[Congressional Record (Bound Edition), Volume 156 (2010), Part 14]
[Senate]
[Pages 19869-19871]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          PORTEOUS IMPEACHMENT

  Mr. LEVIN. Mr President, today we are involved in one of the most 
important functions of the U.S. Senate, and one of the most rare. Only 
11 impeachment trials have been completed over the 221-year history of 
the Senate.
  Article II of the U.S. Constitution gives the ``sole Power to try all 
Impeachments'' to the Senate, and we take this role very seriously. 
Judges may be impeached and, if convicted, removed for ``Treason, 
Bribery, or other high Crimes and Misdemeanors.'' Neither the 
Constitution nor statute define ``other high Crimes and Misdemeanors.'' 
So it is up to each one of us to determine what actions reach the level 
of impeachable offenses egregious enough to remove a Federal officer 
such as a district court judge.
  It is important that the judges that we confirm to lifetime 
appointments have the utmost integrity. Anything less would undermine 
public confidence in the judicial system which has such a major impact 
on the lives of Americans. These votes are among the most important and 
difficult that we cast.
  Today I will vote to convict Judge Porteous on the basis of articles 
I through III. Those articles allege that Judge Porteous engaged in 
corrupt behavior with a law firm, had significant financial ties to 
that firm, but failed to recuse himself in a case where that same law 
firm represented one of the parties, improperly and unethically 
solicited and received a financial gift from a lawyer while he had that 
lawyer's case under advisement, and solicited favors from a bail 
bondsman and the bail bondsman's sister while using the power and 
prestige of his office to provide assistance to them and their business 
and made material false statements in conjunction with his personal 
bankruptcy filing.
  I believe that Judge Porteous is guilty of the actions outlined in 
those three articles which prove and that he is unfit to serve as a 
U.S. district court judge.
  I cannot, however, vote to convict Judge Porteous on the basis of 
article IV. Unlike the previous three articles that allege objective 
behavior to prove impeachable offenses, article IV is subjective: It 
requires us to determine Judge Porteous' state of mind--what he was 
thinking and how he felt about his past behavior. Article IV alleges 
that Judge Porteous ``knowingly made material false statements about 
his past to both the United States Senate and to the Federal Bureau of 
Investigation in order to obtain the office of United States District 
Court Judge.''
  Specifically, article IV states that Judge Porteous was asked if 
there was anything in his personal life that could be used by someone 
to coerce or blackmail him, or if there was anything in his life that 
could cause an embarrassment to Judge Porteous or the President if 
publicly known. Judge Porteous answered ``no'' to those questions. 
During his background check, Judge Porteous told the Federal Bureau of 
Investigation on two separate occasions that he was not concealing any 
activity or conduct that could be used to influence, pressure, coerce, 
or compromise him in any way or that would impact negatively on his 
character, reputation, judgment, or discretion. Finally, Judge Porteous 
was asked whether any unfavorable information existed that could affect 
his nomination. Judge Porteous answered ``no,'' to the best of his 
knowledge.
  Did Judge Porteous believe those answers were true when he made them? 
I do not believe that we should impeach and convict a person based on 
his or her beliefs or his or her state of mind. If we did, we would be 
removing someone from office without evidence he was intentionally 
lying, not about an objective fact but about what he believed at the 
time of his statement. Beyond that, it is a statement about a 
subjective issue. Judge Porteous may have believed that none of his 
conduct, if known, would be embarrassing to the President, or that 
nothing in his past could be used to improperly influence him, even if 
the Senate disagrees with that belief. We should remove someone from 
office based on his conduct or on his objectively false material 
statements of fact, not on subjective statements about subjective 
judgments.
  Assume that a candidate for the Federal bench in an answer to a 
question of the Judiciary Committee or Department of Justice said that 
nothing in his past would embarrass the President if known. After he is 
confirmed as a judge, he is involved in a messy divorce and it is 
discovered that the judge had had a series of extramarital affairs in 
the few years before he answered the questionnaire that he knew of 
nothing in his past that would embarrass the President. Assume further 
that in the judgment of the House, that behavior does embarrass the 
President. Under the theory of article IV, the judge's answer would 
constitute an impeachable offense. Article IV creates a precedent that 
is too potentially dangerous for me to support.
