[Congressional Record (Bound Edition), Volume 156 (2010), Part 4]
[Senate]
[Pages 5245-5248]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          COURT OF IMPEACHMENT

  Mr. REID. Mr. President, I ask unanimous consent the Senate convene 
as a Court of Impeachment to process the answer of Judge G. Thomas 
Porteous, Jr.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Pursuant to rule IX of the Rules and Procedures in the Senate when 
sitting on impeachment trials, the Secretary of the Senate will now 
swear the Sergeant at Arms.
  The SECRETARY of the SENATE. Do you, Drew Willison, solemnly swear 
that the return made by you upon the process issued on the 19th of 
March, 2010, by the Senate of the United States against G. Thomas 
Porteous, Jr., is truly made and that you have performed such service 
as therein described, so help you God?
  The DEPUTY SERGEANT at ARMS. I do.
  Mr. President, I send to the desk the return of service I executed 
upon service of the summons upon Judge G. Thomas Porteous, Jr., Friday, 
March 19, 2010, at 8:55 a.m.
  The ACTING PRESIDENT pro tempore. The return of service will be 
spread upon the Journal and printed in the Record.
  The return of service is as follows:

       The foregoing writ of summons, addressed to G. Thomas 
     Porteous, Jr., United States District Judge for the Eastern 
     District of Louisiana and the foregoing precept, addressed to 
     me, were duly served upon the said G. Thomas Porteous, Jr. by 
     my delivering true and attested copies of the same to G. 
     Thomas Porteous, Jr., at his home, 4801 Neyrey Drive, 
     Metairie, LA, on the 19th day of March 2010, at 8:55 a.m.
                                               Terrance W. Gainer,
                                                 Sergeant at Arms.

                                      Witness: Andrew B. Willison,
                                          Deputy Sergeant at Arms.

     Dated 23 March 2010.

  Mr. REID. Mr. President, I ask that the Secretary of the Senate 
communicate to the House of Representatives an attested copy of the 
answer of G. Thomas Porteous, Jr., Judge of the United States District 
Court for the Eastern District of Louisiana, to the articles of 
impeachment.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. REID. I further ask that the answer be referred to the 
Impeachment Trial Committee on the Articles Against Judge G. Thomas 
Porteous, Jr., established by the Senate on March 17, 2010; and that 
the answer of the respondent, G. Thomas Porteous, Jr., to the Articles 
of Impeachment exhibited against him by the House of Representatives be 
printed for the use of the Senate sitting in the trial of said 
impeachment.
  The ACTING PRESIDENT pro tempore. It is so ordered.
  The Answer to the Articles of Impeachment is as follows:

                   IN THE SENATE OF THE UNITED STATES

                SITTING FOR THE TRIAL OF AN IMPEACHMENT

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

 Answer of Judge G. Thomas Porteous, Jr. to the Articles of Impeachment

       The Honorable G. Thomas Porteous, Jr., a Judge of the 
     United States District Court for the Eastern District of 
     Louisiana, as commanded by the summons of the Senate of the 
     United States, answers the accusations made by the House of 
     Representatives of the United States in the four Articles of 
     Impeachment it has exhibited to the Senate as follows:

