorships. Why would he hide that? Creely said it never happened. 
Once again, they are asking you to assume that and say the assumed 
facts must have embarrassed him, and therefore his answer to a compound 
question of ``no'' must be enough to remove him. This is not new.
  All of you have been involved in the confirmation process. There are 
plenty of circumstances where facts have come forward that were 
embarrassing to a nominee that were not revealed. We saw that Bernard 
Kerick, who was nominated to be a member of the Cabinet, was actually 
criminally charged for saying there was nothing that would be 
embarrassing. He said: Not to my knowledge. The prosecutor said: You 
know what, that is a lie; we found something that would be 
embarrassing. That went to a Federal court and the Federal court said: 
``Where a question is so vague as to be fundamentally ambiguous, it 
cannot be the predicate of a false statement, regardless of the answer 
given.''
  The court went on to say: ``Plainly, the meaning of the word 
embarrassing is open to interpretation and that it's hard to believe 
that a Federal prosecution would follow.''
  Here's my question: If it is hard to believe that a Federal 
prosecution would follow, how about an impeachment based on 
embarrassment? You cannot even use this in that Federal court. The 
judge cannot even base a charge on it. They are arguing you should now 
base the removal of a Federal judge on it. A judge in the third circuit 
was found to have lied in his confirmation hearing, but the third 
circuit said for discipline to be warranted, there had to be a showing 
of intent. The House didn't attempt to make that showing.
  U.S. District Court James Ware had told people that his brother had 
been shot and killed in a racially motivated incident in Alabama in 
1963. In 1997, when Ware was nominated to the ninth circuit, he listed 
family members, including Virgil Ware, who existed; it just wasn't his 
brother. A Ware had been killed, but it wasn't his brother. It was a 
lie. He was severely reprimanded by the court, and he should have been, 
but it is not an impeachable offense. He still sits on the district 
court in California. Also Hugo Black was mentioned.
  We have plenty examples in the record. The fact is that if you start 
to remove judges for embarrassment, there will be no end to it. You 
will have House Members lining up to this open door to bring forth 
things that should have been mentioned in confirmations by judges that 
they disliked--and not just judges, but Presidents, Vice Presidents, 
and Cabinet members--if that is the standard. If you read the 
newspapers, you will see what I mean. There are articles in the 
newspaper, the Washington Post, where you have Members of Congress 
starting to make their case for the impeachment of Supreme Court 
Justices Thomas, Roberts, Kagan, and Sotomayor.
  In fact, Congressman Peter Fazio said, ``They have opened the 
floodgates, and personally, I am investigating Articles of Impeachment 
against certain justices.''
  If that is the standard, a President would have to raise nominees 
hydroponically in the White House basement if they have any hopes of 
surviving on the bench. You cannot possibly, I hope, consider replacing 
the impeachment standards with the wrong answer on that embarrassment 
question in confirmation.
  Article IV is an open demand for Senators to engage in pure 
conjecture. If Senators can simply assume embarrassment to remove a 
nominee, there is no standard of proof, our day is over, and there is 
no standard of removal. They will serve at your pleasure, just as 
Madison feared. It is precisely what Adams worried about--uncertain 
wishes and imagination as a substitute for proof.
  Before I sit down and I rest this case in the defense--before my 
voice gives out--I want to conclude by addressing one thing about this 
case, and that is the fact that Judge Porteous didn't testify, as some 
of you may be wondering about that. The reason can be found in the 
fifth circuit testimony. When the fifth circuit sought to question 
Judge Porteous about the allegations in article I and article III, 
Judge Porteous took the stand and did not deny many of the factual 
allegations. Somehow the House keeps citing that as if that is a major, 
sinister thing; that he actually said, I am not contesting these facts. 
And you know what, the House seemed to make fun of the fact that he 
couldn't remember details about what occurred with the $2,000. What was 
the point of that?
  You had a judge who had, obviously, addictions. He had depression. He 
dealt with them. And when he showed up in the fifth circuit, his memory 
was not clear. But he didn't say that to say, and therefore these 
things didn't happen. He said the opposite. He said, if I were you, I 
wouldn't rely on my memory. If Creely and Amato were saying that, they 
are friends of mine. I don't think they lied. What is bad about that? 
He just is disagreeing with the implications of these things. So when 
they quote him and make fun of the fact that he tried to answer what 
happened with that money, he was doing his best. They seemed to leave 
out the fact that at the end he said, just assume it occurred and hold 
me to that standard. Ultimately, he accepted severe discipline from the 
fifth circuit for his poor decisions, and he announced that he will 
retire some months from today.
  Did he betray his office? No. Maybe he betrayed himself, maybe his 
family, but not his office. His failings were that of being a human 
being--a man who was overwhelmed by addiction, the death of his wife, 
and financial troubles. Did he help bring those on? Perhaps. Whatever 
Judge Porteous may appear to you during this period, he was and he is 
proud of his nearly 30 years of public service as judge, but he 
believes that is for others to judge--judge now. He didn't feel it was 
appropriate in the fifth circuit to be contesting things that his 
friends had remembered, and he also doesn't think it is appropriate for 
him to beg you to excuse any of his actions. He wants you to judge his 
actions. He believes he can be judged harshly and he was judged 
harshly. He tainted his own legacy.
  Judges are humans, and that humanity can make some of them the best 
of their generation. The life experiences of jurists such as Thurgood 
Marshall and Louis Brandeis made them towering symbols for lawyers and 
law students and the public. Others, such as Judge Porteous, that 
humanity showed frailties and weakness. Some of the men and women who 
don these robes have those frailties and weaknesses. This is going to 
happen again. Judges will have bankruptcy problems. They only look 
inviolate in those robes. We elevate them in the courtroom. But beneath 
those robes are human beings, and some of them have problems and some 
of them make mistakes. But they shouldn't end up here on the Senate 
floor debating whether he was a moocher or whether he paid for enough 
lunches.
  He will let the record stand and you judge him for it. He felt he 
deserved to be disciplined. Maybe he felt he deserves to be here, I 
don't know. But he