  To quote from page 60 of the Report of the Impeachment Trial 
Committee, ``Professor Mackenzie also testified that while the 
compromise-or-coercion question is asked `routinely' of ``virtually 
everybody who is interviewed,'' he could not recall any candidate who 
had ever responded affirmatively to this question. Nor was he aware of 
any individual who has ever responded affirmatively to a question that 
asks the candidate to `advise the Committee of any unfavorable 
information that may affect your nomination' or any nominee who had 
ever been prosecuted or removed from office for falsely answering such 
a question.''
  It is our solemn responsibility to protect the integrity of the 
Federal judiciary and the public trust in our judicial system. Today we 
will fulfill that role.
  Mr. BINGAMAN. Mr. President, the Senate has found G. Thomas Porteous, 
Jr. guilty of the charges contained in four articles of impeachment and 
removed him from office as a Federal district judge. In addition, it 
has adopted a motion disqualifying Mr. Porteous from ever holding any 
office of honor, trust, or profit under the United States. Although I 
voted guilty on all four articles of impeachment, I voted against the 
motion to disqualify Mr. Porteous from future office. Although the 
Constitution clearly gives the Senate the power to disqualify a person 
from holding future federal office upon impeachment, I do not believe 
that sanction was justified in this case, viewed in light of previous 
judicial impeachments.
  Under our Constitution, impeachment is a remedial measure, not a 
penal one. Its purpose is to not to punish wrongdoers, but to protect 
our government against official misconduct by removing corrupt 
officials from office. As Justice Story put it, impeachment ``is not so 
much designed to punish an offender, as to secure the state against 
gross official misdemeanors.''
  The Framers of our Constitution borrowed the idea of impeachment from 
Great Britain. But in Britain, in the centuries before the adoption of 
our Constitution, impeachments were used to punish as well as to remove 
from office. Impeachment by the British Parliament could result in 
fines, imprisonment, and even death. The Framers of our Constitution 
wanted none of that.

[[Page 19870]]

They wove safeguards against legislative punishments throughout the 
Constitution, in the prohibitions against bills of attainder and ex 
post facto laws, in an independent judiciary, and in the due process 
clause of the fifth amendment. Most clearly, they spelled out their 
design in the impeachment clause itself, which states that ``Judgment 
in Cases of Impeachment shall not extend further than to removal from 
Office, and disqualification to hold and enjoy any Office of honor, 
Trust or Profit under the United States.''
  Although united in a single sentence, ``removal from Office'' and 
``disqualification to hold . . . Office'' are separate and distinct 
remedies. They are treated as separate and distinct in our rules and in 
our precedents. Removal from office follows automatically upon 
conviction. It does not require a separate motion or vote. 
Disqualification from holding office in the future is discretionary. A 
separate motion and a vote on the motion are required.
  Like removal, disqualification is remedial. It protects the integrity 
of our government by declaring persons found guilty of corrupt behavior 
unfit for Federal office. It is not unique to impeachment, but can be 
found in a number of federal statutes that disqualify persons convicted 
of certain crimes, typically involving official misconduct. As the 
Supreme Court has said, it is ``a familiar legislative device,'' and 
``Federal law has frequently and of old utilized'' it. This is from De 
Veau v. Braisted, 363 U.S. 144, 158-159, 1960.
  But disqualification also has a punitive dimension to it. In the same 
paragraph of his Commentaries on the Constitution in which Justice 
Story said that impeachment is not ``designed to punish an offender,'' 
he referred to ``the punishment of disqualification.'' The Supreme 
Court also said that ``Disqualification from office may be punishment, 
as in cases of conviction upon impeachment.'' This is from Cummings v. 
Missouri, 77 U.S. 277, 320, 1867--stating that disqualifications in 
Missouri's Constitution ``must be regarded as penalties --they 
constitute punishment''.