                                Preamble


    THE HOUSE OF REPRESENTATIVES' IMPEACHMENT OF JUDGE PORTEOUS IS 
                     UNPRECEDENTED AND UNJUSTIFIED

       For the first time in modern history, the House of 
     Representatives has impeached a sitting Article III Judge who 
     has never been charged with a crime. Indeed, it has been more 
     than 74 years since the House of Representatives has brought 
     Articles of Impeachment against a judge that were not 
     preceded by that judge's indictment in the criminal courts. 
     The Articles of Impeachment brought against Judge Porteous 
     are also unprecedented in two additional ways. First, this is 
     the only time since the ratification of the Constitution that 
     the House of Representatives has brought Articles of 
     Impeachment against a judge after the Executive Branch, 
     having conducted a thorough investigation, has declined to 
     prosecute. Second, it is the only time in the same period 
     that the House of Representatives has based an Article of 
     Impeachment against a judge, or any other officer, upon 
     allegations that pre-date his or her entry into federal 
     office.
       These actions are unprecedented and they are also 
     unjustified by the facts of this case. The four Articles of 
     Impeachment do not allege a single offense that supports the 
     conviction and removal of a sitting Article III Judge under 
     the impeachment clause of the Constitution. Article II, 
     Section 4 of the Constitution provides that the civil 
     officers shall be removed from office only upon ``Impeachment 
     for, and Conviction of, Treason, Bribery or other high Crimes 
     and Misdemeanors.'' The charges in the articles against Judge 
     Porteous do not rise to the constitutionally required level 
     of ``high Crimes and Misdemeanors.'' Indeed, in some 
     instances, the Articles allege violations of the canons of 
     judicial ethics or criticize Judge Porteous' handling of 
     matters before the Court. While Judge Porteous vehemently 
     denies violating those canons or mishandling matters, 
     noncriminal ethical violations or incorrect decisions have 
     never been found to

[[Page 5246]]

     be a sufficient basis for conviction and removal from office. 
     Such issues simply do not rise to the level of ``high Crimes 
     and Misdemeanors'' as contemplated by the Framers. To the 
     extent that a trial on the Articles in this case is permitted 
     to convert--in contravention of both the Constitution and 
     impeachment precedent--such acts into grounds for removal of 
     an Article III Judge, it will set a new standard. A standard 
     that treads deeply and dangerously into the realm of an 
     independent judiciary that was at the very core of the 
     Framers' vision of three co-equal branches of government.
       In devising the three branches, the Framers divided the 
     ability to impeach and remove Executive and Judicial Branch 
     officers between the House of Representatives and the Senate. 
     By doing so, the Framers, through the Constitution, empowered 
     the House to allege the standard for impeachment based upon 
     the language of the impeachment clause. But history has shown 
     the power to impeach is not the power to remove. The power to 
     try impeachments and remove officers upon conviction was 
     vested solely in the Senate. It is the Senate--a uniquely 
     deliberative body, free from the passions and prejudices of 
     the majority--that sits in judgment and determines whether a 
     given Article of Impeachment is sufficient, both legally and 
     factually, to justify the removal of an Article III Judge.
       In striking this careful balance, the Framers made clear 
     that the trial and removal process is not one that should 
     embrace unprecedented or novel impeachments. In vesting the 
     power in the Senate, the Framers' intent was that the process 
     would not be exercised easily or quickly, but carefully and 
     deliberately. The Framers, through the Constitution, 
     positioned the Senate along the path between the possibility 
     of ill-considered and novel uses of the power to impeach and 
     the decision to remove, confident that the Senate would stand 
     as a safeguard against removal when constitutional standards 
     had not been met. The Articles of Impeachment returned by the 
     House are unprecedented, unjustified, and fail to meet the 
     constitutionally required standard. Accordingly, Judge 
     Porteous, in answer, asks the Senate to fulfill its 
     constitutionally mandated role by dismissing the articles or, 
     alternatively, acquitting him of the charges.

                  General Denial of Facts Not Admitted

       Judge Porteous denies each and every material allegation of 
     the four Articles of Impeachment not specifically admitted in 
     this ANSWER.

                               Article I


                          ANSWER TO ARTICLE I

       Without waiving his affirmative defenses, Judge Porteous 
     admits that he presided as a United States District Judge 
     over the Lifemark Hospitals of Louisiana, Inc. v. Liljeberg 
     Enterprises litigation and that on October 17, 1996 he denied 
     a motion seeking to recuse him from presiding over the case. 
     Judge Porteous denies that he engaged in any corrupt conduct 
     in connection with his handling of the litigation or in 
     denying the motion for recusal. Judge Porteous denies that he 
     intentionally made any misleading statements during the 
     recusal hearing. Judge Porteous also denies engaging in a 
     corrupt scheme of any sort with Jacob Amato, Jr. and Robert 
     Creely and that he, at any time, deprived the parties or the 
     public of the right to the honest services of his office. 
     Judge Porteous further denies that he engaged in any corrupt 
     conduct after the bench trial in Lifemark Hospitals of 
     Louisiana, Inc. v. Liljeberg Enterprises or at any time while 
     the case was under advisement.


