The fifth day of the Senate trial for United States District Court Judge Thomas Porteous starts today at 8 a.m.
Some this testimony will center on Article IV of the impeachment. I have attached our motions to dismiss Article Fourth and our general summary if you are following the case.
Judge G. Thomas Porteous, Jr.’sMotion to Dismiss Article IV
Porteous Pre-Trial Statement
Porteous Pre-Trial Statement – Exhibits
Blouise:
Once again, excellent observations! I would encourage all my fellow bloggers [who are like-minded] to write/email their U.S. Senators with our concerns about the 12 member senate report that will be coming their way by November 15, 2010. I assume many senators will be distracted by the upcoming national political elections of November 2, 2010.
It is my understanding that the report WILL NOT contain a vote by the trial committee. I would recommend that each senator review the videotape of the 5 days on CSPAN to get a a real feel for what took place.
At contest: the eight-word phrase in Article II of the Constitution, where removal from office is required for “treason, bribery or other high crimes and misdemeanors.”
Assuming Judge Porteous’ actions [personally, as a state judge and as a federal judge] offend most of the viewers of the “trial”, do they reach the constitutional standard to convict a judge that is retiring next year?
TREASON ……NO;
BRIBERY…….HE WAS NEVER CHARGED WITH THIS CRIME;
OTHER HIGH CRIMES AND MISDEMEANORS….HE WAS NEVER CHARGED.
Thoughts of an ole/old criminal defense attorney born in the 1940’s.
Thank you … additional insight is always helpful.
HERE IS AN INTERESTING ARTICLE I FOUND ONLINE AT TULANELINK.COM
SEPTEMBER 21, 2008, 2 YEARS AGO:
Critiques of the Judiciary
“The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour…”
— U.S. Constitution,
Article III, Section 1
Impeachment of Hon. G. Thomas Porteous, Jr.
Judge, Federal District Court for the Eastern District of Louisiana
In 2009, the 111th Congress will consider, and likely approve, the impeachment of Fifth Circuit Judge Thomas Porteous, who was recommended for removal by the Judicial Council of the Fifth Circuit for misconduct that included receiving gifts from attorneys who came before him, filing false statements in his personal bankruptcy case, and engaging in fraudulent and deceptive conduct concerning his debts and gambling losses. Porteous’ expulsion from the fraternity of judges is primarily based on his personal behavior. He has not been indicted for criminal misdeeds or misconduct while on the bench, nor have the attorneys who bribed him for years been subjected to any disciplinary action despite the fact that their conduct helped deprive others of the honest services of the court. As the judges, Congress and the media line up to stone a “rogue” judge, it should be recognized that this passion play is designed to convince the public that the judicial system is above reproach, an honored profession, and that only an isolated judge here and there would be caught taking a personal bribe, bending the law, or concealing an unlawful act. In reality, the doctrine of judicial immunity allows judges to engage in a wide variety of tactics to unfairly disadvantage a less-favored party and deprive them of their constitutional right to an impartial tribunal. Clearly, mechanisms of judicial accountability must be created that are independent of the judiciary and designed to enable citizens to hold judges accountable for their unlawful actions.
History on the side of accused judge; Only 7 have been removed from office
RICHARD RAINEY
September 21, 2008
U.S. District Judge Thomas Porteous admits he came to depend on alcohol to get through the day and that he was addicted to gambling. He does not deny that he submitted false statements in his personal bankruptcy, on his annual financial disclosure forms and on his application for a bank loan. He concedes that lawyer friends bailed him out of one financial jam after another over the years, even when they had cases pending in his court.
His own attorney said Porteous deserves the public reprimand he received this month from his superiors.
But Porteous now faces the prospect of the ultimate sanction, impeachment and possible removal from office, in an arena where the standard for conviction is high and the guidelines for booting a judge are open to considerable interpretation.
Federal judges are appointed for life, and the Constitution makes removal of one almost impossible. That’s to keep one branch of government from unduly influencing another. Should the House of Representatives approve articles of impeachment against Porteous, he would advance to trial in the Senate, where two-thirds of the members present must agree before he can be convicted and kicked off the bench.
To reach that point, members of Congress will have determined that Porteous ran afoul of an eight-word phrase in Article II of the Constitution, where removal from office is required for “treason, bribery or other high crimes and misdemeanors.”
It is a phrase that has long confounded scholars.
“Now, that’s been a problem for more than 200 years, and I don’t think it’s one we can solve,” said Carl Tobias, a law professor at the University of Richmond.
Porteous’ professional future rests with a special 12-member task force appointed this past week by the House Judiciary Committee. The group has until Jan. 2 to investigate, after which the full committee and then the full House could consider the case.
His superiors, on the Judicial Council of the 5th Circuit Court of Appeals in New Orleans [PDF] and the Judicial Conference of the United States [PDF], already have called for his impeachment. But Porteous, his defense team and four dissenting 5th Circuit judges say his caddish behavior is irrelevant when it comes to the Constitution. For the most part, they say, he gambled, drank and lied in his private affairs — not as a judge.
Removing him from office for what they consider private behavior could serve to tighten scrutiny of federal judges, legal analysts say. Only seven judges have been impeached and convicted in U.S. history, and only two of them for misconduct committed outside their official capacity on the bench, they said.
Porteous, 62, of Metairie, would be the third.
Wrinkled Robe scrutiny
President Clinton nominated Porteous to the federal court in 1994, after he spent 10 years as an elected judge of the state’s 24th Judicial District Court in Gretna.
By 2002, when the FBI’s Wrinkled Robe investigation of corruption at the Gretna courthouse became public knowledge, it was clear that Porteous, too, was under scrutiny. Two state judges and 12 other defendants were convicted of Wrinkled Robe crimes, but the U.S. Justice Department decided in 2007 not to charge Porteous with a crime.