  Because of the punitive aspect of disqualification and because the 
Senate's decision to disqualify a person is not subject to judicial 
review, see Nixon v. United States, 506 U.S. 224, 1993, the Senate's 
decision to impose disqualification is an especially grave one. The 
Senate has historically treated it as such. Out of the seven previous 
impeachment cases that resulted in a conviction since the Nation's 
founding, the Senate has impose disqualification in only two cases, one 
involving West Humphreys in 1862 and the other involving Robert 
Archbald in 1913. A motion was also made to disqualify Halsted Ritter 
following his conviction in 1936, but the Senate voted unanimously not 
to disqualify him. Thus, the Senate has not imposed the grave sanction 
of disqualification for nearly a century, between the impeachment of 
Mr. Archbald in 1913 and that of Mr. Porteous this week. None of the 
three judges convicted and removed from office in recent times--Harry 
Claiborne in 1986, Alcee Hastings in 1989, or Walter Nixon, also in 
1989--have been disqualified.
  As Judge Sporkin said in connection with the impeachment of Judge 
Hastings, ``impeachment must be invoked and carried out with solemn 
respect and scrupulous attention to fairness. Fairness and due process 
must be the watchword whenever a branch of the United States government 
conducts a trial, whether it be a criminal case, a civil case or a case 
of impeachment.'' This is from Hastings v. United States, 802 F. Supp. 
490, 492, D. D.C. 1992, vacated on other grounds, 988 F.2d 1280, D.C. 
Cir. 1993.
  Fairness, I believe, requires proportionality. As the Supreme Court 
has often said, ``it is a precept of justice that punishment for crime 
should be graduated and proportioned to offense.'' This is from Weems 
v. United States, 217 U.S. 349, 367, 1910. There are two dimensions to 
proportionality. The first, rooted in Magna Carta, is that the 
punishment should fit the crime, and the harshness of the penalty 
should be proportionate to the gravity of the offense. Unquestionably, 
the impeachment charges upon which the Senate convicted Mr. Porteous 
are serious and, measured by the gravity of the offense alone, 
conviction on these charges might well warrant the sanction of 
disqualification.
  But proportionality ought also to be measured against the punishments 
imposed on others impeached and convicted of comparable offenses. See 
Graham v. Florida, 130 S.Ct. 2011, 2040-2041, 2010, Chief Justice 
Roberts, concurring. Here, I think it is hard to justify disqualifying 
Mr. Porteous from holding future office when the Senate imposed no such 
disqualification on any of the other judges impeached and convicted for 
misconduct over the past 97 years. If there were considerations in this 
case that justify disproportionate punishment that were not present in 
the previous impeachments, they were not made clear at the trial.
  As Chief Justice Roberts recently wrote, ``the whole enterprise of 
proportionality review is premised on the `justified' assumption that 
`courts are competent to judge the gravity of an offense, at least on a 
relative scale.''' This is from Graham v. Florida, 130 S. Ct. 2011, 
2042, 2010, Chief Justice Roberts, concurring. Although the Senate sits 
as a ``court of impeachment'' to ``try'' impeachment cases, we are not 
sentencing judges and are not bound by judicial principles of 
proportionality. We possess what Alexander Hamilton described in 
Federalist No. 65 as the ``awful discretion . . . to doom'' people ``to 
infamy.'' Our judgments are not subject to judicial review. But for 
this very reason, I believe that we should only impose the punishment 
of disqualification with what Judge Sporkin called ``scrupulous 
attention to fairness,'' and some reasonable sense of proportion 
relative to previous, comparable impeachments. I do not believe that 
disqualification was a proportionate punishment in this case, and for 
that reason, I voted against the motion to disqualify Mr. Porteous.
  Mr. WHITEHOUSE. Mr. President, while serving on the impeachment trial 
committee, I heard evidence that convinced me that Judge Thomas 
Porteous had a long history of corrupt behavior, deceived this body 
during the pendency of his nomination to serve on the federal bench, 
failed to meet the ethical standards we expect of Federal judges, and 
should be removed from the bench. The Senate was right to convict him 
and to bar him from future Federal office.