                 FIRST AFFIRMATIVE DEFENSE TO ARTICLE I

       Article I does not allege an offense that supports the 
     conviction and removal of a sitting Article III United States 
     District Judge under the impeachment clause of the 
     Constitution. Article II, Section 4 of the Constitution 
     provides that the civil officers shall be removed from office 
     only upon ``Impeachment for, and Conviction of, Treason, 
     Bribery or other high Crimes and Misdemeanors.'' The charges 
     in the articles against Judge Porteous do not rise to the 
     constitutionally required level of ``high Crimes and 
     Misdemeanors.'' Because Article I does not meet the rigorous 
     constitutional standard for conviction and removal, it should 
     be dismissed.


                SECOND AFFIRMATIVE DEFENSE TO ARTICLE I

       Article I is unconstitutionally vague. No reasonable person 
     could know what specific charges are being leveled against 
     Judge Porteous or what allegations rise to the level of 
     ``high Crimes and Misdemeanors'' as required by the 
     Constitution. In essence, Article I alleges that Judge 
     Porteous took several judicial actions while presiding as a 
     United States District Judge in Lifemark Hospitals of 
     Louisiana, Inc. v. Liljeberg Enterprises, including failing 
     to grant a recusal motion and failing to disclose certain 
     facts. In doing so, the Article alleges that Judge Porteous 
     ``deprived the parties and the public of the right to the 
     honest services of his office.'' This ``deprivation of the 
     right to honest services'' language is borrowed from Title 
     18, United States Code, Section 1346, a statute that is 
     fraught with vagueness concerns. Indeed, its constitutional 
     viability is currently pending before the United States 
     Supreme Court in a series of cases. See Weyhrauch v. United 
     States, No. 08-1196; Black v. United States, No. 08-876; and 
     Skilling v. United States, No. 08-1394. The inclusion of this 
     standard, as well as the nonspecific allegations regarding 
     the allegedly improper judicial actions taken by Judge 
     Porteous, render Article I unconstitutionally vague.
       It is a fundamental principle of our law and the 
     Constitution that a person has a right to know what specific 
     charges he is facing. Without such notice, no one can prepare 
     the defense to which every person is entitled. The law and 
     the Constitution also require that the charges provide 
     adequate notice to jurors so they may know the basis for the 
     vote they must make. Without a definite and specific 
     identification of specific ``high Crime and Misdemeanor'' 
     upon which the Article of Impeachment is grounded, a trial 
     becomes a moving target for the accused.
       Article I fails to provide the required definite and 
     specific identification. As an article of impeachment, it is 
     constitutionally defective and should be dismissed.


                 THIRD AFFIRMATIVE DEFENSE TO ARTICLE I

       Article I is fatally flawed because it charges multiple 
     instances of allegedly corrupt conduct in a single article. 
     The Constitution provides that ``no person shall be convicted 
     without the Concurrence of two thirds of the Members 
     present.'' Senate Rule XXIII provides that ``an article of 
     impeachment shall not be divisible for the purpose of voting 
     thereon at any time during the trial.''
       Despite these clear pronouncements, the House of 
     Representatives, in Article I, has alleged a series of 
     allegedly wrongful acts. In doing so, the House of 
     Representatives has returned an Article of Impeachment which 
     might permit a Senator to vote for impeachment if he or she 
     finds that Judge Porteous committed even a single allegedly 
     wrongful act, even where two-thirds of the Senators do not 
     agree on which wrongful act was committed. This creates the 
     very real possibility that conviction could occur even though 
     Senators were in wide disagreement as to the alleged wrong 
     committed. The structure of Article I presents the 
     possibility that Judge Porteous could be convicted even 
     though he would have been acquitted if separate votes were 
     taken on each allegedly wrongful acts included in the 
     article. As written, Article I does not require the 
     constitutionally required number of Senators to agree on the 
     specific conduct forming the basis for conviction and 
     removal. By charging multiple wrongs in one article, the 
     House of Representatives has made it impossible for the 
     Senate to comply with the Constitutional mandate that any 
     conviction be by the concurrence of two-thirds of the 
     members. Accordingly, Article I should fail.


