THE PORTEOUS IMPEACHMENT: FINAL ARGUMENTS

The United States Senate will convene with all 100 members this morning for the final arguments in the impeachment of Judge G. Thomas Porteous. Final motions arguments will commence at 9:45 am on the Senate floor.

The proceedings on Tuesday will begin with argument on three defense motions: (1) the motion to dismiss Article I on the basis of the Supreme Court’s Skilling decision, (2) the motion to dismiss articles on the basis of pre-federal conduct, and (3) the motion to dismiss articles on the basis of the aggregation of claims. I will have one hour to argue the motions below. With me on the Senate floor will be my colleagues from Bryan Cave Dan Schwartz, P.J. Meitl, and Dan O’Connor. Our bankruptcy lawyers from Bryan Cave (Keith Aurzada and Brian Walsh) will not be present for the final arguments.
Below are the three motions that will be argued:

motion-to-dismiss-article-i
judge-g-thomas-porteous-jr-smotion-to-dismiss-article-ii
Judge G. Thomas Porteous, Jr.’sMotion to Dismiss the Articles of Impeachment as UnconstitutionallyAggregated

The Senate decided late last week that it would not deliberate on the motions before going to closing arguments. Instead, it will hear the motions and then take a break for a caucus luncheon.

The Senate will then return for closing arguments around 2:15 and both sides will be given ninety minutes. i will be doing the closing argument for our side. Judge Porteous will be present for both the motions and closing arguments. The Senate will then adjourn for deliberations. We will return to the Senate floor for the final vote, which will likely occur on Wednesday.

Here is the Porteous Post-Trial Brief: 10.29.10 – Porteous Post-Trial Brief

Jonathan Turley

54 thoughts on “THE PORTEOUS IMPEACHMENT: FINAL ARGUMENTS

  1. Good Luck in the “Den of Thieves”….regardless of how it turns the cards have been favored for the House….It has been another Dog and Pony show…I think that the US ought to be ashamed of itself….and alls they were doing is the….oh yeah…I forgot…yeah they were doing…..something about ethical standards….how can you know what they are if the ethics change for the person in power…..

  2. I’m enjoying the brief — well written and easy to digest. I’m rehabbing a brain injury at the moment, and have been doing a lot of reading in an effort to get back in the swing of things. When your brain doesn’t function quite as efficiently as you’d like, you become particularly appreciative of excellent writing.

  3. Best of luck to counsel carrying the banner for Judge Porteous. Your faithful blogger-supporters are sending all our best to you.As we say in bibicial times: select a good stone and sling it with force and accuracy, David.

  4. ONLINE THIS MORNING FROM THE TIMES-PICAYUNE, NEW ORLEANS:

    Published: Tuesday, December 07, 2010, 6:12 AM
    Editorial page staff, The Times-Picayune

    The Senate today is set to begin the impeachment trial of U.S. District Judge Thomas Porteous. Considering the evidence of the judge’s extensive corruption, senators should kick him off the bench when they take a vote as early as Wednesday.

    Judge Porteous is only the 15th jurist to be impeached in the nation’s history, and removing a federal judge from office is a serious decision. But it’s hard to find a judge as unfit for the federal bench as Judge Porteous.

    His offenses have been extensively documented, and even a brief synopsis conveys the breadth of his corruption: For years, he took cash payments from a bail bondsman in return for setting favorable bonds, and he also took cash from lawyers with cases in his court. When one of the attorneys decided to stop the payments, Judge Porteous cooked up a scheme in which he steered legal work to the attorney in exchange for kickbacks. Through it all, Judge Porteous repeatedly perjured himself by systematically hiding the illegal gifts and cash. He also lied under oath in his 2001 bankruptcy proceedings, among other offenses.

    Judge Porteous and his attorneys have argued that his transgressions don’t rise to the level of impeachable offenses and that removing him from office would set a dangerous precedent.

    They’re wrong.

    At least 35 federal judges at the 5th Circuit Court of Appeals and at the Judicial Conference of the United States, a disciplinary body led by U.S. Supreme Court Chief Justice John Roberts, examined the same evidence and recommended that Judge Porteous be impeached.

    In March, the House of Representatives approved four articles of impeachment against Judge Porteous by unanimous votes. That’s a testament to the strength of the evidence against him.

    Judge Porteous’ misconduct was serious and was repeated over a long period of time. The judge essentially saw himself as above the law — but no one should be, least of all someone who sits in judgment of others.

    Senators will now get to consider the judge’s shameless history. A vote for removing Judge Porteous will go a long way toward restoring the damage he’s caused to the administration of justice in Louisiana and to the reputation of

  5. COMPLETION OF THE EDITORIAL ARTICLE:

    Senators will now get to consider the judge’s shameless history. A vote for removing Judge Porteous will go a long way toward restoring the damage he’s caused to the administration of justice in Louisiana and to the reputation of the federal judiciary.

  6. Frank Mascagni III:
    Good Morning Sir!,Good to have you back.

    That last piece of home base reaction caught my eye to.

    “Senators will now get to consider the judge’s shameless history. A vote for removing Judge Porteous will go a long way toward restoring the damage he’s caused to the administration of justice in Louisiana and to the reputation of the federal judiciary.

  7. Frank Mascagni III wrote:

    “Your faithful blogger-supporters are sending all our best to you.As we say in bibicial times: select a good stone and sling it with force and accuracy, David.”

    ========

    Frank,

    Very nicely put… I especially like your parting shot, no pun intended.

  8. Jonathan doing a great job in his oratory. Appears relaxed and is certainly prepared. Great delivery and appropiate references to U.S. history and our framers and their intentions in the impeachment process. Congress vs. independence of the judicial branch. Framing his remarks in a sphere greater than his client. Good lawyering. Well crafted rebuttal remarks to the House prosecutors. Very impressive presentation. Jon is a real “word cobbler” in his remarks.

    When the facts are on your side, argue the facts; when the law is on your side, argue the law; here Jon has to challenge the senators to focus not on the facts, per se, but rather, if most are true, does the conduct reach the level to convict as a ” high crime or misdemeanor”? I find his arguments very logical and sincere with alot of “jury” appeal.

