[Senate Document 111-13]
[From the U.S. Government Publishing Office]
111th Congress
2d Session SENATE Document
111-13
_______________________________________________________________________
IMPEACHMENT OF
JUDGE G. THOMAS PORTEOUS, JR.
__________
CONSTITUTIONAL PROVISIONS; RULES OF PROCEDURE AND PRACTICE IN THE
SENATE WHEN SITTING ON IMPEACHMENT TRIALS; ARTICLES OF IMPEACHMENT
AGAINST JUDGE G. THOMAS PORTEOUS, JR.; JUDGE PORTEOUS' ANSWER; AND
AMENDED REPLICATION OF THE HOUSE OF REPRESENTATIVES
Printed at the direction of Nancy Erickson, Secretary of the Senate,
pursuant to S. Res. 457, 111th Cong., 2d Sess. (2010)
March 17, 2010.--Ordered to be printed
TABLE OF CONTENTS
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Page
I. S. Res. 457, 111th Cong., 2d Sess. (2010).........................1
II. Constitutional Provisions on Impeachment..........................5
III.Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials................................................7
IV. Articles of Impeachment Against Judge G. Thomas Porteous, Jr. (H.
Res. 1031, 111th Cong., 2d Sess. (2010)).........................15
V. Answer of Judge G. Thomas Porteous, Jr., to Articles of Impeachme25
VI. Amended Replication of the House of Representatives to the Answer
of Judge G. Thomas Porteous, Jr..................................35
II. CONSTITUTIONAL PROVISIONS ON IMPEACHMENT
The provisions of the United States Constitution which
apply specifically to impeachment are as follows:
Article I, Section 2, Clause 5
The House of Representatives . . . shall have the
sole Power of Impeachment.
Article I, Section 3, Clauses 6 and 7
The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall
be on Oath or Affirmation. When the President of the
United States is tried, the Chief Justice shall
preside: And no Person shall be convicted without the
Concurrence of two thirds of the Members present.
Judgment in Cases of Impeachment shall not extend
further than to removal from Office, and
disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according
to Law.
Article II, Section 2, Clause 1
The President . . . shall have Power to grant
Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment.
Article II, Section 4
The President, Vice President and all civil Officers
of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery,
or other high Crimes and Misdemeanors.
Article III, Section 1
. . . The Judges, both of the supreme and inferior
Courts, shall hold their offices during good Behaviour,
. . .
Article III, Section 2, Clause 3
The Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; . . .
III. RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON
IMPEACHMENT TRIALS
I. Whensoever the Senate shall receive notice from the
House of Representatives that managers are appointed on their
part to conduct an impeachment against any person and are
directed to carry articles of impeachment to the Senate, the
Secretary of the Senate shall immediately inform the House of
Representatives that the Senate is ready to receive the
managers for the purpose of exhibiting such articles of
impeachment, agreeably to such notice.
II. When the managers of an impeachment shall be introduced
at the bar of the Senate and shall signify that they are ready
to exhibit articles of impeachment against any person, the
Presiding Officer of the Senate shall direct the Sergeant at
Arms to make proclamation, who shall, after making
proclamation, repeat the following words, viz: ``All persons
are commanded to keep silence, on pain of imprisonment, while
the House of Representatives is exhibiting to the Senate of the
United States articles of impeachment against ------ --------
''; after which the articles shall be exhibited, and then the
Presiding Officer of the Senate shall inform the managers that
the Senate will take proper order on the subject of the
impeachment, of which due notice shall be given to the House of
Representatives.
III. Upon such articles being presented to the Senate, the
Senate shall, at 1 o'clock afternoon of the day (Sunday
excepted) following such presentation, or sooner if ordered by
the Senate, proceed to the consideration of such articles and
shall continue in session from day to day (Sundays excepted)
after the trial shall commence (unless otherwise ordered by the
Senate) until final judgment shall be rendered, and so much
longer as may, in its judgment, be needful. Before proceeding
to the consideration of the articles of impeachment, the
Presiding Officer shall administer the oath hereinafter
provided to the Members of the Senate then present and to the
other Members of the Senate as they shall appear, whose duty it
shall be to take the same.
IV. When the President of the United States or the Vice
President of the United States, upon whom the powers and duties
of the Office of President shall have devolved, shall be
impeached, the Chief Justice of the United States shall
preside; and in a case requiring the said Chief Justice to
preside notice shall be given to him by the Presiding Officer
of the Senate of the time and place fixed for the consideration
of the articles of impeachment, as aforesaid, with a request to
attend; and the said Chief Justice shall be administered the
oath by the Presiding Officer of the Senate and shall preside
over the Senate during the consideration of said articles and
upon the trial of the person impeached therein.