                FOURTH AFFIRMATIVE DEFENSE TO ARTICLE I

       Article I was returned by the House of Representatives in 
     violation of Judge Porteous' constitutional rights in that it 
     is based, in part, upon his compelled testimony provided 
     under a grant of immunity. Because the process of 
     impeachment, conviction and removal is a quasi-criminal one 
     and under the circumstances here, Judge Porteous has 
     constitutional rights that are violated by the use of his 
     prior compelled, immunized testimony, Article I must be 
     dismissed. Further, because the immunity grant by Judge Edith 
     Jones, Chief Judge of the Fifth Circuit Court of Appeals and 
     Chair of the Special Committee of the Judicial Conference of 
     the Fifth Circuit, was not proper under the immunity statute, 
     the compelled testimony was wrongly procured and any Article 
     of Impeachment based upon that testimony must be dismissed.

                               Article II


                          ANSWER TO ARTICLE II

       Without waiving his affirmative defenses, Judge Porteous 
     denies that he engaged in a longstanding pattern of corrupt 
     conduct demonstrating his unfitness to serve as a United 
     States District Court Judge as alleged in Article II. Judge 
     Porteous further denies that he improperly set aside or 
     expunged felony convictions for two Marcotte employees. Judge 
     Porteous also denies that he at any time took any action in 
     his capacity as a United States District Judge that related 
     in any way to the Marcottes or their business interests.


                FIRST AFFIRMATIVE DEFENSE TO ARTICLE II

       Article II does not allege an offense that supports the 
     conviction and removal of a sitting Article III United States 
     District Judge under the impeachment clause of the 
     Constitution. Article II, Section 4 of the Constitution 
     provides that the civil officers shall be removed from office 
     only upon ``Impeachment for, and Conviction of, Treason, 
     Bribery or other high Crimes and Misdemeanors.'' The charges 
     in the articles against Judge Porteous do not rise to the 
     constitutionally required level of ``high Crimes and 
     Misdemeanors.'' Because Article II does not meet the rigorous 
     constitutional standard for conviction and removal, it should 
     be dismissed.


                SECOND AFFIRMATIVE DEFENSE TO ARTICLE II

       Article II is unconstitutionally vague. No reasonable 
     person could know what specific charges are being leveled 
     against Judge Porteous or what allegations rise to the level 
     of ``high Crimes and Misdemeanors'' as required by the 
     Constitution. Article II alleges

[[Page 5247]]

     that Judge Porteous engaged in certain corrupt actions prior 
     to his appointment and confirmation to the position of Untied 
     States District Judge. Article II makes no specific 
     allegations concerning actions taken by Judge Porteous while 
     on the federal bench. Indeed, the only allegations concerning 
     Judge Porteous tenure on the federal bench is that he in some 
     unidentified way ``used the power and prestige of his office 
     to assist the Marcottes in forming relationships with State 
     judicial officers and individuals important to the Marcottes' 
     business.'' The vagueness problem here cannot be overstated. 
     It is simply not possible to begin to defend against this 
     type of allegation. It is wholly lacking in any factual basis 
     and clearly fails to frame a set of facts that amount to 
     ``high Crimes and Misdemeanors.''
       As we set forth in the SECOND AFFIRMATIVE DEFENSE TO 
     ARTICLE I, it is a fundamental principle of our law and the 
     Constitution that a person has a right to know what specific 
     charges he is facing. Without such notice, no one can prepare 
     the defense to which every person is entitled. The law and 
     the Constitution also require that the charges provide 
     adequate notice to jurors so they may know the basis for the 
     vote they must make. Without a definite and specific 
     identification of specific ``high Crime and Misdemeanor'' 
     upon which the Article of Impeachment is grounded, a trial 
     becomes a moving target for the accused.
       Article II fails to provide the required definite and 
     specific identification. As an article of impeachment, it is 
     constitutionally defective and should be dismissed.