  9. Jon getting better as he is nearing his closing. Wow! Tearing up the facts/distinguishing the facts/ questioning the facts [and their weight] at the senate evidentiary hearing, to support his positions. Making point after point to show the leaps the House wants them to make to convict. Impressive. Making a silk purse out of a sow’s ear. He convinced me: behaviors questionable, improper maybe,bordering on unethical, maybe criminal[although not charged]but the proof in toto is insufficent and does not rise to the high level needed to convict. Bravo!

  10. This Senate hearing seems to be going under the radar of the MSM,at least what news I have been watching.The president and his compromise and the Assange arrest seem to have taken up all the oxygen.

  11. Frank Mascagni III :

    I was watching it on c-span ,I had taken notice it wasn’t being covered by the media and now they are saying,May she rest in peace Mrs John Edwards has passed away.

  12. 5:08 p.m. Jon finishes: He did a great job on behalf of his client. Challenged the senate not to vote to remove based on embarassment; if so, the line forming to impeach will not end. All appointments are at the senate’s pleasure. Jon states his client didn’t betray his office, maybe himself and his family. Sure he made mistakes but the issue before you is the import of the constitutional standard of over 200 years required to remove a federal judge.

    House counsel also made good points in their arguments and rebuttals. A good job of lawyering by both sides.

    A lot of data to digest by the senators. Is it possible for them to have read the record [or their staff to prepare a summary] prior to a vote scheduled for tomorrow? You think they’ve been distracted by other pressing matters recently?

    67 to convict vs. 34 needed to vote not guilty. “The answer my friend, is blowing in the wind…”.

  13. ONLINE FROM THE TIMES-PICAYUNE, NEW ORLEANS for bloggers who didn’t get a chance to watch it on C-Span today:

    Published: Tuesday, December 07, 2010, 2:37 PM Updated: Tuesday, December 07, 2010, 3:22 PM
    Bruce Alpert, Times-Picayune

    The Senate is in the middle of an all-day session that will culminate — most likely Wednesday — with votes on whether to remove New Orleans federal Judge Thomas Porteous from office.

    Retired Rear Adm. Barry Black, the Senate chaplain, began the session with a prayer remembering the anniversary of the 1941 Japanese attack on Pearl Harbor. It was followed by the Pledge of Allegiance.

    Senate Majority Leader Harry Reid said that senators should be prepared to stay in the chambers for most of the day to hear the impeachment proceedings.

    The Senate then held a quorum call – sort of attendance for lawmakers – to ensure that the minimum 51 senators were on hand for the session.

    At 9:12 a.m., Sen. Daniel Inouye, D-Hawaii, announced that a quorum was present and instructed the sergeant at arms to escort the House impeachment managers, Porteous and the judge’s lawyers into the Senate chamber.

    Newly elected Illinois Sen. Mark Kirk, a Republican, was excused from participating in the trial because, as he told his colleagues, he had voted for the four articles of impeachment in March as a member of the House of Representatives. Kirk said it is important to ensure that Porteous be given a fair hearing and because he has already expressed his opinions on the matter through his House votes, it would be appropriate that he not participate in the Senate proceedings.

    Per tradition, the Senate began the session with these words from the sergeant of arms: “Hear ye, hear ye, and hear ye. All persons are commanded to keep silent on pain of imprisonment” as they listen to the proceedings.

    Jonathan Turley, Porteous’ lead attorney, argued the Senate should not consider conduct that occurred before Porteous became a federal judge, that the Senate should not vote on articles with multiple accusations because it’s impossible to tell if two-thirds of the senators agreed with a single accusation, and they should not allow an article that relies on a federal honest services statute that has been largely made irrelevant by a recent Supreme Court ruling.

    “Article II eradicates two centuries of precedent and for what purpose?” Turley told senators. Article II accuses Porteous of awarding bonds favorable to a bail bond company controlled by owners who say they routinely provided the judge with meals and other gifts.

    All that activity, Turley said, occurred before he became a federal judge and senators, in another impeachment case, made it clear the Senate should not remove a judge for conduct prior to taking federal office.

    Turley said it’s important that on the articles with multiple allegations the Senate hold separate votes on each charge – to ensure that least one of them has the support of two-thirds of those voting.

    Otherwise, Porteous could be removed from office – even though only minorities of senators thought any of the individual accusations were worthy of removal.

    “That wouldn’t even be allowed in a criminal or civil trial,” Turley said. “A judge wouldn’t permit it. This judge (Porteous) wouldn’t permit it.”

    He also said the House shouldn’t be allowed to rely on an interpretation of the Honest Services statute that, in June, was specifically rejected by the U.S. Supreme Court.

    Rep. Adam Schiff, D-Calif., the lead House impeachment manager, told senators that the House carefully considered the Porteous case and concluded his conduct was “so morally repugnant, so violative of the public trust and that he so demeaned himself in office, that he was guilty of high crimes and misdemeanors” and unanimously approved four articles of impeachment.

    Schiff said that it doesn’t matter when bad conduct occurs, even if it is prior to holding federal office. If Turley’s arguments carried the day, it would force the judiciary to retain judges “who have proven to be corrupt,” Schiff said.

    But Schiff said that, in Porteous’ case, it’s clear he was “not only a corrupt state judge, but would become a corrupt federal judge, as well.”

    Schiff said that Article I is not fashioned after the Honest Services statute subject of the recent Supreme Court ruling.

    “It is written in non-technical language and focuses on his receipt of kickbacks,” said Schiff, referring to gifts provided by the owners of Bail Bonds Unlimited the House contends influenced the judge’s awarding of bail in criminal cases while a Louisiana state judge in Gretna.

    Turley, in his rebuttal to Schiff, accused the congressman, a former prosecutor, of arguing his case, rather than the constitutional issues that were supposed to be discussed this morning.

    “The way I heard it if you don’t like this guy … it should influence how you read the Constitution,” Turley said. “Your interpretation doesn’t depend on how you feel about someone, it doesn’t depend about how you feel about a case.”

    Turley also disputed Schiff’s statement that Porteous, while agreeing to waive the statute of limitations on some charges for which he was being investigated by the Justice Department, had not agreed to waivers on all charges – influencing federal prosecutors’ decision not to prosecute him. In fact, Turley said, Porteous signed every waiver federal officials asked him to sign, including on such charges as bribery, bankruptcy fraud and honest services fraud.