V. The Presiding Officer shall have power to make and
issue, by himself or by the Secretary of the Senate, all
orders, mandates, writs, and precepts authorized by these rules
or by the Senate, and to make and enforce such other
regulations and orders in the premises as the Senate may
authorize or provide.
VI. The Senate shall have power to compel the attendance of
witnesses, to enforce obedience to its orders, mandates, writs,
precepts, and judgments, to preserve order, and to punish in a
summary way contempts of, and disobedience to, its authority,
orders, mandates, writs, precepts, or judgments, and to make
all lawful orders, rules, and regulations which it may deem
essential or conducive to the ends of justice. And the Sergeant
at Arms, under the direction of the Senate, may employ such aid
and assistance as may be necessary to enforce, execute, and
carry into effect the lawful orders, mandates, writs, and
precepts of the Senate.
VII. The Presiding Officer of the Senate shall direct all
necessary preparations in the Senate Chamber, and the Presiding
Officer on the trial shall direct all the forms of proceedings
while the Senate is sitting for the purpose of trying an
impeachment, and all forms during the trial not otherwise
specially provided for. And the Presiding Officer on the trial
may rule on all questions of evidence including, but not
limited to, questions of relevancy, materiality, and redundancy
of evidence and incidental questions, which ruling shall stand
as the judgment of the Senate, unless some Member of the Senate
shall ask that a formal vote be taken thereon, in which case it
shall be submitted to the Senate for decision without debate;
or he may at his option, in the first instance, submit any such
question to a vote of the Members of the Senate. Upon all such
questions the vote shall be taken in accordance with the
Standing Rules of the Senate.
VIII. Upon the presentation of articles of impeachment and
the organization of the Senate as hereinbefore provided, a writ
of summons shall issue to the person impeached, reciting said
articles, and notifying him to appear before the Senate upon a
day and at a place to be fixed by the Senate and named in such
writ, and file his answer to said articles of impeachment, and
to stand to and abide the orders and judgments of the Senate
thereon; which writ shall be served by such officer or person
as shall be named in the precept thereof, such number of days
prior to the day fixed for such appearance as shall be named in
such precept, either by the delivery of an attested copy
thereof to the person impeached, or if that cannot conveniently
be done, by leaving such copy at the last known place of abode
of such person, or at his usual place of business in some
conspicuous place therein; or if such service shall be, in the
judgment of the Senate, impracticable, notice to the person
impeached to appear shall be given in such other manner, by
publication or otherwise, as shall be deemed just; and if the
writ aforesaid shall fail of service in the manner aforesaid,
the proceedings shall not thereby abate, but further service
may be made in such manner as the Senate shall direct. If the
person impeached, after service, shall fail to appear, either
in person or by attorney, on the day so fixed thereof as
aforesaid, or, appearing, shall fail to file his answer to such
articles of impeachment, the trial shall proceed, nevertheless,
as upon a plea of not guilty. If a plea of guilty shall be
entered, judgment may be entered thereon without further
proceedings.
IX. At 12:30 o'clock afternoon of the day appointed for the
return of the summons against the person impeached, the
legislative and executive business of the Senate shall be
suspended, and the Secretary of the Senate shall administer an
oath to the returning officer in the form following, viz: ``I,
------ ------, do solemnly swear that the return made by me
upon the process issued on the ------ day of ------, by the
Senate of the United States, against ------ ------ is truly
made, and that I have performed such service as therein
described: So help me God.'' Which oath shall be entered at
large on the records.
X. The person impeached shall then be called to appear and
answer the articles of impeachment against him. If he appears,
or any person for him, the appearance shall be recorded,
stating particularly if by himself, or by agent or attorney,
naming the person appearing and the capacity in which he
appears. If he does not appear, either personally or by agent
or attorney, the same shall be recorded.
XI. That in the trial of any impeachment the Presiding
Officer of the Senate, if the Senate so orders, shall appoint a
committee of Senators to receive evidence and take testimony at
such times and places as the committee may determine, and for
such purpose the committee so appointed and the chairman
thereof, to be elected by the committee, shall (unless
otherwise ordered by the Senate) exercise all the powers and
functions conferred upon the Senate and the Presiding Officer
of the Senate, respectively, under the rules of procedure and
practice in the Senate when sitting on impeachment trials.