[[Page 19044]]

doesn't deserve to be removed. He didn't commit treason, he didn't 
commit bribery or other high crimes and misdemeanors. He committed 
mistakes. But in the end, only a U.S. Senator can say what is removable 
conduct. It comes to you along a road that has been traveled by two 
centuries of your predecessors--a road that began with people such as 
James Madison, George Mason.
  One Senator who sat where you sit now was Senator Edmund Ross of 
Kansas, who stood in the judgment of President Andrew Johnson. Many of 
what Ross's Republican colleagues wanted was Johnson out of office, for 
good reason. The public demanded his removal. He was viewed as a 
political enemy by Ross. He was the subject of John F. Kennedy's book 
``Profiles in Courage.'' He was one of those profiles. Kennedy 
explained:

       The eleventh article of impeachment was a deliberately 
     obscure conglomeration of all the charges in the preceding 
     articles, which had been designed by Thaddeus Stevens to 
     furnish a common ground for those who favored conviction but 
     were unwilling to identify themselves on basic issues.

  Does that sound familiar at all? While the record was filled with 
abuses and poor judgment by Johnson, Ross was forced to consider 
whether they amounted to an impeachable offense. And as the rollcall 
occurred, he found himself a key vote standing between Johnson and 
removal from office. Ross described the sensation as,

       Almost literally looking down into my open grave . . . as 
     everything that makes life desirable to an ambitious man was 
     about to be swept away by the breath of my mouth, perhaps 
     forever.

  He then jumped into that grave and he uttered the words of ``not 
guilty'' to the shock of his colleagues. His career ended. He was 
chastised at home, but he became a profile in courage not just for John 
F. Kennedy but, I hope, for many people in this Chamber.
  No career will be lost with your vote today. Indeed, in a week of 
votes--of sweeping immigration changes and nuclear treaties--I think 
the world is in a bit of amazement and awe that we would have so many 
of you here today to just stop and decide the facts and the future of a 
Federal judge. It is a testament to this system. No matter what you do 
today, Judge Porteous will not return to the bench. He will be 
convicted or he will retire. No senatorial career will turn on his 
vote. But of course impeachment has never been about one president or 
one judge but all presidents and all judges. The Framers understood 
that.
  What will be lost today is not a career but a constitutional standard 
that has served this Nation for two centuries--a standard fashioned by 
the very men who laid the foundation of this Republic; a standard 
maintained by generations of Senators who sat where you now sit in this 
very Chamber. We ask you to do as they have done and hold the 
constitutional line.
  We ask you to acquit Judge G. Thomas Porteous.
  The PRESIDENT pro tempore. Thank you very much, Professor. 
Representative Schiff will conclude the case for the House managers, 
and the House has 26\1/2\ minutes remaining.
  Mr. Manager SCHIFF. Mr. President, Senators, let me begin this 
conclusion by some agreement with my colleague--this is a remarkable 
proceeding, and the true import of it is demonstrated by the fact of 
how much you have going on this week and the amount of time we are 
devoting to this today. It is a reflection of the seriousness, it is a 
reflection of the fact that these cases come around very rarely, and 
for good reason. The Constitution sets the bar high. It doesn't want 
either the House or the Senate to take the process of impeachment 
lightly. We in the House certainly do not, and we know in the Senate 
you don't take that responsibility lightly either.
  We have set out the facts about why this judge needs to be removed 
from the bench, and I wish to take this opportunity to rebut some of 
the points my colleague has made. I think when you go through the 
evidence, and when you discuss it with the Senators who sat through the 
trial, you will find, on each of the articles as charged, that G. 
Thomas Porteous must be removed from office.
  Counsel began by stating that the judge wasn't prohibited from being 
prosecuted for many of these crimes; that he signed tolling agreements 
with the Department of Justice. But this is what the Department of 
Justice said in its letter transmitting the case:

       Although the investigation developed evidence that might 
     warrant charging Judge Porteous with violations of criminal 
     law relating to judicial corruption, many of those instances 
     took place in the 1990s and would be precluded by the 
     relevant statute of limitations.