    Turley also said that the House impeachment managers are, in effect, asking the Senate to allow it a “do over,” asking the senators to consider the Honest Services violation mentioned in Article I as involving a kickback scheme, which can be prosecuted under the Supreme Court ruling, when the word kickback doesn’t appear anywhere in the article.

    Two senators, Richard Durbin, D-Ill., and Patrick Leahy, D-Vt., had questions for the two sides. Durbin wanted to know what the standard of proof should be for senators, while Leahy asked whether lying on a Senate confirmation questionnaire by itself represents an impeachable offense.

    Turley said that the standard should at the very least be clear and convincing evidence, and said that committing perjury on a confirmation questionnaire would be an impeachable offense, but Porteous is not accused of that. He warned against the Senate considering “ad hoc” charges not part of the impeachment articles reported by the House.

    Schiff said the standard, as determined by past Senate precedent, is the conscience of each individual member on whether the charges are sufficient to warrant removal. On the question of lying in a Senate questionnaire, Schiff said that, in essence, is what the judge is accused of in Impeachment Article IV for not disclosing past improper conduct as a state judge to the FBI and Senate during his 1994 Senate confirmation process.

    At 11:30, the Senate broke for its party caucus lunches. The proceedings are scheduled to resume at 1:30 p.m. – with 90 minutes of closing arguments by each side.

    A two-thirds vote by the senators voting in support of one or more of the four impeachment articles will result in the Porteous’ immediate removal from the bench and the loss of his pension. Only seven judges in U.S. history have been removed by the Senate – the last two in the late 1980s.

    Porteous is accused of receiving gifts, including cash, meals, trips and car repairs, from lawyers and a bail bonds company with business before him. His conduct is “incompatible with the trust and confidence placed in him as a federal judge,” according to the House impeachment articles.

    His lawyers say the charges are false, exaggerated or involve conduct before he became a federal judge.

    “Judge Porteous is eager to present his final argument to the entire Senate and to bring closure to this matter,” Turley said. “He has publicly acknowledged that he made poor decisions that led to the appearance of impropriety. An appearance of impropriety however is not a basis for removal from office as four appellate and district court judges in Louisiana stressed in this case.”

    The last time the Senate took up an impeachment case was in 1999 when it acquitted President Bill Clinton of two articles of impeachment. It last considered judicial impeachments in 1988 and 1989, when it approved articles of impeachment against Judges Alcee Hastings of Florida and Walter Nixon of Mississippi, who became the sixth and seventh judge removed via impeachment.

    “The possibility of removing a federal judge from office is a very serious matter, but the impeachment process is about protecting the public trust,” said Sen. Orrin Hatch, R-Utah, vice chair of the Impeachment Committee. “Thankfully, the Senate has rarely had to conduct an impeachment trial, but we will do our duty fairly.”

    Former Sen. J. Bennett Johnston, D-La., who was in the Senate when the Hastings and Nixon impeachments were taken up, said it’s an unusual process in that it requires a quorum of at least 51 senators, or the deliberations are supposed to come to a stop. Normally, only a small number of senators are on the floor when bills are being debated.

    “Senators take this very seriously, but I don’t recall it was very difficult (in the Hastings and Nixon) cases to make a decision and I don’t expect it will be difficult in this case,” said Johnston, predicting Porteous will be removed from office.

    Washington lawyer David O. Stewart, who argued the Judge Nixon case, said it was an experience like no other in his legal career.

    “First of all you’re dealing with a jury of 100, not 12,” Stewart said. “You can be startled to see a very familiar face from the evening news apparently listening to you very carefully.”

    Stewart said Porteous’ lawyers and the House managers should expect lots of questions from the senators, many of which will be going over old ground because most senators aren’t likely to be familiar with the case despite the lengthy summary provided by the impeachment committee.

    The public proceedings of the impeachment proceedings for Porteous, appointed by then President Clinton in 1994, are being televised live by C-SPAN II and can be viewed online at C-SPAN.

    Interactive timeline
    • Judge Thomas Porteous was involved in ‘Wrinkled Robe,’ a sprawling, multi-faceted FBI investigation into corruption at the Jefferson Parish Courthouse in Gretna. Learn about the investigation with this interactive timeline.

  14. Thanks for the color commentary, Frank. I’ll have to see if C-SPAN has it on archive tonight. Busy Xmas shopping today. What an absolute thrill of consumerism! (Buddha Is Rolling His Eyes)

  15. Frank Mascagni III
    1, December 7, 2010 at 4:42 pm
    Jon getting better as he is nearing his closing. Wow! Tearing up the facts/distinguishing the facts/ questioning the facts [and their weight] at the senate evidentiary hearing, to support his positions. Making point after point to show the leaps the House wants them to make to convict. Impressive. Making a silk purse out of a sow’s ear. He convinced me: behaviors questionable, improper maybe,bordering on unethical, maybe criminal[although not charged]but the proof in toto is insufficent and does not rise to the high level needed to convict. Bravo!

    ===============================================================

    Frank, I reprinted your one post simply to put my words in context. I was so impressed with Prof. Turley’s argument and his delivery that I really can’t find the words to express my admiration so I’m going to piggy back on yours. Bravo and then some!

  16. Frank Mascagni III,

    Also … thank you for all the commentary over the last few months. As a layman trying to understand all the subtleties surrounding this event, your explanations have been of immeasurable help.

    So my good man, thank you for taking the time to help us gain a deeper understanding of both the process and the real skills Prof Turley has employed. It’s a selfless act of generosity and we appreciate it.

  17. JT is indeed in good form today. Sadly, like most legislative decisions, the distinguished gentlemen and gentleladies will politely listen, nod in agreement, and then dutifully vote the decision already agreed upon earlier in the caucus meeting.

  18. mespo,

    Sadly, I believe you are right.

    However, if I may apply my rose-colored glasses for a moment … Prof Turley’s words will survive in the record and many years from now historians will look back and comment that there were still men who understood what was right and were willing to stand in front of the Legislature and speak. History will judge the actions of this Legislature and I have no doubt will find them wanting.

  19. “I served with General Washington in the Legislature of Virginia… and… with Dr. Franklin in Congress. I never heard either of them speak ten minutes at a time, nor to any but the main point.”

    ~Thomas Jefferson

    My, how far we have come — or gone.