Unless otherwise ordered by the Senate, the rules of
procedure and practice in the Senate when sitting on
impeachment trials shall govern the procedure and practice of
the committee so appointed. The committee so appointed shall
report to the Senate in writing a certified copy of the
transcript of the proceedings and testimony had and given
before such committee, and such report shall be received by the
Senate and the evidence so received and the testimony so taken
shall be considered to all intents and purposes, subject to the
right of the Senate to determine competency, relevancy, and
materiality, as having been received and taken before the
Senate, but nothing herein shall prevent the Senate from
sending for any witness and hearing his testimony in open
Senate, or by order of the Senate having the entire trial in
open Senate.
XII. At 12:30 o'clock afternoon, or at such other hour as
the Senate may order, of the day appointed for the trial of an
impeachment, the legislative and executive business of the
Senate shall be suspended, and the Secretary shall give notice
to the House of Representatives that the Senate is ready to
proceed upon the impeachment of ------ ------, in the Senate
Chamber.
XIII. The hour of the day at which the Senate shall sit
upon the trial of an impeachment shall be (unless otherwise
ordered) 12 o'clock m.; and when the hour shall arrive, the
Presiding Officer upon such trial shall cause proclamation to
be made, and the business of the trial shall proceed. The
adjournment of the Senate sitting in said trial shall not
operate as an adjournment of the Senate; but on such
adjournment the Senate shall resume the consideration of its
legislative and executive business.
XIV. The Secretary of the Senate shall record the
proceedings in cases of impeachment as in the case of
legislative proceedings, and the same shall be reported in the
same manner as the legislative proceedings of the Senate.
XV. Counsel for the parties shall be admitted to appear and
be heard upon an impeachment.
XVI. All motions, objections, requests, or applications
whether relating to the procedure of the Senate or relating
immediately to the trial (including questions with respect to
admission of evidence or other questions arising during the
trial) made by the parties or their counsel shall be addressed
to the Presiding Officer only, and if he, or any Senator, shall
require it, they shall be committed to writing, and read at the
Secretary's table.
XVII. Witnesses shall be examined by one person on behalf
of the party producing them, and then cross-examined by one
person on the other side.
XVIII. If a Senator is called as a witness, he shall be
sworn, and give his testimony standing in his place.
XIX. If a Senator wishes a question to be put to a witness,
or to a manager, or to counsel of the person impeached, or to
offer a motion or order (except a motion to adjourn), it shall
be reduced to writing, and put by the Presiding Officer. The
parties or their counsel may interpose objections to witnesses
answering questions pro-pounded at the request of any Senator
and the merits of any such objection may be argued by the
parties or their counsel. Ruling on any such objection shall be
made as provided in Rule VII. It shall not be in order for any
Senator to engage in colloquy.
XX. At all times while the Senate is sitting upon the trial
of an impeachment the doors of the Senate shall be kept open,
unless the Senate shall direct the doors to be closed while
deliberating upon its decisions. A motion to close the doors
may be acted upon without objection, or, if objection is heard,
the motion shall be voted on without debate by the yeas and
nays, which shall be entered on the record.
XXI. All preliminary or interlocutory questions, and all
motions, shall be argued for not exceeding one hour (unless the
Senate otherwise orders) on each side.
XXII. The case, on each side, shall be opened by one
person. The final argument on the merits may be made by two
persons on each side (unless otherwise ordered by the Senate
upon application for that purpose), and the argument shall be
opened and closed on the part of the House of Representatives.
XXIII. An article of impeachment shall not be divisible for
the purpose of voting thereon at any time during the trial.
Once voting has commenced on an article of impeachment, voting
shall be continued until voting has been completed on all
articles of impeachment unless the Senate adjourns for a period
not to exceed one day or adjourns sine die. On the final
question whether the impeachment is sustained, the yeas and
nays shall be taken on each article of impeachment separately;
and if the impeachment shall not, upon any of the articles
presented, be sustained by the votes of two-thirds of the
Members present, a judgment of acquittal shall be entered; but
if the person impeached shall be convicted upon any such
article by the votes of two-thirds of the Members present, the
Senate may proceed to the consideration of such other matters
as may be determined to be appropriate prior to pronouncing
judgment. Upon pronouncing judgment, a certified copy of such
judgment shall be deposited in the office of the Secretary of
State. A motion to reconsider the vote by which any article of
impeachment is sustained or rejected shall not be in order.
Form of putting the question on each article of impeachment
The Presiding Officer shall first state the question;
thereafter each Senator, as his name is called, shall rise in
his place and answer: guilty or not guilty.