  The tolling agreements that Judge Porteous signed contained this 
clause:

       I understand that nothing herein has the effect of 
     extending or reviving any such period of limitations that has 
     already expired prior to April 5, 2006.

  So anything that was gone by then was gone for good, and he made no 
agreement to revive it. So the case was referred to the fifth circuit. 
The fifth circuit had 2 days of hearings and, according to Judge 
Porteous's counsel, provided unprecedented sanctions on the judge.
  Do you know what those unprecedented sanctions are? That he has heard 
no cases and earned his entire salary for 3 years. He was paid his full 
salary for doing nothing. That is an enormous sanction that was placed 
upon him--a sanction I think many Americans would love to have, to be 
paid a Federal judicial salary for doing nothing. That was the 
sanction.
  Counsel says he offered to retire. Well, why didn't he? Why didn't he 
3 years ago retire from the bench? He could have. But the Judge's whole 
intent--which has been demonstrated throughout the procedural history 
by changing attorneys and moving for delays and continuances--has been 
to draw out the clock, to go another month with another Federal 
paycheck, to see if he can eke it out a little longer until he can get 
his full salary, his full retirement for life. There was nothing 
preventing this judge from retiring 3 years ago.
  Turning to the claims made by counsel in article I, that the articles 
don't charge a kickback scheme, let me read from article I.

       While he was a State court judge in the 24th Judicial 
     District in the State of Louisiana, he engaged in a corrupt 
     scheme with attorneys Amato and Creely whereby Judge Porteous 
     appointed Amato's law partner as a curator in hundreds of 
     cases, and thereafter requested and accepted from Amato and 
     Creely a portion of the curator fees.

  It says right here, he sent them the cases and thereafter requested 
and received a portion of money from those cases. If that is not a 
kickback, I don't know what is.
  I guess counsel's real argument is, well, why didn't they use the 
term kickback? And because they didn't use the term that counsel would 
use in the charging instrument, therefore, you must acquit. That is not 
the law in impeachment cases, that we have to charge using a particular 
word. What we do have to do is set out the conduct.
  Senator Leahy asked: Well, what about perjury? We don't use the word 
perjury in the fourth article, but we set out in the fourth article 
that he made material false statements before the Senate, knowingly, 
willfully, and deliberately. That is perjury. So we don't use that 
particular word. We don't have to use that word. We don't have to 
charge a particular criminal statute. When we do use particular words, 
counsel takes issue; when we don't use particular words, counsel takes 
issue. What is the requirement here? That we charge him with high 
crimes and misdemeanors. And yes, those words do appear in the 
articles.
  Now the gift. The wedding gift, as counsel calls it. You will notice 
from the portion he read to you, Mr. Amato never calls it a gift. Mr. 
Turley does, in his question. In fact, after Mr. Turley asked those 
questions, I asked both Creely and Amato: Was this a wedding present? 
Was this a wedding gift? And their answer was: Of course not.
  Counsel has just said: Well, back in the fifth circuit, when Judge 
Porteous was explaining what happened, he didn't want to contradict his 
friends, or maybe he didn't have such a good recollection. So 3 years 
ago, during the fifth circuit when he said--he called it then a loan 
that he never paid back. But he didn't have as good a recollection 3 
years ago as counsel does now

[[Page 19045]]