                THIRD AFFIRMATIVE DEFENSE TO ARTICLE II

       For the reasons set forth in the THIRD AFFIRMATIVE DEFENSE 
     TO ARTICLE I, Article II is constitutionally defective 
     because it charges multiple alleged wrongs in a single 
     article, which makes it impossible for the Senate to comply 
     with the Constitutional mandate that any conviction be by the 
     concurrence of the two-thirds of the members. Accordingly, 
     Article II should fail.


                FOURTH AFFIRMATIVE DEFENSE TO ARTICLE II

       Article II cannot support the conviction and removal of an 
     Article III United States District Judge because the alleged 
     conduct preceded Judge Porteous' service as a United States 
     District Judge. The constitutional impeachment mechanism 
     provides a procedure to remove a judge for the commission of 
     ``high Crimes and Misdemeanors'' while in federal office. The 
     impeachment precedents do not provide a single example of an 
     Article of Impeachment that has ever been based upon conduct 
     that allegedly occurred prior to the impeached officer's 
     entry into federal office. In contrast, the precedents 
     suggest that while the House of Representatives may have 
     investigated such allegations, that such conduct has never 
     provided the basis for an impeachment and, significantly, the 
     House has, on occasion, refused to take action because the 
     allegations preceded the officer's entry into federal 
     service. Moreover, while Judge Porteous contends that any 
     attempt to use Article III's ``good behaviour'' clause to 
     lower the standard necessary to impeach a federal judge is 
     unsupported by the Constitution's impeachment clause, the 
     House has clearly applied that lower standard in returning 
     the four Articles of Impeachment. To the extent that the 
     House has relied on the ``good behaviour'' clause, that 
     clause states that judges ``shall hold their offices during 
     good behaviour'' and clearly relates to a judge's conduct 
     while in federal judicial office. Because the allegations of 
     Article II relate to a period prior to Judge Porteous taking 
     the federal bench, Article II must be dismissed.

                              Article III


                         ANSWER TO ARTICLE III

       Without waiving his affirmative defenses, Judge Porteous 
     denies that he knowingly and intentionally made material 
     false statements and representatives in connection with his 
     personal bankruptcy or that he knowingly and intentionally 
     repeatedly violated a court order in his bankruptcy case.


                FIRST AFFIRMATIVE DEFENSE TO ARTICLE III

       Article III does not allege an offense that supports the 
     conviction and removal of a sitting Article III United States 
     District Judge under the impeachment clause of the 
     Constitution. Article II, Section 4 of the Constitution 
     provides that the civil officers shall be removed from office 
     only upon ``Impeachment for, and Conviction of, Treason, 
     Bribery or other high Crimes and Misdemeanors.'' The charges 
     in the articles against Judge Porteous do not rise to the 
     constitutionally required level of ``high Crimes and 
     Misdemeanors.'' Because Article III does not meet the 
     rigorous constitutional standard for conviction and removal, 
     it should be dismissed.


               SECOND AFFIRMATIVE DEFENSE TO ARTICLE III

       Article III is unconstitutionally vague. No reasonable 
     person could know what specific charges are being leveled 
     against Judge Porteous or what allegations rise to the level 
     of ``high Crimes and Misdemeanors'' as required by the 
     Constitution. In essence, Article III alleges a number of 
     actions taken by Judge Porteous in connection with his 
     personal bankruptcy, but it unclear as to the specific acts 
     are claimed to violate the constitutional standard. Moreover, 
     it is also does not clearly state the specific allegations 
     regarding what transaction Judge Porteous concealed during 
     the bankruptcy process or what new debts he allegedly 
     incurred.
       As we set forth in the SECOND AFFIRMATIVE DEFENSE TO 
     ARTICLE I, it is a fundamental principle of our law and the 
     Constitution that a person has a right to know what specific 
     charges he is facing. Without such notice, no one can prepare 
     the defense to which every person is entitled. The law and 
     the Constitution also require that the charges provide 
     adequate notice to jurors so they may know the basis for the 
     vote they must make. Without a definite and specific 
     identification of specific ``high Crime and Misdemeanor'' 
     upon which the Article of Impeachment is grounded, a trial 
     becomes a moving target for the accused.
       Article III fails to provide the required definite and 
     specific identification. As an article of impeachment, it is 
     constitutionally defective and should be dismissed.