XXIV. All the orders and decisions may be acted upon
without objection, or, if objection is heard, the orders and
decisions shall be voted on without debate by yeas and nays,
which shall be entered on the record, subject, however, to the
operation of Rule VII, except when the doors shall be closed
for deliberation, and in that case no Member shall speak more
than once on one question, and for not more than ten minutes on
an interlocutory question, and for not more than fifteen
minutes on the final question, unless by consent of the Senate,
to be had without debate; but a motion to adjourn may be
decided without the yeas and nays, unless they be demanded by
one-fifth of the Members present. The fifteen minutes herein
allowed shall be for the whole deliberation on the final
question, and not on the final question on each article of
impeachment.
XXV. Witnesses shall be sworn in the following form, viz:
``You, ------ ------, do swear (or affirm, as the case may be)
that the evidence you shall give in the case now pending
between the United States and ------ ------, shall be the
truth, the whole truth, and nothing but the truth: So help you
God.'' Which oath shall be administered by the Secretary, or
any other duly authorized person.
Form of a subpena to be issued on the application of the managers of
the impeachment, or of the party impeached, or of his counsel
To ------ ------, greeting:
You and each of you are hereby commanded to appear before
the Senate of the United States, on the ---- day of ----, at
the Senate Chamber in the city of Washington, then and there to
testify your knowledge in the cause which is before the Senate
in which the House of Representatives have impeached ------ --
----.
Fail not.
Witness ------ ------, and Presiding Officer of the Senate,
at the city of Washington, this ---- day of ----, in the year
of our Lord ----, and of the Independence of the United States
the ----.
-------- --------,
Presiding Officer of the Senate.
Form of direction for the service of said subpena
The Senate of the United States to ------ ------, greeting:
You are hereby commanded to serve and return the within
subpena according to law.
Dated at Washington, this ---- day of ----, in the year of
our Lord ------, and of the Independence of the United States
the ----.
-------- --------,
Secretary of the Senate.
Form of oath to be administered to the Members of the Senate and the
Presiding Officer sitting in the trial of impeachments
``I solemnly swear (or affirm, as the case may be) that in
all things appertaining to the trial of the impeachment of ----
-- ------, now pending, I will do impartial justice according
to the Constitution and laws: So help me God.''
Form of summons to be issued and served upon the person
impeached
The United States of America, ss:
The Senate of the United States to -------- ------,
greeting:
Whereas the House of Representatives of the United States
of America did, on the ---- day of ----, exhibit to the Senate
articles of impeachment against you, the said ------ ------, in
the words following:
[Here insert the articles]
And demand that you, the said ------ ------, should be put to
answer the accusations as set forth in said articles, and that
such proceedings, examinations, trials, and judgments might be
thereupon had as are agreeable to law and justice.
You, the said ------ ------, are therefore hereby summoned
to be and appear before the Senate of the United States of
America, at their Chamber in the city of Washington, on the --
-- day of ----, at ---- o'clock ----, then and there to answer
to the said articles of impeachment, and then and there to
abide by, obey, and perform such orders, directions, and
judgments as the Senate of the United States shall make in the
premises according to the Constitution and laws of the United
States.
Hereof you are not to fail.
Witness ------ ------, and Presiding Officer of the said
Senate, at the city of Washington, this ---- day of ----, in
the year of our Lord ----, and of the Independence of the
United States the ------.
-------- --------,
Presiding Officer of the Senate.
Form of precept to be indorsed on said writ of summons
The United States of America, ss:
The Senate of the United States to ------ ------, greeting:
You are hereby commanded to deliver to and leave with ----
-- ------, if conveniently to be found, or if not, to leave at
his usual place of abode, or at his usual place of business in
some conspicuous place, a true and attested copy of the within
writ of summons, together with a like copy of this precept; and
in whichsoever way you perform the service, let it be done at
least ---- days before the appearance day mentioned in the said
writ of summons.
Fail not, and make return of this writ of summons and
precept, with your proceedings thereon indorsed, on or before
the appearance day mentioned in the said writ of summons.
Witness ------ ------, and Presiding Officer of the Senate,
at the city of Washington, this ---- day of ----, in the year
of our Lord ----, and of the Independence of the United States
the ----.
-------- --------,
Presiding Officer of the Senate.
All process shall be served by the Sergeant at Arms of the
Senate, unless otherwise ordered by the Senate.