  20. Hello fellow “Turley-treckies”: Thanks for all your kind and generous remarks.

    This whole process has been interesting to me on several levels. The client “scallawag” Judge taking free meals, paid for trips, perks of his federal employment, enjoys drinking and gambling… (Opps, sounds like I’m talking about the U.S. Senators sitting in judgment, doesn’t it?); the impeachment process ( not of interest nationally since the utterance:” I DID NOT HAVE SEXUAL RELATIONS WITH THAT WOMAN.”); the privilege of watching history live and learning a lot about the U.S. history in this area; and watching my fellow litigator and trial lawyer in action ( known Jonathan since 2008, and I introduced him then and now as the best constitutional lawyer on the planet earth).

    We were all a WITNESS (not as in LeBron and Nike) to greatness.
    However, I don’t really believe for one second (unless real, real high on cannabis) that Jon’s got a snowball’s chance in hell to get 34 votes from the group of folks.

    It appeared to me, as it did to mespo727272, that the writing was and is on the wall before this session began. Men and women in positions of great power must have to be offended by these actions of their independent contractor/employee-at-will who mislead them in the job application process and thus must sanction him; him that brought shame to THEM. This really is about THEM.

    I’ve really enjoyed my visit into your world and have enjoyed getting to know you, if even in this unnatural way. I’ve learned a great deal from all your contributions and the sometime fusses that occur between you. You have welcomed me and invited me to “come in and sit a spell and have some iced tea”. Thank you very much, Frank

  21. THE HUFFINGTON POST ONLINE 12-7-2010 @ 7:13 p.m.

    Senate Wraps Up Federal Judge’s Impeachment Trial, 1st Since Clinton
    BEN EVANS | 12/ 7/10 07:13 PM |

    WASHINGTON — The Senate wrapped up its first impeachment trial since the 1999 case against former President Bill Clinton, scheduling votes for Wednesday on the fate of a Louisiana judge accused of corruption.

    If convicted, U.S. District Judge G. Thomas Porteous would become just the eighth federal judge to be removed from office. He faces four articles of impeachment that were unanimously approved by the House in March.

    Porteous, who sat quietly before senators in the well of the Senate during arguments Tuesday, has acknowledged accepting cash and favors from attorneys and bail bondsmen doing business in his court, and filing for bankruptcy under a false name. He also is accused of lying to the Senate during his judicial confirmation.

    The Senate – which must vote by two-thirds majority to convict him – held a rare closed session late Tuesday to deliberate.

    House prosecutors told senators that allowing him to remain on the bench would erode public confidence in the courts and make a mockery of the federal judiciary.

    “The evidence demonstrates that Judge Porteous is dishonest and corrupt, and does not belong on the federal bench,” Rep. Bob Goodlatte, R-Va., said during the historic proceeding – just the 16th judicial impeachment trial in U.S. history. “He has brought disgrace and disrepute to the federal bench.”

    Defense attorney Jonathan Turley argued Porteous may have made mistakes and could be considered a “moocher” for soliciting meals and gifts. But his actions don’t come close to the “high crimes and misdemeanors” standard outlined in the Constitution for offenses such as bribery or treason, Turley said.

    “An appearance of impropriety? Is that what we’re going to substitute high crimes and misdemeanors for?” Turley said, arguing that Congress would be setting a dangerous precedent by voting to convict, in part because some of the conduct in question came before Porteous was a federal judge.

    Over months of hearings, House prosecutors laid out a damaging case against Porteous, portraying him as a heavy drinker with a gambling problem who was falling deeply into debt.

    They say he began accepting cash, meals, trips and other favors from people with business before his court, beginning as a state judge in the 1980s and continuing after he was appointed to the federal bench by Clinton in 1994.

    Two attorneys who once worked with Porteous have testified that they gave him thousands of dollars in cash, including about $2,000 stuffed in an envelope in 1999, just before Porteous decided a major civil case in their client’s favor. They also said they paid for meals, trips and part of a bachelor party for one of Porteous’ sons in Las Vegas, including a lap dance at a strip club.

    “Counsel has taken to calling it a wedding gift, as if it were a piece of china from the Pottery Barn,” House prosecutor Adam Schiff, D-Calif, said of the $2,000 cash gift. “This is at best defense counsel at his most creative.”

    Another witness, New Orleans bail bondsman Louis Marcotte, described a long-standing relationship in which Marcotte and his employees routinely took Porteous to lavish meals at French Quarter restaurants, repaired his automobiles, washed and filled his cars with gas, and took him on trips. In return, Porteous manipulated bond amounts for defendants to give Marcotte the highest fees possible, said Marcotte, who served 18 months in prison on related corruption charges.

    Turley argued that much of the behavior in question was business as usual in the New Orleans-area legal community. He said accepting cash from the attorneys was a “colossal mistake” but insisted that the lawyers were longtime friends who viewed the money as a personal matter.

    “It was not a bribe. It was not a kickback,” he said. “It was a gift, and it was dumb.”

    Turley said other charges are exaggerated, including the bankruptcy filing, which Porteous maintains he initially filed under the name “G.T. Ortous” only to avoid embarrassing publicity.

    Porteous, who turns 64 next week, was caught up in a 1999 FBI investigation that found widespread corruption in Louisiana’s Jefferson Parish. The sting netted more than a dozen convictions, but Porteous was never charged with a crime, in part, authorities said, because statutes of limitations had expired.

    The Justice Department referred a misconduct complaint to the courts. Porteous was suspended from the bench, and the Judicial Conference of the United States recommended that Congress consider impeachment.

    Porteous would be the first judge to be impeached and convicted since 1989, when two judges – Walter Nixon of Mississippi and Alcee L. Hastings of Florida – were removed from office. Hastings went on to win a seat in Congress, where he still serves.

    Clinton was acquitted by the Senate on his impeachment following the Monica Lewinsky scandal.

    Get HuffPost Politics On Twitter and Facebook!

  22. ONLINE TIMES PICAYUNE NEW ORLEANS 7:45 p.m.

    Senators put aside bickering for solemn duty in Porteous impeachment case
    Published: Tuesday, December 07, 2010, 7:34 PM Updated: Tuesday, December 07, 2010, 7:45 PM
    Jonathan Tilove

    New Orleans federal Judge Thomas Porteous stepped deeper into the annals of American history Tuesday, becoming only the 19th person to be tried by the Senate for “treason, bribery and other high crimes and misdemeanors.”