                THIRD AFFIRMATIVE DEFENSE TO ARTICLE III

       For the reasons set forth in the THIRD AFFIRMATIVE DEFENSE 
     TO ARTICLE I, Article II is constitutionally defective 
     because it charges multiple alleged wrongs in a single 
     article, which makes it impossible for the Senate to comply 
     with the Constitutional mandate that any conviction be by the 
     concurrence of the two-thirds of the members. Accordingly, 
     Article II should fail.


               FOURTH AFFIRMATIVE DEFENSE TO ARTICLE III

       For the reasons set forth in the FOURTH AFFIRMATIVE DEFENSE 
     TO ARTICLE I, Article III was returned by the House of 
     Representatives in violation of Judge Porteous' 
     constitutional rights in that it is based, in part, upon his 
     compelled testimony provided under a grant of immunity. 
     Because the process of impeachment, conviction and removal is 
     a quasi-criminal one and under the circumstances here, Judge 
     Porteous has constitutional rights that are violated by the 
     use of his prior compelled, immunized testimony, Article 1 
     must be dismissed. Further, because the immunity grant by 
     Judge Edith Jones, Chief Judge of the Fifth Circuit Court of 
     Appeals and Chair of the Special Committee of the Judicial 
     Conference of the Fifth Circuit, was not proper under the 
     immunity statute, the compelled testimony was wrongly 
     procured and any Article of Impeachment based upon that 
     testimony must be dismissed.


                FIFTH AFFIRMATIVE DEFENSE TO ARTICLE III

       The allegations in Article III do not rise to the level of 
     ``high Crimes and Misdemeanors'' because they address purely 
     personal conduct that is not criminal. Prior impeachment 
     precedent has never before sought to convict and remove a 
     judge from office based upon personal non-criminal conduct. 
     The very nature of the impeachment process is focused first 
     and foremost upon the official actions of judges. Where 
     allegations in the Articles of Impeachment address non-
     official personal acts by judges, longstanding precedent has 
     limited ``high Crimes and Misdemeanors'' to those personal 
     acts that are also indictable offenses. Article III ignores 
     this precedent in seeking to convict and remove Judge 
     Porteous from office for non-official, non-criminal acts. 
     While it is possible that the House of Representatives would 
     claim that the actions taken in relation to the personal 
     bankruptcy were indictable offenses, this claim would 
     conflict with the multi-year investigation of the United 
     States Department of Justice which concluded that prosecution 
     was not warranted in light of the concern that the issues 
     related to the bankruptcy were not material. It would also 
     conflict with the criminal bankruptcy statutes, which require 
     that any alleged false statement not be made simply knowingly 
     or willfully, but fraudulently, before criminal liability may 
     attach to such conduct. In framing Article III, the House of 
     Representatives is seeking to convict and remove a sitting 
     United States District Judge based upon a lowered standard, 
     one that does not constitute ``high Crimes and 
     Misdemeanors,'' and one that has never before provided a 
     basis for impeachment, much less conviction and removal from 
     office. Article III of the Articles of Impeachment should be 
     dismissed.

                               Article IV


                          ANSWER TO ARTICLE IV

       Without waiving his affirmative defenses, Judge Porteous 
     denies that he knowingly made material false statements in 
     order to obtain the office of United States District Court 
     Judge.


                FIRST AFFIRMATIVE DEFENSE TO ARTICLE IV

       Article IV does not allege an offense that supports the 
     conviction and removal of a sitting Article III United States 
     District Judge under the impeachment clause of the 
     Constitution. Article II, Section 4 of the Constitution 
     provides that the civil officers shall be removed from office 
     only upon ``Impeachment for, and Conviction of, Treason, 
     Bribery or other high Crimes and Misdemeanors.'' The charges 
     in the articles against Judge Porteous do not rise to the 
     constitutionally required level of ``high Crimes and 
     Misdemeanors.'' Because Article IV does not meet the rigorous 
     constitutional standard for conviction and removal, it should 
     be dismissed.