XXVI. If the Senate shall at any time fail to sit for the
consideration of articles of impeachment on the day or hour
fixed therefor, the Senate may, by an order to be adopted
without debate, fix a day and hour for resuming such
consideration.
V. 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 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 that Judge Porteous engaged in
certain corrupt actions prior to his appointment and
confirmation to the position of Un[it]ed 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 is unclear as to the specific acts that are
claimed to violate the constitutional standard. Moreover, it
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 III 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 III 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 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.
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 statu[t]es, 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.
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.
1401 H Street, NW.
Suite 500
Washington, D.C. 20005.
Samuel S. Dalton,
Attorney at Law,
2001 Jefferson Highway
P.O. Box 10501
Jefferson, LA 70181-0501.
Remy Voisin Starns,
Attorney At Law PLLC
2001 Jefferson Highway
P.O. Box 10501
Jefferson, LA 70181-0501.
Counsel for G. Thomas Porteous, Jr.
United States District Judge
for the Eastern District
of Louisiana.
Submitted: April 7, 2010.
VI. AMENDED REPLICATION OF THE HOUSE OF REPRESENTATIVES TO THE ANSWER
OF G. THOMAS PORTEOUS, JR., TO THE ARTICLES OF IMPEACHMENT
The House of Representatives, through its Managers and
counsel, respectfully replies to the Answer to Articles of
Impeachment as follows:
Response to the Preamble
Judge Porteous in his Answer to the Articles of
Impeachment, denies certain of the allegations and makes what
are primarily technical arguments as to the charging language
that do not address the factual substance of the allegations.
However, it is in Judge Porteous's Preamble that he sets forth
his real defense and, without denying he committed the conduct
that is alleged in the Articles of Impeachment, insists that
nevertheless he should not be removed from Office,
At several points in his Preamble, Judge Porteous notes
that he was not criminally prosecuted by the Department of
Justice, the implication being that the House and the Senate
should abdicate their Constitutionally assigned roles of
deciding whether the conduct of a Federal judge rises to the
level of a high crime or misdemeanor and warrants the Judge's
removal, and should instead defer to the Department of Justice
on this issue. Judge Porteous maintains that impeachment and
removal may only proceed upon conduct that resulted in a
criminal prosecution, no matter how corrupt the conduct at
issue, or what reasons explain the Department's decision not to
prosecute. Judge Porteous provides no support for this
contention because there is none--that is not what the
Constitution provides.
Indeed, the Senate has by its prior actions made it clear
that the decision as to whether a Judge's conduct warrants his
removal from Office is the Constitutional prerogative of the
Senate--not the Department of Justice--and the existence of a
successful (or even an unsuccessful) criminal prosecution is
irrelevant to the Senate's decision. The Senate has convicted
and removed a Federal judge who was acquitted at a criminal
trial (Judge Alcee Hastings). The Senate has also convicted a
Federal judge for personal financial misconduct (Judge Harry
Claiborne) while at the same time acquitting that same Judge of
the Article that was based specifically on the fact of his
criminal conviction.\1\ Thus, Judge Porteous's repeated
references to what the Department of Justice did or did not do
adds nothing to the Senate's evaluation of the charges or the
facts in this case.\2\
---------------------------------------------------------------------------
\1\Judge Harry E. Claiborne was acquitted of Article III, charging
that he ``was found guilty by a twelve-person jury'' of criminal
violations of the tax code, and that ``a judgement of conviction was
entered against [him].'' See ``Impeachment of Harry E. Claiborne,'' H.
Res. 471, 99th Cong., 2d Sess. (1986) (Articles of Impeachment); 132
Cong. Rec. S15761 (daily ed. Oct. 9, 1986) (acquitting him on Article
III).
\2\Moreover, the Department of Justice's investigation hardly
vindicated Judge Porteous. To the contrary, the Department viewed Judge
Porteous's misconduct as so significant that it referred the matter to
the Fifth Circuit for disciplinary review and potential impeachment,
and set forth its findings in its referral letter.
---------------------------------------------------------------------------
Further, according to Judge Porteous, pre-Federal bench
conduct cannot be the basis of Impeachment, even if that
conduct consisted of egregious corrupt activities that was
beyond the reach of criminal prosecution because the statute of
limitations had run, and even if Judge Porteous fraudulently
concealed that conduct from the Senate and the White House at
the time of his nomination and confirmation. There is nothing
in the Constitution to support this contention, and it flies in
the face of common sense. The Senate is entitled to conclude
that Judge Porteous's pre-Federal bench conduct reveals him to
have been a corrupt state judge with his hand out under the
table to bail bondsmen and lawyers. Such conduct, which, as
alleged in Articles I and II, continued into his Federal bench
tenure, demonstrates that he is not fit to be a Federal judge.