when he calls it a wedding gift. Well, no one has ever referred to this 
as a wedding gift. It was not a wedding present. It wasn't something 
they registered for.
  In fact, the conversation in the testimony at trial was, Amato says: 
We are out on a fishing trip and he says, look, I invited too many 
guests to the wedding--this is where the wedding comes in. I invited 
too many guests to the wedding. I can't afford this. You got to help me 
out. Can you get me 2,000. Can you give me 2,000. Can you find me a way 
to get 2,000?
  Does that sound like a gift to you? And you don't have to take my 
word for this or counsel's word. There were 12 Senators who sat through 
these days of testimony. Ask them if this was a wedding gift.
  Counsel says: Well, these were just really close friends of the 
Judge. This was Uncle Jake and Uncle Bob. These were just close 
friends. Yet, look at the transcript of that recusal hearing where the 
judge says--because at that point he wants to distance himself--I don't 
really know these attorneys. Have we had lunch? Yes. But I have lunch 
with all the lawyers in the courthouse.
  Have I ever been to their house? No.
  Well, that is odd. This is Uncle Bob and Uncle Jake. They are that 
close, according to counsel, but the judge has never been to their 
house? Clearly, from the point of the recusal hearing, where he is 
trying to show--trying to mislead the parties, he doesn't know these 
attorneys any better than any other attorneys he has lunch with. Then, 
it is one thing, but here it is Uncle Bob and Uncle Jake now.
  Counsel says Creely denied that this was a relationship between the 
cash and the curators. That is simply not the case. If you look at 
Creely's testimony, he says the judge called him and was hitting him up 
for the curator money. When Creely says--the reason Creely doesn't like 
calling it a kickback, apart from the very self-serving and obvious 
reason, is, he says: I didn't ask for these curator cases; therefore, 
it can't be a kickback because I didn't want them. They were a 
nuisance. He says: The judge sent them to me because he wanted to hit 
me up for the money, but because we didn't have an agreement in 
advance, because he basically forced me to take these cases and then 
forced me to give him some of the money, therefore, it wasn't a 
kickback. I don't think that is how the definition of a ``kickback'' 
works.
  Plainly, Creely testified that the judge understood the money was 
coming from the curatorships. Plainly, the judge knew it was a 
kickback, and if Creely doesn't want to admit it or call it that 
himself, that is exactly what it was. In fact, Amato testified that 
Creely came to him and said: Look, the judge is hitting me up for the 
curator money. What do we do?
  Amato said: Well, let's just give it to him.
  Basically, it wasn't going to cost them much. They are getting these 
cases. They are kicking back a portion of it, so they decide to do it.
  Counsel makes the suggestion, again, he is being charged with being a 
moocher, he is being charged with having free lunches. Again, I 
encourage you to talk to the Senators who were there. As my comments 
about Senator Johanns earlier make clear, they are not about whether 
the judge was a moocher or had too many free lunches. This is about 
getting money from attorneys, this is about setting bonds not with the 
public interest in mind but to maximize the profit of a bail bondsman 
and get a lot of gifts and favors and trips and car repairs and 
everything else out of it.
  Counsel makes the astounding claim that everybody in the case agreed 
that this is the best judge in Louisiana. God, I hope not. If that is 
the case, we are in much more serious trouble than any of us can 
imagine. But that was certainly not the testimony in this case.
  Counsel says: Why weren't there records produced by the House of the 
curatorships? They could have gone and gotten the records. This is 
somewhat inexplicable because we did get the records. We went into the 
courthouse and got the boxes and found the record of these curator 
cases and we introduced records of hundreds of curator cases that were, 
in fact, assigned to Creely that were the subject of these thousands 
and thousands of dollars that were returned.
  Counsel says: Well, the witnesses couldn't specify exactly how much--
was it $20,000, was it $19,000, was it $21,000--and, therefore, you 
can't believe they actually got the money.
  The judge himself doesn't deny getting the money. You know why we 
can't be precise about whether it was $19,000 or $21,000 or $20,000? 
Because as the witnesses said during the trial, they paid in cash so 
there would be no paper trail. I guess counsel is saying, if you pay in 
cash, you can never be charged or impeached because then the government 
can't prove exactly how many dollars went into your pocket.
  Counsel then makes the claim that if you impeach him because he lied 
and misled people during the recusal hearing, what you are doing is 
impeaching a judge because of a judicial decision, and that erodes 
judicial independence, as if it were a disagreement with the case law 
on the motion, the case law on the opinion or his judicial philosophy. 
That is not what this is about. This is about taking money during a 
case. This is denying a motion, when you know you received money from 
the attorneys and lying about it. It is not about the merits of the 
cases you cite or your judicial philosophy or what the standard ought 
to be.
  The judge set the right standard during the hearing. He understood 
exactly what was required of him. That is what makes it so egregious. 
He set out the standard, if you read that transcript, perfectly, and he 
said if anything should come up during the trial that should require me 
to take myself off the case, I will let you know and give you that 
opportunity.
  So what happens? The case is under submission. As counsel points out, 
it was under submission for 3 years, and during that period does 
something happen that would cause an objective person to question his 
impartiality? Yes. He hits them up for 2,000 bucks and they give it to 
him. Does he do what he said he would do during that recusal hearing 
and give the parties a chance to ask him to get off the case? Of course 
not.
  No, instead, counsel paints Porteous as a victim of this conspiracy 
to go through judge after judge in this hospital case. But, no, he is a 
hero. He is going to stay in there. He will not recuse himself. He will 
not let those parties manipulate the system. This is Judge Porteous as 
hero, occasionally as victim, but never as the abuser of the public 
trust that, in fact, he is. The fact that the opposing counsel who 
loses the recusal motion has to bring in another crony of the judge 
with an agreement that says: If you get the judge off the case, we will 
give you one hundred--100,000 bucks to start and 100,000 more if you 
get him off the case, it shows you how the system is corrupted by this 
judge. The other party has to bring in a crony for his side of the 
case.
  Counsel says Mr. Amato testified that, well, he thought that Porteous 
was going to do the right thing--as if that makes it OK. I guess you 
have to ask: Well, what did Mr. Amato think the right thing was? I am 
sure he thought the right thing was he was going to rule for him. In 
fact, that is, of course, exactly what Judge Porteous does. He rules 
for Mr. Amato in an opinion that is excoriated by the court of appeals 
as being made out of whole cloth.
  Counsel asks: Why didn't he recuse himself and that way his other 
crony would have gotten 100,000 bucks? If he did that, then Mr. Amato 
would lose $500,000 to $1 million because that is how much he stood to 
make in fees on the case. If he lost the case, he made nothing. If he 
won the case, he made $\1/2\ million to $1 million. So here the judge 
had to decide: Do I favor my one crony who stands to make 100 grand or 
my other crony who stands to make $500 million. Well, he chose to stand 
by the crony who would make $500 million.
  Article II, this is about six lunches, counsel claims. This is the 
same issue that was raised with Senator Johanns. This is not about six 
lunches. Not even