    If convicted, he will become only the eighth of those individuals — all federal judges — to be removed from office.

    It is among the rarest, if most ignoble distinctions, American democracy can bestow on a public servant.

    Statistically speaking, an American parent can far more confidently — and happily — expect a child to grow up to be president of the United States than to be impeached by the House and convicted by the Senate.

    But for all the rarefied ritual of what the Senate considers among its most solemn responsibilities, the actual event Tuesday was sorely lacking in the kind of historical drama played out before what Porteous’ lawyer Jonathan Turley described as “the world’s most unique jury.”

    No gripping drama

    On that score, Presidents Andrew Johnson and Bill Clinton, both of whom were impeached by the House and acquitted by the Senate in moments of extraordinary tension and consequence, have set the bar very high.

    By contrast, the Porteous trial, which is more interesting for the constitutional questions it raises than the narrative of Porteous’ transgressions, would be challenged to maintain an audience in a daytime drama.

    “Judge Porteous is something of a moocher,” Turley told senators, a dismissive depiction that House managers who prosecuted the case say grossly underestimates his venality in accepting gifts and favors from those who had business before him.

    That said, Porteous did manage to bring the Senate together in a brief respite from bitter partisanship. Only on exiting the Senate floor at midday for weekly caucus lunches and interviews with reporters, did the blood in the senator’s veins rise to their usually elevated levels as they inveighed for or against the deal that President Barack Obama and Senate Republicans had struck late in the day Monday on tax cuts and unemployment benefits.

    For a day the world’s greatest deliberative body looked for all the world like a classroom or perhaps an Ivy League moot courtroom, with each of the senators sitting behind his or her shiny mahogany desk.

    Silence or jail

    At the outset, the senators received the traditional warning that they must “keep silent on pain of imprisonment while the House managers present their case.”

    There were no breaches of decorum.

    Members of the Senate had earlier been reminded that a quorum — a majority of the members — had to be on the floor throughout the proceedings. At the outset there were close to 90 Senators in their seats, and never fewer than a clear majority on hand, most watching with alert attention, the occasional stifled yawn or fidgeting with a BlackBerry notwithstanding.

    It was a rare scene with more people on the Senate floor than in the public galleries above. The press gallery was nearly empty throughout. Porteous sat alongside Turley at a long curved desk set up facing the chamber. Very occasionally the judge would scribble a note on a yellow post-it note, and then stick it in front of Turley, a legal polymath who teaches law at George Washington University and has emerged in recent years as one of the most fluent analysts on cable TV.

    But mostly Porteous sat impassively through the proceedings, the light from above creating a dappled pattern on his bald pate. Porteous faced his jurors who, no doubt, were each, at some point, studying him, searching for some sense of who this was who had, for a day at least, tamed their schedules, commanded their undivided attention, and, for whatever reason, decided to press his case to the bitter end, risking a bold-faced place in American ignominy for a long-shot chance of exoneration.

    The senators were reminded that impeachment is not a “punitive” process. Porteous, who has not sat on a case for two years, and said he never plans to sit on another one, is not facing any fine or imprisonment. What he is facing is removal from office and, with that, the loss of a generous lifetime pension.

    One more year to pension

    Porteous, who turns 64 on Tuesday, has another year to reach the retirement age of 65, which would entitle him to a full judicial pension at his final salary of $174,000. If he leaves before then, he gets nothing.

    For Rep. Adam Schiff, D-Calif., who led the effort by the House managers, the whole proceeding was born out of the judge’s determination to “eke out” that last year on the job to get his retirement benefits.

    “He is a gambler, and he is gambling that he can beat the system one more time,” Schiff said.

    But Turley began the day by asking the senators to apply what he described as the political equivalent of the physician’s Hippocratic oath, and do no violence to the Constitution.

    “Nineteen (impeachment) cases have reached this body; only seven ended in conviction,” Turley said. “Your duty, first and foremost, is to do no harm.”

    Nearly seven hours later, Turley rested his case in defense of Porteous: “He did not commit treason, bribery or high crimes and misdemeanors. He committed mistakes.”

    Jonathan Tilove can be reached at jtilove@timespicayune.com or 202.383.7827.

  23. INTERESTING ARTICLE ONLINE FROM 9-15-2010

    HomeU.S. NewsWorld

    The Impeachment of Judge Porteous
    Written by Bob Adelmann
    Wednesday, 15 September 2010 08:20
    The impeachment of Judge G. Thomas Porteous of the U.S. District Court for the Eastern District of Louisiana appeared initially to be an “open and shut” case of bad behavior, with the House of Representatives voting unanimously on four articles of impeachment.

    Rep. Adam Schiff (D-Calif.), Chairman of the House Judiciary Committee Task Force on Judicial Impeachment, seemed to think so: “Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years. Litigants have the right to expect a judge hearing their case will be fair and impartial, and avoid even the appearance of impropriety. Regrettably, no one can have that expectation in Judge Porteous’ courtroom.” Schiff and Rep. Bob Goodlatte (R-Va.) were named lead impeachment managers for the upcoming impeachment trial in the Senate. Goodlatte amplified Schiff’s remarks, saying, “Today’s vote marks only the second time in over 20 years that this has occurred. However, whenever evidence emerges that an individual is abusing his judicial office for his own advantage, the integrity of the entire judicial system becomes compromised.” The Senate is expected to vote on the matter before the end of the year.

    Porteous’ difficulties first went public when the Department of Justice in 2007 concluded “that Judge Porteous may have violated federal and state criminal laws, [transgressed] controlling canons of judicial conduct, [and] rules of professional responsibility, and conducted himself in a manner antithetical to the constitutional standard of good behavior required of all federal judges.” But then the DOJ decided not to seek criminal charges in the case and referred it instead to the House of Representatives.

    Article II, Section 4 of the Constitution says, “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 says, in part, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.” Since the founding of the Republic, the House of Representatives has impeached 14 federal judges and the Senate has convicted just six of them. And only 64 times has the House initiated impeachment proceedings against any federal official, including President Bill Clinton in 1998. The House impeached Clinton on two charges, perjury and obstruction of justice, but in 1999 the Senate failed to convict and remove him from office.