Finally, the notion that Judge Porteous is entitled to
maintain a lifetime position of Federal judge that he obtained
by acts that included making materially false statements to the
United States Senate is untenable. Judge Porteous would turn
the confirmation process into a sporting contest, in which, if
he successfully were to conceal his corrupt background prior to
the Senate vote and thereby obtain the position of a Federal
judge, he is home free and the Senate cannot remove him.
Article I
The House of Representatives denies each and every
statement in the Answer to Article I that denies the acts,
knowledge, intent or wrongful conduct charged against
Respondent.
FIRST AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense and further
states that Article I sets forth an impeachable offense as
defined in the Constitution of the United States.
SECOND AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, namely, that
Article I is vague. To the contrary, Article I sets forth
several precise and narrow factual assertions associated with
Judge Porteous's handling of a civil case (the Liljeberg
litigation), including allegations that Judge Porteous ``denied
a motion to recuse himself from the case, despite the fact that
he had a corrupt financial relationship with the law firm of
Amato & Creely, P.C. which had entered the case to represent
Liljeberg'' and that while that case was pending, Judge
Porteous ``solicited and accepted things of value from both
Amato and his law partner Creely, including a payment of
thousands of dollars in cash.'' There is no vagueness
whatsoever in these allegations. Article I's allegation that
Judge Porteous deprived the public and the Court of Appeals of
his ``honest services''--a phrase to which Judge Porteous
raises a particular objection--could not be more clear and free
of ambiguity as used in this Article, and accurately describes
Judge Porteous's dishonesty in handling a case, including his
distortion of the factual record so that his ruling on the
recusal motion was not capable of appellate review.\3\
---------------------------------------------------------------------------
\3\Judge Porteous treats Article I as if it alleges the criminal
offense of ``honest services fraud,'' in violation of Title 18, United
States Code, Section 1346, and that because the term ``honest
services'' has been challenged as vague in the criminal context, the
term is likewise vague as used in Article I. Despite Judge Porteous's
suggestion to the contrary, Article I does not allege a violation of
the ``honest services'' statute. Moreover, it could hardly be contended
that proof that Judge Porteous acted dishonestly in the performance of
his official duties does not go to the very heart of the Senate's
determination of whether he is fit to hold office.
---------------------------------------------------------------------------
THIRD AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of the purported affirmative defense that Article I
charges more than one offense. The plain reading of Article I
is that Judge Porteous committed misconduct in his handling of
the Liljeberg case by means of a course of conduct involving
his financial relationships with the attorneys in that case and
his failure to disclose those relationships or take other
appropriate judicial action. The separate acts set forth in
Article I constitute part of a single unified scheme involving
Judge Porteous's dishonesty in handling Liljeberg. Further, the
charges in this Article are fully consistent with impeachment
precedent.\4\
---------------------------------------------------------------------------
\4\The respective Articles of Impeachment against Judges Halsted L.
Ritter, Harold Louderback, and Robert W. Archbald each set forth
lengthy descriptions of judicial misconduct arising from improper
financial relationships between those judges and the private parties.
These consist of detailed narration specifying numerous discrete acts.
See ``Impeachment of Judge Halsted L. Ritter,'' H. Res. 422, 74th
Cong., 2d Sess. (March 2, 1936) and ``Amendments to Articles of
Impeachment Against Halsted L. Ritter,'' H. Res. 471, 74th Cong., 2d
Sess. (March 30, 1936), reprinted in ``Impeachment, Selected Materials,
House Comm. on the Judiciary,'' Comm. Print (1973) [hereinafter ``1973
Committee Print''] at 188-197 (H. Res. 422), 198-202 (H. Res. 471);
[``Articles of Impeachment against Judge Robert W. Archbald''], H. Res.
622, 62d Cong., 2d Sess. (1912), 48 Cong Rec. (House) July 8, 1912
(8705-08), reprinted in 1973 Committee Print at 176; and [``Articles of
Impeachment against George W. English,''] Cong. Rec. (House), Mar. 25,
1926 (6283-87), reprinted in 1973 Committee Print at 162.