[[Page 19046]]

the portion of article II which deals with Federal conduct is about six 
lunches. It is about a judge recruiting his successor into the same 
corruption scheme he was engaged in while he was a State judge, a 
recruitment that was successful. Judge Bodenheimer was recruited. He 
then went to work with the Marcottes, so he wouldn't deal with it until 
he was vouched to work by Judge Porteous, and then Judge Bodenheimer 
goes to jail. This is the character witness Judge Porteous calls during 
the trial, Judge Bodenheimer, who went to jail for almost 4 years for 
the same charges. If you look at the charges Judge Bodenheimer pled 
guilty to, it was having this arrangement with the bail bondsmen, where 
he would set bonds to maximize the profits of the bondsmen in exchange 
for these favors and gratuities.
  Counsel says: Well, the House has said at one point it was not going 
to show that any particular bond was set too high or too low. Counsel 
did not mention the fact that what we were saying is, we weren't going 
to say this particular bond, in the case of Joe Smith, should have been 
$50,000 higher or $20,000 lower. No, we were not going to say in a 
particular case. What we were going to say was the arrangement with the 
bondsmen, as the evidence showed during trial, was that in each of the 
cases that went before the judge, the bondsman would say: This is where 
I can make the most money, set it at this point. That is what we said 
we would prove, and that is what we showed during the trial.
  Counsel then says something to the effect that the Duhon expungement 
was downgraded. I don't know what that means. Mr. Duhon was called to 
testify. He testified about the fact--just like Wallace, the other 
expungement--he didn't hire an attorney, Mark Hunt did. He didn't tell 
the attorney anything. Mark Hunt arranged the whole thing. If you look 
at the transcripts of the expungements and the set-asides between the 
judge--when the judge sets aside these convictions of these two 
Marcotte employees, do you know what is striking about them? There is 
nothing said during the hearing. There is nothing said. There is no 
case made about why this person deserves to have their conviction set 
aside. The lawyer doesn't say: Judge, he has lived a good life, he has 
never had a problem with the law, he deserves this. It is silent. The 
judge just says: I am going to do this. I am setting aside this 
conviction under code section blah, blah, blah. There is no discussion; 
the judge doesn't want there to be. He doesn't want anybody listening 
or watching to read the transcript and to know what is going on.
  Counsel can say: Well, there is nothing, per se, illegal about 
setting aside a conviction. In fact, the evidence during the trial 
showed the judge lacked the power to set aside one of the convictions 
because Louisiana law says you can't set aside a conviction where the 
person has already started their sentence, and this person, Wallace, 
had already finished the sentence. But regardless of that, even if you 
believe somehow he had the power to ignore Louisiana law, the question 
is why? Why did he exercise that power? On this issue, counsel has 
never had an answer. The uncontradicted testimony was, the reason he 
exercised that power was because Marcotte asked him to, because 
Marcotte was doing him favors, and more than that, Duhon and Wallace 
were doing him favors, picking up his car, getting it washed, filling 
it with gas, and fixing the transmission, leaving $300 buckets of 
shrimp for him, when he got back in his car, and bottles of vodka.
  That is why he expunged the convictions, because Marcotte asked him 
to, because he was doing favors for the judge.
  Counsel continues to make the assertion, which I can't understand, 
that somehow the conviction was not set aside after confirmation. The 
record is plain, that is exactly what happened. The conviction was set 
aside right after he was confirmed. There is no reason why that 
couldn't have been done before, except for the fact he didn't want you 
to find out about it. He didn't want you to know about his relationship 
with the Marcottes. That is the reason it was delayed, that is the 
reason it was concealed, that is the reason he said nothing about it, 
and that is the reason why the record corroborates exactly what Mr. 
Marcotte testified.
  In article III counsel says: Yes, he filed under a false name. 
Variously, during the proceedings earlier, in his written pleadings, 
counsel calls it a pseudonym. He filed under a pseudonym, as if it is a 
romance novel and he is using a pen name. During the trial, counsel 
said it was a typographical error. Now he says it is the lawyer's 
mistake.
  This is not a situation where you have a layperson going to an expert 
lawyer and being advised of some arcane provision of bankruptcy law. 
This is a Federal judge with 20 years of experience and the lawyer 
concocts this scheme: Well, let's use a false name, and why don't you 
go out and get a P.O. box so we don't have to list your address, and 
the judge does this.
  This is not advice of counsel. This is collusion. What is the judge's 
explanation for why he is entitled to file under a fake name? He 
doesn't want to embarrass himself, and I guess he doesn't want to 
embarrass his wife.
  What does this mean; that if you are a Federal judge, you have a 
right to file under a false name under penalty of perjury because you 
don't want to be embarrassed? If you are an ordinary citizen, you don't 
have that right. Is it only judges who are embarrassed by bankruptcy? 
You don't think a teacher who files bankruptcy is embarrassed or a 
banker who files bankruptcy or a baker or anyone else would be 
embarrassed if their neighbors or their employer or someone else finds 
out they have had to file bankruptcy? It is a very painful, 
embarrassing process for anyone, and a Federal judge doesn't have any 
more right than anyone else to use a fake name.
  Counsel says: Well, no harm, no foul because he finished his 
bankruptcy proceeding and creditors got paid. He didn't want the notice 
in the paper, but the creditors all found out about it anyway.
  Yes, the creditors found out about it because it went public. The 
hope was it never would. What the judge also wanted, in addition to 
avoiding the embarrassment, he didn't want the casinos to know. He 
didn't want the casinos to know because if the casinos knew--and they 
weren't listed as creditors, even though he continued to hand out his 
gambling chits and gamble--if they knew, they would deny him credit, 
and they wouldn't let him keep gambling, which is exactly what he did 
during the rest of the bankruptcy.
  On article IV, counsel concedes that prior conduct can be impeached 
as long as it is during the confirmation process. So I guess they have 
waived any objection constitutionally to impeach on prior conduct for 
the purpose of article IV because, of course, article IV, the lying to 
the Senate, is during the confirmation process.
  He says: Well, these questions were brought out, though. They were 
about embarrassing facts. He is focused on one word ``embarrassing.'' 
But when you look at those forms and the questions you asked in the 
Senate, it is not just about embarrassment, it is: Are you aware of any 
negative information that may affect your confirmation? He answers: To 
the best of my knowledge, I am not aware of any negative information 
that might affect my confirmation. That is what he told you, and it 
will be your decision: Is that truth or is that a lie?
  Now, counsel implies that it is impossible to know what that question 
really means. So I asked his own expert this during the trial: If 
information came out before confirmation that a candidate for judge 
took kickbacks from attorneys in exchange for the official act of 
sending curator cases, would, in your expert opinion, that be 
unfavorable information that would affect that nomination?
  This was Professor Mackenzie:

       If it were true, yes, it would be.
       Question. It would kill the nomination, wouldn't it?
       Answer. I think it probably would, yeah.
       Question. And a reasonable person would understand that, 
     wouldn't they?
       Answer. Yes, I think so.

[[Page 19047]]

       Question. That wouldn't require a level of insight of which 
     no ordinary person is capable?
       No, I agree with that. Yeah.
       Question. If information came up before confirmation that 
     the candidate set bail at amounts to maximize the profits of 
     a bail bondsman--et cetera

  Same answer to each of those questions. Their own expert said plainly 
that information is called for by that question. Their expert said: You 
have no right to lie. If you do not want to suffer the humiliation of 
revealing that you are corrupt, you know what you do--you withdraw your 
nomination. And, in fact, that is why these cases are rare. It is rare, 
frankly, that you do not find this information during the vetting 
process. But when it comes out, when the White House nominates someone 
and it comes out that there is a problem, do you know what happens? 
They withdraw. Now, they may withdraw and say, I have had second 
thoughts, or, I want to spend more time with my family, or for whatever 
reason. They do not have to say why. But that is what happens.
  The confirmation process should not be a game of hide and seek with 
the Senate where if you can keep your illicit conduct or your 
corruption hidden from the Senate and get by that confirmation hearing, 
you are set for life. That is not the precedent we want to set. That 
was the view, the unanimous view, of the House of Representatives.
  It will be for all of you to decide to what degree you want nominees 
in the future to feel that they can mislead the Senate, that they can 
conceal information about corrupt activity; if they can just get 
through the confirmation, they will be home free, they will be beyond 
the reach of impeachment. I think that is a careless path to go down as 
well.
  When counsel summed up, he asked: Did he betray his office? I think 
that is the right question. I think hitting up attorneys, when you have 
a pending case worth millions, for $2,000 cash, that is betraying your 
office. I think recruiting other judges into a corrupt scheme is 
betraying your office. I think lying to the Senate is a betrayal. I 
think lying to the bankruptcy court is a betrayal.
  In the most plain terms, what does this mean, to violate the public 
trust? Let's say you do not impeach. What is someone walking into Judge 
Porteous's courtroom or any other judge in New Orleans or California or 
anywhere else to think? Do they think: Well, I guess I can file 
something under a false name because the judges do and that is all 
right. I guess maybe I need to see if I can pay the judge some cash or 
fill up his car or fix his radiator if I want them to rule in my favor.
  Can anyone seriously go into Judge Porteous's courtroom after this 
without wondering those very things? Is that not the kind of abuse of 
the public trust the Framers intended to provide a remedy for so that 
we would not have to continue to suffer someone on the bench who would 
damage the institution in that way?
  We believe this conduct is beneath the dignity of anybody to serve on 
the bench. That is not only toward Judge Porteous, but it is toward all 
who serve with him and has raised profound questions certainly in one 
courthouse and probably many others about just who is sitting on the 
bench.
  The remedy of impeachment is not punitive. It is not designed to 
punish Judge Porteous. Instead, it is designed to protect the 
institution. And I believe, on behalf of the House, it is not possible 
to protect the institution by deciding that this level of corruption is 
OK, that solicitation of cash is OK, that striking deals with bail 
bondsmen that don't take official acts in the public's best interest or 
public trust but on how to enrich the judge is OK. These things are not 
OK. These things are not just an appearance problem, as counsel 
suggests. This is unethical. This is criminal. And for the purposes of 
an impeachment proceeding, it is also a high crime and misdemeanor 
warranting removal.
  Thank you.
  The PRESIDENT PRO TEMPORE. All time has expired.
  Questions have been submitted in writing. The clerk will now report 
the questions.
  The legislative clerk read as follows:

       Senator Franken to Mr. Turley: Isn't what happened before 
     he was a Federal judge relevant if he subsequently lied about 
     it?

  Mr. TURLEY. Senator Franken, what I would say is that we have agreed 
that if those lies occurred during a confirmation hearing, it was an 
act of perjury, then certainly you would have a potential impeachable 
offense.
  I think that the line being drawn here is--I think this may be the 
thrust of your question--that if it is pre-Federal conduct, the answer 
is no. This body has stated in cases like Archbald that it will not 
consider pre-Federal conduct for a very good reason. The Constitution 
guarantees life tenure for good behavior in office. That is how the 
Framers defined it.
  If you allow for the House to go back in this case three decades--
three decades--and say: Look at all of these things you did before you 
became a judge, we are going to have a do-over. We think that now you 
should be removed because of those things, not because of what you did 
as a Federal judge. And I think there is a distinction. I believe that 
if there was perjury in the confirmation hearing--I don't think Mr. 
Schiff and I would disagree on that point. But there is a big 
difference. That is the constitutional Rubicon. That is where this body 
has never gone. And I do believe, if you look at it objectively, you 
can see that the perils on that path are obvious and that this body 
should not go there. There are articles here that refer to Federal 
conduct, and you have every right to judge this man, but you should 
judge him as a judge for what he did to the office you gave him, and I 
think that is what the Framers intended.
  The assistant legislative clerk read as follows:

       Senator Specter to Mr. Turley: Why did Judge Porteous waive 
     the statute of limitations? Did he think the move was a 
     realistic possibility that he would have been exonerated?

  Mr. TURLEY. Thank you, Senator Specter. I want to emphasize that with 
regard to statute of limitations, he waived the statute of limitations 
he was requested to waive. And the House has come forth and said:--they 
said they still could not proceed in this area or that area. As I 
mentioned, they were able to do that with Bodenheimer. The statute of 
limitations was not a limitation.
  The reason he did it is the same reason he went to the Fifth Circuit 
and said: I am not going to contest these facts. Whether I remember 
specifically how the money was given to me, as I recall, I was given 
money, and it was a gift, and it was a mistake. He said: I am not going 
to contest that, I am not going to fight that because it was wrong. And 
the same thing with the statute of limitations. He said: I am a judge, 
and if you can find a crime to charge me with, then you should do it.
  That is the point of waiving a statute of limitations. There is no 
other point of waiving a statute of limitations. You take a risk. And, 
you know, you yourself, as a well-known defense attorney--well, a well-
known litigator, I should say, as are many people in this room, usually 
you encourage people not to waive a statute of limitations because you 
don't know where it will lead. This judge decided he would. And 
ultimately, the Justice Department found that, in looking at all of the 
evidence, they couldn't bring a charge, and they certainly could not 
secure a verdict on that basis.
  But I don't think there was anything sinister about waiving a statute 
of limitations. I mean, to the extent that you believe he waived it 
because he didn't think he could be charged with a crime, the answer, I 
think, is yes, he doesn't think he did commit a crime, and he waived 
it.
  The legislative clerk read as follows:

       Senator Merkley to Mr. Turley. Judge Porteous, while he had 
     the Lifemark case under advisement, solicited a cash gift 
     from an attorney (Amato) who represented one side of the 
     dispute. He then accepted a $2,000 gift from this attorney.
       You have referred to this gift as only an appearance of a 
     conflict of interest. How can parties to a case expect fair 
     treatment from a judge if the judge solicits and receives a 
     gift from an attorney on one side in a case?

[[Page 19048]]

       Doesn't such a solicitation during a trial constitute a 
     complete abandonment of impartiality and a fundamental abuse 
     of the judge's position and a betrayal of the public trust?