  In light of the precedents this body inevitably sets in deciding to 
remove a Federal judge from office, the Senate must be thoughtful about 
the implications of our decisions on future impeachments. In this case, 
I believe that is particularly true with respect to the issue of 
aggregation of the Articles of Impeachment. Although the outcome of 
this trial may not turn on that question, it is fairly raised here, and 
calls to mind the prospect that in the future, House impeachment 
managers might be tempted to package a disparate bill of complaints 
against a President or Supreme Court Justice into a single article--
hoping that added together, the charges will attract the votes of 
enough Senators to convict. I believe we should mark in this proceeding 
our view that the House of Representatives must be scrupulous about 
properly crafting Articles of Impeachment in all future cases.
  Senators who have served as prosecutors will know that, under the 
``duplicity'' doctrine, a prosecutor cannot join together two or more 
distinct offenses into a single count of a criminal indictment. Thus, a 
single count cannot charge a criminal with kidnapping and murder. 
Instead, each charge must be placed in a different count so that the 
jury can vote separately on each count of the indictment.
  This prohibition against aggregated or duplicative counts in an 
indictment protects a defendant's constitutional due process rights, 
including rights to fair notice and to a unanimous jury verdict. The 
First Circuit Court of Appeals has explained that this prohibition 
``arises primarily out of a concern that the jury may find a defendant 
guilty on a count without having reached a unanimous verdict on the 
commission of any particular offense.'' The Third Circuit explained, in 
United

[[Page 19871]]

States v. Starks: ``there is no way of knowing with a general verdict 
on two separate offenses joined in a single count whether the jury was 
unanimous with respect to either.''
  An impeachment trial is not a criminal proceeding. The charges 
against Judge Porteous are described in Articles of Impeachment, not 
counts in an indictment. The constitutional rules of criminal procedure 
do not bind this body sitting in an impeachment trial. Rather, the 
Senate works with the constitutional standard of ``Treason, Bribery, or 
other high Crimes and Misdemeanors,'' the latter language of which does 
not define the specific elements of a removable offense. Because of 
numerous important differences between an article I Senate impeachment 
trial and an article III criminal trial, I think Articles of 
Impeachment need not be divided into distinctive counts to the full 
extent that a criminal indictment must.
  Nonetheless, there are principles of fairness at the heart of the 
doctrine of duplicity that should be honored. Article I, section 3 of 
the Constitution requires a two-thirds vote of the present Members of 
this body to convict a defendant during an impeachment trial. This 
suggests that there should be in the Senate a minimum level of 
agreement on the offense--67 votes, to be exact of which the defendant 
is convicted.
  It would strike me as suspect, for example, to convict a defendant of 
a single article that alleged that the defendant had committed treason 
and, 10 years later, had committed bribery. In that case, 30 Senators 
might believe he was guilty of bribery, and 40 Senators might believe 
he was guilty of treason. That would add up to 70 votes to convict even 
though 70 Senators believed he had not committed bribery, and 60 
believed he had not committed treason. Surely that was not the 
Founders' intent.
  Under another scenario, however, an article of impeachment might 
allege that a defendant, on one tax return, failed to disclose income 
from an investment, failed to disclose another investment entirely, and 
took a false deduction on yet a third investment, and then lied to IRS 
investigators during the following audit. I believe the Senate should 
be able to convict such a defendant for a single high crime or 
misdemeanor of willful tax evasion.
  I understand the school of thought that the only procedural 
protection an impeachment defendant enjoys is the supermajority 
requirement of 67 votes, and that it acts as a catch-all: Whatever 
procedural concerns there might be are swept away if a two-thirds 
supermajority agrees. Under this view, the duplicity concern, or any 
other, simply doesn't matter. Sixty-seven votes solves that--and every 
other procedural problem. I am not comfortable with that view.