---------------------------------------------------------------------------
FOURTH AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, which, in
effect, seeks to suppress the statements of a highly educated
and experienced Federal judge, made under oath, before other
Federal judges. Judge Porteous was provided a grant of immunity
in connection with his Fifth Circuit Hearing testimony, and the
immunity order provided that his testimony from that proceeding
could not be used against him in ``any criminal case.'' Simply
put, an impeachment trial is not a criminal case.\5\
Accordingly, there is simply no credible basis to argue that
the Senate should not consider Judge Porteous's immunized Fifth
Circuit testimony.
---------------------------------------------------------------------------
\5\The Constitution makes it clear that impeachment was not
considered by the Framers to be a criminal proceeding. It provides:
``Judgment in Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any Office
of honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment,
Trial, Judgment and Punishment, according to Law.'' U.S. Const., Art.
3, cl. 7. See also, United States v. Nixon. 506 U.S. 224, 234 (1993)
(``There are two additional reasons why the Judiciary, and the Supreme
Court in particular, were not chosen to have any role in impeachments.
First, the Framers recognized that most likely there would be two sets
of proceedings for individuals who commit impeachable offenses--the
impeachment trial and a separate criminal trial. In fact, the
Constitution explicitly provides for two separate proceedings. . . .
The Framers deliberately separated the two forums to avoid raising the
specter of bias and to ensure independent judgments . . .'').
---------------------------------------------------------------------------
Answer to Article II
The House of Representatives denies each and every
statement in the Answer to Article II that denies the acts,
knowledge, intent or wrongful conduct charged against
Respondent.
FIRST AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense and further
states that Article II sets forth an impeachable offense as
defined in the Constitution of the United States.
SECOND AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, namely, that
the Article is vague. To the contrary, Article II sets forth
several precise and narrow factual assertions associated with
Judge Porteous's relationship with the Marcottes--both prior to
and subsequent to Judge Porteous taking the Federal bench.
Article II alleges with specificity the things of value given
to Judge Porteous over time and identifies the judicial or
other acts taken by Judge Porteous for the benefit of the
Marcottes and their business.
THIRD AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, namely, that
the Article improperly charges multiple offenses. The plain
reading of Article II is that Judge Porteous engaged in a
corrupt course of conduct whereby, over time, he solicited and
accepted things of value from the Marcottes, and, in return, he
took judicial acts or other acts while a judge to benefit the
Marcottes and their business.
FOURTH AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, namely, that
Article II improperly charges pre-Federal bench conduct as a
basis for impeachment. First, Article II plainly alleges that
Judge Porteous's corrupt relationship with the Marcottes
continued while he was a Federal Judge. Second, Judge
Porteous's assertion that pre-Federal bench conduct may not
form a basis for impeachment finds no support in the
Constitution and is not supported by any other sound legal or
logical basis.\6\ As a factual matter, it is especially
appropriate for the Senate to consider Judge Porteous's pre-
Federal bench corrupt relationship with the Marcottes where it
was affirmatively concealed from the Senate in the confirmation
process, where it involved conduct as a judicial officer
directly bearing on whether he was fit to hold a Federal
judicial office, and where that conduct, having now been
exposed, brings disrepute and scandal to the Federal bench.
---------------------------------------------------------------------------
\6\As but one example, if the pre-Federal bench conduct consisted
of treason, there could be no credible contention that such conduct
would not provide a basis for impeachment.
---------------------------------------------------------------------------
Article III
The House of Representatives denies each and every
statement in the Answer to Article III that denies the acts,
knowledge, intent or wrongful conduct charged against
Respondent.
FIRST AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense and further
states that Article III sets forth an impeachable offense as
defined in the Constitution of the United States.
SECOND AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, which alleges
in substance that the allegations in Article III are vague. To
the contrary, Article III sets forth several specific
allegations associated with Judge Porteous's conduct in his
bankruptcy proceedings. There is no credible contention that
Judge Porteous cannot understand what he is charged with in
this Article.
THIRD AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, which
alleges, in substance, that Article III charges more than one
offense. The plain reading of Article III is that Judge
Porteous committed misconduct in his bankruptcy proceeding by
making a series of false statements and representations, and by
incurring new debt in violation of a Federal Bankruptcy Court
order. This Article alleges a single unified fraud scheme, with
the purpose of deceiving the bankruptcy court and creditors as
to his assets and his financial affairs, so that Judge Porteous
could enjoy undisclosed wealth and income for personal
purposes--including gambling.
FOURTH AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, which, in
effect, seeks to suppress the statements of a highly educated
and experienced Federal judge, made under oath, before other
Federal judges. Judge Porteous was provided a grant of immunity
in connection with his Fifth Circuit Hearing testimony,
effectively eliminating the possibility that any of that
testimony could be used against him in any criminal case. An
impeachment trial is not a criminal case. There is simply no
credible basis to argue that the Senate should not consider
Judge Porteous's immunized Fifth Circuit testimony.