    The four articles in the Porteous case are:

    Article I: engaging in a pattern of conduct that is incompatible with the trust and confidence placed in him as a Federal judge

    Article II: engaging in a longstanding pattern of corrupt conduct that demonstrates his unfitness to serve as a United States District Court Judge

    Article III: knowingly and intentionally making false statements, under the penalty of perjury, related to his personal bankruptcy filing and violating a bankruptcy court order

    Article IV: knowingly [making] material false statements about his past to both the United States Senate and to the Federal Bureau of Investigation in order to obtain the office of United States District Court Judge.

    All four articles passed the House unanimously.

    According to David O. Stewart, author of The Summer of 1787 and Impeached, and defense counsel in the last judicial impeachment trial back in 1989, the Senate isn’t likely to be so clear in rendering its verdict. He wrote in Huffington Post that each of the four articles raises important constitutional questions. He says that the case against Porteous will “turn on the meaning of high crimes and misdemeanors,’ a term that was archaic and poorly understood when adopted in 1787.” The Senate has been inconsistent in applying this standard, being opaque about whether a crime had actually been committed or whether the defendant’s conduct was impeachable or not.

    Stewart points out that Article I relates to his behavior as a state judge in the 1980s, well before he became a federal judge. Although the judge’s failure to recuse himself in cases where he was “on the take” from the defense attorneys was an “odious practice, it still provides a weak basis for removing him from a federal judgeship. Impeachment applies to abuse of a federal office, not of other offices.”

    The second article also addresses the judge’s conduct during his career as a state judge, when a bail bondsman “supposedly provided benefits [to him] in return for judicial favors.” Here is the Senate’s dilemma, according to Stewart: “If the Senate removes Porteous for actions pre-dating his federal appointment, it risks expanding [the definition of] high crimes and misdemeanors … [but] if it does not remove him, Porteous will hold a job he never would have received had [he been truthful during his confirmation hearings].”

    The third article relates to Porteous’ filing bankruptcy under a false name. As Stewart points out, “These accusations raise the question of whether a personal misstep warrants removal from office.” As he reminds his readers, “In 1999, the Senate did not remove President Clinton from office even though he gave false testimony under oath about Monica Lewinsky. Perjury about his intimate life was found not worthy of removal.”

    Article IV is a “catch-all” article in which the House combined several charges together into one. Stewart said that in “the 1989 case involving Judge Walter L. Nixon, Jr. of Mississippi … we challenged a [similar] catch-all article [successfully].”

    In sum, then, in a case that appears on the surface at least to be a “lay-down” to convict Judge Porteous and remove him from office, a

  24. SORRY, HERE IS THE COMPLETE LAST SENTENCE:

    In sum, then, in a case that appears on the surface at least to be a “lay-down” to convict Judge Porteous and remove him from office, a closer look reveals a much closer call.

  25. Hi everyone. Just got back from the Senate. Thanks for all of the kind words. Thank you Frank for your coverage of the day and observations as usual. I am going to bed. We have to be on the floor in the morning for the vote.

    Best,

    JT

  26. lol . . . “If you wise guys try one more thing, one more, I’m going to kick you out of college! No fun of any kind!”

    Perfection, Frank.

    Claire McCaskill even kinda looks like Dean Wormer.

  27. A cause for celebration on a fantastic job by Prof. Jonathan Turley and his co-counsel in protecting the U.S. Constitution as drafted by the Framers. As we say in the Bluegrass State of Kentucky ” Win, place or show, you’re still my horse.” You efforts are cause to…

  28. Buddha Is Doing The Alligator Dance

    (I’ve always been amazed that’s a real dance and not a sign to call the paramedics.)

  29. REPOTED ON C-SPAN ON IT’S WEB SITE:

    Tomorrow the Senate will continue a rare “live quorum” call bringing all Senators to the floor for impeachment proceedings against New Orleans Federal Judge Thomas Porteous. A two-thirds majority vote is required in the Senate for conviction. If convicted, Judge Porteous would become only the eighth federal judge to be removed from the bench.

  30. THE TIMES PICYAUNE NEW ORLEANS ONLINE 10:00 P.M. 12-7-2010:

    Thomas Porteous lawyer tells Senate judge made mistakes, but is no ‘grotesque character’

    Published: Tuesday, December 07, 2010, 10:00 PM
    Bruce Alpert, Times-Picayune

    After contentious closing arguments in which a lawyer for Judge Thomas Porteous accused House impeachment managers of unfairly painting his client as a “grotesque character,” senators will reconvene Wednesday to decide whether Porteous should become the eighth federal judge removed from office.

    The vote will come after closed door deliberations Tuesday night among the senators on the four articles of impeachment approved unanimously by the House of Representatives in March.

    If two thirds of the senators vote yes on any of the articles, Porteous, appointed to the New Orleans District Court in 1994 by President Bill Clinton, will immediately lose his seat on the bench, his $174,000 annual salary and his federal pension.

    Jonathan Turley, the George Washington University law professor who served as Porteous’ lead counsel, told senators that the judge made mistakes, mostly because of financial problems related to a gambling addiction. Some of it was unseemly, such as taking free lunches and other gifts, but none of his actions came close to the sinister plot of kickbacks painted by House impeachment managers, Turley said.

    “Did you ever think you would be sitting here … trying to decide if it it’s an impeachable offense being a moocher?” Turley said.

    Rep. Adam Schiff, D-Calif., the lead House impeachment manager, told senators Porteous demanded payments and gifts from lawyers and bailbonds executives to help support “a lifestyle which he couldn’t otherwise afford” that included frequent gambling at casinos. Schiff said Porteous so corrupted the system that in a complicated federal hospital case one of the parties felt a need to bring in a “crony” of the judge to its legal team because the other side already had hired a Porteous friend.

    “Everyone around the judge has fallen,” Schiff said. “The bailbondsmen have gone to jail, the other state judges he helped recruit have gone to jail, the lawyers who gave him the cash lost their law licenses and (have) given up their practices. The judge is a gambler and he is betting that he can beat the system just one more time.”