  Instead, it is clear to me that there should come a point where an 
Article of Impeachment must be rejected for inappropriate aggregation 
of multiple offenses. That line falls in a different place in the 
impeachment context than it does in the criminal justice context, but 
exactly where it falls and how to define it is no easy question.
  Each Senator must arrive at his own standard for what conduct may be 
aggregated within a single article. However, as a general rule, I would 
suggest that the distinction between an unacceptably aggregated Article 
of Impeachment and an imperfectly drafted, yet ultimately acceptable, 
article turns on whether, at bottom, the article is alleging a single 
core offense. And I believe the appropriate remedy when a Senator 
concludes that an article is improperly aggregated is for the Senator 
to vote ``not guilty'' on that article.
  I voted against the defense's motion to dismiss the articles on the 
basis that they improperly aggregated multiple factual charges that 
belong in separate articles, and its incorporated request that the 
Senate carve up the Articles of Impeachment brought by the House into 
small pieces for the purposes of voting. I don't think that is our 
role. The House chose to draft the articles as it did, and the Senate--
in the role of adjudicator--should not be in the business of rewriting 
the prosecutor's charging sheet. The House was entitled to an up-or-
down vote on each article, not on only portions of each article. It 
sets a bad precedent to put the Senate in the position of drafting or 
altering the charging document on which it must vote.
  In contrast, I voted against the second Article of Impeachment. It 
alleges multiple separate and distinct offenses, united by a common 
thread: the judge's ``corrupt relationship'' with the Marcottes, which 
spanned over 20 years. The aggregation of multiple distinct offenses 
within the article, tied by only a ``relationship,'' creates 
significant uncertainty about what the Senate is voting on. Some 
Senators might find Judge Porteous guilty on allegations of corrupt 
bond-setting. Others might believe that the Judge did not set bonds 
improperly, but acted corruptly in expunging the sentences of employees 
of the Marcottes. Still other Senators might believe that this pre-
Federal conduct was not proven, but that the Judge should be convicted 
based on a series of lunches he participated in as a federal judge, or 
setting the Marcottes up with a successor judge. Put simply, this body 
could conceivably find Judge Porteous guilty of article II without 
agreeing which of multiple separate offenses linked by a long-term 
relationship was the ground for the conviction. The aggregation of 
charges in this article falls too close to the line for me, and so I 
voted ``not guilty'' on article II.
  The remaining articles raised no comparable concerns, so I have voted 
to convict on each.
  The first article of impeachment alleges that Judge Porteous 
improperly denied the recusal motion in the Lifemark case; in the 
course of doing so, failed to disclose his relationships with attorneys 
practicing before him; failed to disclose that he had improperly 
solicited and accepted thousands of dollars from those attorneys while 
the case was under advisement; and ultimately resolved the case in a 
manner suggesting that his decision was affected by his financial and 
personal relationship with the attorneys. Fundamentally, these 
allegations can be considered together to constitute a single 
impeachable offense of corruptly handling a single case; indeed, at its 
heart, a single motion to recuse. I believe that the House proved these 
allegations, and so voted to find Judge Porteous guilty on this 
article.
  Article III makes several allegations related to Judge Porteous's 
bankruptcy. But these can be grouped together under the single rubric 
of bankruptcy fraud related to a single filing: the false name, failure 
to disclose assets, and assumption of unlawful debt were all part of a 
single scheme to defraud the creditors in his own bankruptcy 
proceeding. I am comfortable that the House proved these claims, and so 
voted to convict Judge Porteous on article III.
  Similarly, although article IV alleges that the Judge failed to 
disclose various types of conduct at various stages of the confirmation 
process, this conduct is fairly characterized as establishing a single 
high crime or misdemeanor of knowingly making material false statements 
in order to secure Senate confirmation. All of these allegations relate 
to a single confirmation, and the preparation of a single confirmation 
package for Senate review. Again, I believe that evidence supports 
these allegations and that Judge Porteous should be convicted of 
article IV.
  Having voted to convict on these three Articles of Impeachment, I 
voted to bar Judge Porteous from future federal office.

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