FIFTH AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense--which does
not take issue with the proposition that Judge Porteous
committed misconduct in a Federal judicial bankruptcy
proceeding, but contends only that the acts as alleged do not
warrant impeachment. First, this is not an affirmative defense.
It is up to the Senate to decide whether the facts surrounding
the bankruptcy warrant impeachment.
Second, the Senate has in fact removed a judge for personal
financial misconduct, and in 1986 convicted Federal Judge Harry
Claiborne and removed him from office for evading taxes. It is
significant that the Senate did not convict Judge Claiborne for
the crime of evading taxes. Rather, the Senate acquitted Judge
Claiborne of the one Article that charged him with having
committed and having been convicted of a crime.
Third, what the Department of Justice may consider material
for purposes of a criminal prosecution has nothing to do with
what the Senate may deem to be material for purposes of
determining whether Judge Porteous should be removed from
Office--an Office which requires that he oversee bankruptcy
cases and administer and enforce the oath to tell the truth.\7\
---------------------------------------------------------------------------
\7\It should be noted that Judge Porteous has testified and cross-
examined witnesses at the Fifth Circuit Hearing on the subject of his
bankruptcy, and the House therefore possesses evidence that was
unavailable to the Department of Justice.
---------------------------------------------------------------------------
Article IV
The House of Representatives denies each and every
statement in the Answer to Article IV that denies the acts,
knowledge, intent or wrongful conduct charged against
Respondent.
FIRST AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense and further
states that Article IV sets forth an impeachable offense as
defined in the Constitution of the United States.
SECOND AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, which alleges
the Article is vague. The allegations sets forth in Article IV
are specific and precise. In fact, Judge Porteous's description
of the charge fairly characterizes the offense: ``In essence,
Article IV alleges that Judge Porteous gave false answers on
various forms that were presented in connection with the
background investigation . . . .'' It is apparent, therefore,
that Judge Porteous has a clear understanding of these
allegations in Article IV, which specify the dates and
circumstances when the statements were made, and the contents
of the statements that are alleged to have been false. There is
no credible contention that the Article IV does not provide
Judge Porteous specific notice as to what this Article alleges.
THIRD AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense. The
allegation sets forth in Article IV are specific and precise.
They charge in substance that Judge Porteous made a series of
false statements to conceal the fact of his improper and
corrupt relationships with the Marcottes and with attorneys
Creely and Amato in order to procure the position of United
States District Court Judge. Charging these four false
statements, all involving a single issue, in a single Article
is consistent with precedent.\8\
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\8\As but one example, Article III of the Articles of Impeachment
against Judge Walter Nixon charged that he concealed material facts
from the Federal Bureau of Investigation and the Department of Justice
by making six, specified, false statements on April 18, 1984 at an
interview, and by making seven discrete false statements under oath to
the Grand Jury. ``Impeachment of Walter L. Nixon, Jr.,'' H. Res. 87,
101st Cong., 1st Sess. (1989) (Article III).
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FOURTH AFFIRMATIVE DEFENSE
The House of Representatives denies each and every
allegation of this purported affirmative defense, alleging that
the Senate cannot impeach Judge Porteous based on pre-Federal
bench conduct. First, Judge Porteous's assertion that pre-
Federal bench conduct may not form a basis for impeachment is
not supported by the Constitution. Notwithstanding Judge
Porteous's assertions to the contrary, the Constitution does
not limit Congress from considering pre-Federal bench conduct
in deciding whether to impeach, and there are compelling
reasons for Congress to consider such conduct--especially where
such conduct consists of making materially false statements to
the Senate. The logic of Judge Porteous's position is that he
cannot be removed by the Senate, even though the false
statements he made to the Senate concealed dishonest behavior
that goes to the core of his judicial qualifications and
fitness to hold the Office of United States District Court
Judge. The proposition that the Senate lacks power under these
circumstances to remedy the wrong committed by Judge Porteous
is simply untenable.
Respectfully submitted.
The United States House of Representatives,
By
Adam Schiff, Manager.
Bob Goodlatte, Manager.
Alan I. Baron, Special Impeachment
Counsel.
Managers of the House of Representatives: Adam B. Schiff,
Bob Goodlatte, Zoe Lofgren, Henry C. ``Hank'' Johnson, F. James
Sensenbrenner, Jr.
April 22, 2010.