    Five senators asked questions during the more than 5½ hours of public deliberations Tuesday, but only one gave any indication of which way he is leaning. Sen. Jeff Merkley, D-Ore., asked Turley whether Porteous’ request and acceptance of a $2,000 gift from a lawyer with a case before him raised questions of “impartiality and fundamental abuse of a judge’s position and a betrayal of the public trust.”

    Turley acknowledged accepting the gift in 1999 was a mistake, for which Porteous, then five years into his term on the federal bench, has already been sanctioned by the 5th U.S. Circuit. But Turley said it was a gift made out of friendship to help defray the cost of Porteous’ son’s wedding, and was not intended as a bribe to influence his decision.

    Turley said lawyers who appeared before Porteous, while complaining that he rarely paid for his own lunch, agreed he had one of the best legal minds among Louisiana judges.

    “God, I hope not,” Schiff said in his closing argument. “If that’s the case we’re in much more serious trouble than we can possibly imagine.”

    Turley accused Schiff of trying to portray Porteous in the most negative way, assigning false motives, for instance, when he accepted free lunches and other gifts from lawyers that were allowed by Louisiana’s ethics rules. Like many human beings, he said, Porteous was struggling with debts caused by a gambling addiction, and that he routinely ruled against the same lawyers who provided him with gifts.

    “You can disagree with actions that he took, but you don’t have to turn him into a grotesque character,” Turley said. “He is not. He may be many things in the eye of some, but he was not corrupt.”

    Rep. Bob Goodlatte, R-Va., who spent an hour explaining the charges against Porteous, said the House, which unanimously approved the four impeachment articles, provided a strong case.

    “The evidence demonstrates that Judge Porteous is dishonest and corrupt, and does not belong on the federal bench,” Goodlatte said.

    Porteous sat next to his legal team during the proceedings but did not address the Senate.

    The Senate chamber, which is usually empty save for senators directly involved in a debate or discussion, had at least 60 members in attendance for most of the session, a number that in the beginning numbered close to 90 of the chamber’s 100 senators. The trial rules required a quorum of at least 51 senators at all times.

    Turley and Schiff agreed on one thing: that at a time of a busy and contentious lame-duck session it is a tribute to the Senate that so many members spent most of their day listening to the impeachment arguments.

    Senators submitted their questions in writing and they were read by one of the Senate clerks.

    Sen. Al Franken, D-Minn., asked Turley if it would be grounds for removal if Porteous had perjured himself during his confirmation hearings. Turley said it probably would be, but insisted Porteous isn’t charged with that, but rather answering no in a questionnaire asking if any past conduct could bring embarrassment to President Clinton who appointed him to the federal bench.

    It would set a terrible precedent, he said, for the Senate to remove a judge from office for conduct that mostly occurred before he became a federal judge.

    One senator won’t be voting on the four articles of impeachment.

    Newly elected Sen. Mark Kirk, R-Illinois, was excused from participating in the trial because, as he told his colleagues, he had voted for the four articles of impeachment in March as a member of the House of Representatives. Kirk said it is important Porteous be given a fair hearing and because he has already expressed his opinions on the matter through his House votes, he shouldn’t vote on whether to remove the judge from office.
    Bruce Alpert can be reached at balpert@timespicayune.com or 202.383.7861.

  31. Dear Prof. Turley and all on this website:

    This hearing/trial has been fascinating, esp to those of us not more than ordinarily familiar with such events. The signal difference between the House lawyers’ arguments and Turley’s rested, to my mind, plainly on reading the Constitution and pointing out, as Turley did, to the grave importance of this case. Turley is arguing for standards according to the Constitution; the House lawyers throw a lot of mud at the defendant. I was on a jury where we had to decide a case–nothing so momentous, assuredly–but the prosecution spent four days impugning the character of the defendant; they had no case, apart from stuff about that he was divorced, had a girlfriend, and more. I watched, riveted, the entirety of the Senate hearing. My perhaps idiosyncratic view is this: one side, in that hospital case, was unhappy; the judge is far from perfect, but I found sympathy for him. Moreover, the House’s case was personal; they hate his “morals,” and gambling, and his two vodkas. But Turley’s case, and argument, was simply on a higher plane. It was about the Constitutional requirements for impeachment of a judge, and I am convinced by his argument. I particularly loved that Turley’s crew went and got the menu from the now-famous “Beef Connection.” I thought that was a true coup de gras. The House had, to my mind, a vendetta–on a sort of moral set of grounds. I am not one to dismiss morals. But morals are not all of the standards set by the Constitution–and this seems to me to be the Big Deal between the two sides. Morals, in this case, fed a ton of emotion. Turley had to, and did to my mind, match their emotion and corrected it with intellectual grounds and real readings of the Constitution. I stand impressed. It was particularly telling that the signal underlying case, from the House, was Skilling. All I can say is, “Is this the moral basis?” There’s hardly any hero in this case; not Porteous, and not the House lawyers, who repeat and repeat themselves, and seem to have an over-affection for the word “replete.” As in, “his record is replete with lunches, gambling, gifts.” “Replete.” I know what I think is right here, and I hope Turley, his team, and his client win. Turley’s knowledge is amazing. And he has a wonderful demeanor. That’s a big deal!

  32. It will be interesting to see what kind of attention span theses Senators have with this compromise deal before them on the tax cuts etc,and I wonder how many of their constituents have called and see that they are holding this hearing and the people back home do not realizing its significance.

  33. Professor:
    You make a good case. I have enjoyed listening to you and to your take on our constitution and the intent of the founding fathers for quite some time. My son Sean who is currently 4 1/2 would appreciate you reserving him a seat in your class. He’ll see you in about 17 years.

    Keep up the good work, Sincerely, Stephan G. Patterson,….

  34. I am a taxpayer and a lawyer. Porteous is by all accounts an unethical, corrupt, gambling-addicted bum who never should have been appointed to the federal bench. Congress is free to remove him based on a constitutional process unconstrained by the technical legal arguments offered by Turley and others in his defense. As a lawyer, I want Porteous kicked to the curb, permanently. As a taxpayer, I don’t want to pay this bum’s pension, which will end up in the casinos anyway. So I hope and trust that the Senators will do the right thing and convict Porteous using any personal rationale that happens to move them in that direction.

    No lawyer (or law professor) should lobby, argue or otherwise encourage others to keep bums like Porteous in robes. There is no honor in it. Let him plead his own pathetic case.