  Mr. TURLEY. Senator, first of all, I believe I agree with the 
sentiments that were expressed in that question. He should not have 
accepted the gift. That is why he accepted discipline. But it was an 
appearance of impropriety. That is how the court treated it. You can 
read the opinion by the dissenting judges and look into whether an 
appearance of impropriety should be an impeachable offense.
  There is no suggestion it was a bribe. It is not alleged it was a 
bribe. And so what you have then is something that is classified as an 
appearance of impropriety, and an appearance of impropriety does all of 
the things that the question suggests. That is why you do not want 
appearances of impropriety, because it makes people uncertain as to 
whether the judge is being fair and unbiased. And he admitted to that. 
It was a mistake. But it was not during the trial. The trial was long 
over. This was years after the trial. But it was still a mistake. The 
case was still pending. And he should have realized that.
  And, yes, we do refer to it as a wedding gift. I am not so sure why 
we are having the dispute because it was Amato who said--he raised the 
fact that he needed money to pay for his son's wedding, and the result 
of that is that Amato and Creely gave him $2,000 cash. And it is true 
that they are friends with Timothy. It is true, you know--I am not 
surprised to hear a suggestion that Creely--that there might be an 
overstatement of the relationship. I suggest that you read the record. 
But they were very close to Timothy. But it does not excuse anything. 
That is why he accepted the punishment.
  But words mean things in impeachments. You know, Mr. Schiff points 
out, why did we have to actually say ``kickback''? Why are you making 
us say ``kickback''? Just look at how these words hold together. Is 
this not what a kickback is? Well, yeah. And it can also be conspiracy, 
it could be mail fraud, it could be wire fraud, it could be a number of 
other things when you talk about corruption.
  The reason we want you to say ``kickback'' or ``bribe'' is because it 
is a specific allegation. And one of those is mentioned actually in the 
Constitution itself.
  By the way, the House managers knew that the issue before the Supreme 
Court was whether you are going to allege a kickback. So they knew that 
courts, in fact, turn down honest services for the failure to allege 
kickbacks, and they still did not mention it. Why? Because they wanted 
to use corruption.
  So the point is, in answer to this question, that if it is not a 
kickback and it is not a bribe, it is what the Court said it was in the 
Fifth Circuit--an appearance of impropriety. And that is not good. And 
Mr. Schiff and I will agree on this. No attorney wants a judge to do 
what was done in this case, and that is why he was disciplined, and he 
was disciplined harshly. That is the most severe discipline this court 
has handed down.
  Mr. Schiff might, in fact, say: What is that? You do not get to be a 
judge? That is a lot because you are reprimanded by your colleagues. 
You are held up for ridicule. And I got to tell you, it is not 
something most people would want for themselves. It was an appearance 
of impropriety, and he was severely disciplined for it.
  The PRESIDENT pro tempore. Are there any more questions?
  The Chair recognizes the majority leader.


                             closed session

  Mr. REID. Mr. President, I move that pursuant to impeachment rule 10, 
the Senate now close its doors to commence deliberations on the motions 
and impeachment articles and ask unanimous consent that floor 
privileges during the closed session be granted to the individuals 
listed on the document I now send to the desk.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  The list is as follows:

                       Impeachment Closed Session


                            floor privileges

       Parliamentarians: Alan Frumin, Elizabeth MacDonough, Peter 
     Robinson, Leigh Hildebrand.
       Legislative Clerks: Kathie Alvarez, John Merlino, MaryAnne 
     Clarkson.
       Journal Clerks: Scott Sanborn, William Walsh, Ken Dean.
       Official Reporters: Valentin Mihalache, Pam Garland, Joel 
     Breitner, Mark Stuart, Rebecca Eyster, Patrick Renzi, Julie 
     Bryan and Paul Nelson.
       Executive Clerk's Office: Jennifer Gorham.
       Majority Leader: Gavin Parke, Mike Castellano, Serena Hoy, 
     Gary Myrick.
       Republican Leader's Office: John Abegg.
       Democratic Secretary's Office: Tim Mitchell, Tricia Engle, 
     Meredith Mellody.
       Republican Secretary's Office: Laura Dove, Jody Hernandez.

       Senate Legal Counsel:

       21. Morgan Frankel,
       22. Pat Bryan,
       23. Grant R. Vinik,
       24. Thomas E. Caballero.

       Senate Staff

       25. Derron R. Parks,
       26. Thomas L. Jipping,
       27. Justin Kim,
       28. Rebecca Seidel,
       29. Erin P. Johnson,
       30. Paul Lake Dishman, IV,
       31. Susan Smelcer,
       32. Stephen Hedger,
       33. Chris Campbell,
       34. Paige Herwig,
       35. Stephen C.N. Lilley,
       36. Justin G. Florence,
       37. Matthew T. Nelson,
       38. Thomas J. Maloney,
       39. Nhan Nguyen,
       40. Erica Suares,
       41. Bryn Stewart,
       42. Emily Ferris,
       43. Michelle Weber,
       44. Jason Bohrer,
       45. Lori Hamamoto,
       46. Van Luong,
       47. Marie Blanco,
       48. Leadership Staff,
       49. Floor Staff.

  The PRESIDENT pro tempore. The Senate will now close its doors and 
only Members and staff granted floor privileges shall remain.
  The Sergeant at Arms will ensure the Chamber, the galleries, and the 
adjoining corridors are cleared of unauthorized persons.
  (At 5:45 p.m., the doors of the Chamber were closed.)
  (At 7:56 p.m., the doors of the Chamber were opened, and the open 
session of the Senate was resumed.)

                          ____________________