[[Page 5248]]




                SECOND AFFIRMATIVE DEFENSE TO ARTICLE IV

       Article IV is unconstitutionally vague. No reasonable 
     person could know what specific charges are being leveled 
     against Judge Porteous or what allegations rise to the level 
     of ``high Crimes and Misdemeanors'' as required by the 
     Constitution. In essence, Article IV alleges that Judge 
     Porteous gave false answers on various forms that were 
     presented in connection with the background investigation 
     that was used to evaluate his appointment and confirmation as 
     a United States District Judge. However, it is not clear 
     whether Article IV contends that simply providing a single 
     one of the alleged false statements is a ``high Crime or 
     Misdemeanor'' or whether the ``high Crime or Misdemeanor'' is 
     based upon all of the acts alleged, i.e., several alleged 
     false statements and other conduct alleged. Moreover, the 
     nature of the questions on the forms that are the focus of 
     this Article themselves add to the vagueness problem.
       As we set forth in the SECOND AFFIRMATIVE DEFENSE TO 
     ARTICLE I, it is a fundamental principle of our law and the 
     Constitution that a person has a right to know what specific 
     charges he is facing. Without such notice, no one can prepare 
     the defense to which every person is entitled. The law and 
     the Constitution also require that the charges provide 
     adequate notice to jurors so they may know the basis for the 
     vote they must make. Without a definite and specific 
     identification of specific ``high Crime and Misdemeanor'' 
     upon which the Article of Impeachment is grounded, a trial 
     becomes a moving target for the accused.
       Article IV fails to provide the required definite and 
     specific identification. As an article of impeachment, it is 
     constitutionally defective and should be dismissed.


                THIRD AFFIRMATIVE DEFENSE TO ARTICLE IV

       For the reasons set forth in the THIRD AFFIRMATIVE DEFENSE 
     TO ARTICLE I, Article IV is constitutionally defective 
     because it charges multiple instances of alleged acts of 
     making false statements in one article, which makes it 
     impossible for the Senate to comply with the Constitutional 
     mandate that any conviction be by the concurrence of the two-
     thirds of the members. Accordingly, Article IV should fail.


                FOURTH AFFIRMATIVE DEFENSE TO ARTICLE IV

       Article IV cannot support the conviction and removal of an 
     Article III United States District Judge because the alleged 
     conduct preceded Judge Porteous' service as a United States 
     District Judge. The constitutional impeachment mechanism 
     provides a procedure to remove a judge for the commission of 
     ``high Crimes and Misdemeanors'' while in federal office. The 
     impeachment precedents do not provide a single example of an 
     Article of Impeachment that has ever been based upon conduct 
     that allegedly occurred prior to the impeached officer's 
     entry into federal office. In contrast, the precedents 
     suggest that while the House of Representatives may have 
     investigated such allegations, that such conduct has never 
     provided the basis for an impeachment and, significantly, the 
     House has, on occasion, refused to take action because the 
     allegations preceded the officer's entry into federal 
     service. Moreover, while Judge Porteous contends that any 
     attempt to use Article III's ``good behaviour'' clause to 
     lower the standard necessary to impeach a federal judge is 
     unsupported by the Constitution's impeachment clause, the 
     House has clearly applied that lower standard in returning 
     the four Articles of Impeachment. To the extent that the 
     House has relied on the ``good behaviour'' clause, that 
     clause states that judges ``shall hold their offices during 
     good behaviour'' and clearly relates to a judge's conduct 
     while in federal judicial office. Because the allegations of 
     Article IV relate to a period prior to Judge Porteous taking 
     the federal bench, Article IV must be dismissed.
           Respectfully submitted,
     Richard W. Westling,
     Chelsea S. Rice,
     Jackson B. Boyd,
     Anthony J Burba,
       Ober, Kaler, Grimes & Shriver, P.C.
     Samuel S. Dalton,
       Attorney at Law.
     Remy Voisin Starns,
       Attorney At Law PLLC.
       Counsel for G. Thomas Porteous, Jr., United States District 
     Judge for the Eastern District of Louisiana.
     Submitted: April 7, 2010.

  The ACTING PRESIDENT pro tempore. The Court of Impeachment is 
adjourned.

                          ____________________