  35. The Judiciary Committee could direct their staff or GAO to review bonding systems. The focus should include how to stop kickbacks.

    It’s not clear to me what the role of bonds is supposed to be since there is not supposed to be excessive bail and people who are dangerous aren’t supposed to be in the community.

    I think the Supreme Court should have an annual event where it sits in Congress and answers questions.

  36. Mark Patterson,

    I too wanted Porteous’ removal from the bench, although I hold the highest possible regard and admiration for Professor Turley.

    However, you—as an attorney—should fully understand legal advocacy and principled constitutional legal arguments.

  37. @Former FederalLEO – I understand legal advocacy and principled legal arguments. That is what I do for a living but I would never work on a case like Porteous’ unless (maybe) he was family. In this impeachment case there was no dispute about the facts or that Porteous should not be on the bench. Nevertheless, the defense was “not to worry, he’s only a moocher and promises not to decide any more cases.” He’s only a “moocher”? Seriously? As for Porteous’ promise not to decide any more cases, who can believe him.

    Anyway, he’s now been convicted so all is good. Maybe he will now run for Congress and form a “disgraced former judge” caucus with Alcee Hastings.

  38. 1, December 8, 2010 at 7:52 pm
    C-Span WEB SITE REPORTS:

    Senate convicts Fed Judge Porteous, removing him from Bench
    Today

    The Senate overwhelmingly convicted U.S. District Court Judge Thomas Porteous Jr. today by a vote of 90 – 6 on all four impeachment charges, thus Judge Porteous will be removed from the bench, as well as lose his annual salary and federal pension.

  39. 1, December 8, 2010 at 8:35 pm
    THE TIMES PICAYUNE, NEW ORLEANS ONLINE STORY REPORTS:
    Art. I 96-0
    Art.II 69-27
    Art. III 88-8
    Art. IV 90-6
    ———————————————————–

    Senate votes to remove Judge Thomas Porteous from office
    Published: Wednesday, December 08, 2010, 9:19 AM Updated: Wednesday, December 08, 2010, 3:55 PM
    The Times-Picayune
    By Bruce Alpert and Jonathan Tilove

    WASHINGTON –The U.S. Senate this morning approved all four articles of impeachment against New Orleans federal Judge Thomas Porteous, removing him from his lifetime seat on the federal bench and denying him his $174,000 annual pension.

    With the 96-0 vote on Article 1, Porteous became the eighth federal judge to be convicted by the Senate and removed from office through the impeachment process.
    Aside from losing his job and his pension, there is no other penalty, fine or imprisonment that attaches to his conviction.

    “Today brought closure to the long controversy over my actions as a federal district judge. I am deeply saddened to be removed from office but I felt it was important not just to me but to the judiciary to take this fight to the Senate,” Porteous said after the vote. “I am deeply grateful to those senators who voted against the articles. While I still believe these allegations did not rise to the level of impeachable offenses as a constitutional matter, I understand how people of good-faith could disagree.

    “I will now be returning to Louisiana and my family. My family has been a constant and vital source of support throughout this ordeal. I have previously apologized for the mistakes that I committed in this case. I never disputed many of the underlying facts and I previously accepted punishment in the Fifth Circuit. While I disagree with the decision of the Senate, I must now accept that judgment.”

    The first article brought by the House charged that in 1997, Porteous, serving as a federal judge, should have recused himself from hearing and deciding the Lifemark Hospitals case, failing to disclose that, as a state judge, he had a “corrupt financial relationship” with attorneys who were subsequently involved in the hospital case. His behavior, according to the article, was “incompatible with the trust” placed in him as a federal judge and met the Constitutional standard of committing the “high crime or “misdemeanor” necessary to merit his removal.

    The Senate also voted to convict Porteous on Article 2, which accused him of corruptly accepting meals, trips and other gifts from a bail bondsman while serving as a state judge. On this article, the vote was 69-27 for conviction, clearing the two-thirds threshhold. Jonathan Turley, Porteous’ counsel, had argued that the Senate should not convict Porteous for behavior that occurred before he served on the federal bench.

    On the third article, alleging that Porteous lied during his personal bankruptcy case, the Senate voted 88-8 for conviction, The chair and vice chair of the Senate Impeachment Committee — Sens. Claire McCaskill, D-Mo., and Orrin Hatch, R-Utah — voted “no” on both the second and third articles of impeachment.

    On the fourth article, alleging that Porteous misled the Senate by not disclosing during his 1994 confirmation process the corruption of which he now stands convicted, the Senate voted 90 to 6 to convict.

    Sens. Mary Landrieu, D-La., and David Vitter, R-La., voted guilty on all four counts.

    After the vote on the final article, there were several minutes of confusion and disarray as the Senate figured out whether, by virtue of its previous votes, Porteous was already disqualified from ever holding future federal office, or whether that required a separate vote.

    That latter was the case, and senators, some of whom were headed for the exits, were called back for a final roll call on the Porteous impeachment, but it was not conducted in the same formal manner as the previous four votes, in which each senator responded from behind his or her desk. The Senate then voted 94 to 2 to “forever disqualify” Porteous from federal office. The “no” votes were cast by Sen. Jeff Bingaman, D-N.M., and Joseph Lieberman, I-D, Conn.

    Rep. Adam Schiff, D-Calif., the lead House impeachment manager, told senators Tuesday that Porteous had demanded payments and gifts from lawyers and bailbonds executives to help support “a lifestyle which he couldn’t otherwise afford” that included frequent gambling at casinos. Schiff said Porteous so corrupted the system that in a complicated federal hospital case one of the parties felt a need to bring in a “crony” of the judge to its legal team because the other side already had hired a Porteous friend.

    “Everyone around the judge has fallen,” Schiff said. “The bailbondsmen have gone to jail, the other state judges he helped recruit have gone to jail, the lawyers who gave him the cash lost their law licenses and (have) given up their practices. The judge is a gambler and he is betting that he can beat the system just one more time.”

    Turley, the George Washington University law professor who served as Porteous’ lead counsel, told senators that the judge made mistakes, mostly because of financial problems related to a gambling addiction. Some of it was unseemly, such as taking free lunches and other gifts, but none of his actions came close to the sinister plot of kickbacks painted by House impeachment managers, Turley said

Comments are closed.