Once the Justice Department backed off, the 5th Circuit’s Judicial Council took up the case against him. The council accused him last fall of making false statements during his 2001 bankruptcy and violating the Bankruptcy Court’s orders, lying on the annual disclosure statements that he filed as a judge, accepting cash and gifts from lawyers with cases in his court, lying on an application for a $5,000 bank loan and violating codes of conduct for judges.
Of those, the allegation most directly related to Porteous’ work as a judge is that he asked for and accepted money from three attorneys who were litigating a dispute about ownership of a Kenner hospital, said Arthur Hellman, a law professor with the University of Pittsburgh who has followed the Porteous case closely. As presiding judge, Porteous never disclosed his financial connections during the trial.
Still, no one has demonstrated that Porteous tilted his rulings in exchange for cash, and Porteous has denied that notion. The attorneys were longtime friends of his.
“All of my dealings with the attorneys … were as a friend to a friend,” he wrote. “No gift was given as a lawyer to a judge.”
The rest of the Judicial Council’s case against Porteous accuses him of lying on his bankruptcy forms, bank fraud, lying on his financial disclosure forms as a judge and violating the code of conduct for federal judges.
Dissenting opinions
Four judges on the 19-member Judicial Council deviated from the majority opinion. In a 49-page dissent, they argued that his conduct, however reprehensible, does not warrant impeachment.
Judges James Dennis of Monroe, James Brady of Baton Rouge, Thad Heartfield of Port Arthur, Texas, and Tucker Melancon of Marksville cautioned that Porteous had not abused his office, and that removing him would only ease the excisions of federal judges in the future.
Writing the dissent, Dennis accused the Judicial Council majority of overstepping the Constitution to create “an anomalous and eccentric definition of an impeachable offense.”
The national Judicial Conference, led by Chief Justice John Roberts, reviewed the case against Porteous as well as the dissenting opinion and agreed that his actions warrant impeachment.
Only two federal judges have been removed from office for actions outside the job, the most recent being Walter Nixon of the Southern District of Mississippi in 1989 for lying to a federal grand jury. The first was Harry Claiborne of Nevada in 1986 for tax evasion and remaining on the bench after his criminal conviction for tax evasion.
“What the Claiborne case suggests is even if you don’t have the evidence of soliciting and accepting the aid of lawyers, the other things add up to impeachable offenses,” Hellman said.
“How can you trust a person who’s willing to lie on official documents?” Hellman said.
Political intrigue
Adding to the intrigue are the political trappings of the case. Unlike a criminal trial, where a jury of citizens usually decides a case while being guided by specific law, impeachment is enacted by politicians in the House and tried by politicians in the Senate.
In addition, the four dissenting judges and Porteous were all nominated to the bench by President Clinton, a Democrat.
Of the 15 judges in the Judicial Council’s majority, 11 were nominated by Republican presidents, including 5th Circuit Chief Judge Edith Jones of Houston, a Reagan appointee; the other four are Clinton appointees.
Porteous’ case had stalled in the Democratic-controlled House after the Judicial Conference recommended in June [PDF] that Congress consider impeachment. But the 5th Circuit’s release [PDF] of previously confidential documents on Sept. 11, and the fact that Porteous is still collecting $169,300 a year in salary while he is stripped of hearing cases, likely prompted the House Judiciary Committee to form its task force, Hellman said.
“Releasing everything this time, one of their main purposes was to prod the House into taking action,” he said. “That nothing was done in June must have been very troubling to the judges.”
If the Judiciary Committee’s task force finds evidence to go through with an impeachment, the House must first decide whether the 5th Circuit’s public reprimand of Porteous and effective suspension, albeit while still collecting pay, suffices as punishment.
“That’s one of the reasons I think the suspension is an argument that’s not going to be taken very seriously at all,” Hellman said of Porteous’ continued salary. Lawmakers “don’t want any future misbehaving judges thinking they might get away with a suspension.”
Copyright 2008, The Times-Picayune Publishing Corporation
From: The Times-Picayune, New Orleans, September 21, 2008, National, p. 1. Richard Rainey can be reached at rrainey@timespicayune.com. Reprinted in accordance with the “fair use” provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.
Early on I wrote my Senator expressing my concerns about this report. I basically told him of McCaskill’s behavior and my doubts that she was capable of preparing a report that was factual and a true representation of what took place in that hearing room. After the hearings I wrote him again with the update that my opinion had not changed.
It was all I could do.
Blouise:
Here is the problem, as I see it. The group of 100 gathered senators will have a “Trial” report containing the record [testimony, exhibits, Jon’s motions (that have not been ruled upon)], the original articles and March 2010 House Report, etc. But only 7-12 senators were live witness to the 5 day “trial”. I would think the rest of the senators would look to McCaskill and those “FACT-FINDER SENATORS” for direction and guidance since, I don’t believe many, if any, will read these 1000s of pages. This committee of 12 were selected by Senator McCaskill, I think.
Maybe a summary will be prepared for the full senate. I’m concerned by what I believe will be a bare-bones summary for the senators getting up to stuff quickly.
If Jon gets 2 hours and the house counsel gets 2 hours of oral presentations, [something akin to opening/closing arguments and comment on the trial report], it will be difficult for Jon to make all his points as to each of the 4 articles.
I don’t know much about the history of the impeachment process, but I suspect a conviction on even one of the 4 articles, removes Judge Porteous from office. I just don’t know if Jon can stop this snowball that’s rollin’ down the hill. I wish him, and team Porteous, all the best!
I have cleared my schedule and marked my calender. I expect a triumph of reason over politics from the Senators. Handling Porteous is a job for the FBI and the Justice Department … if they don’t have enough smarts to build a case and prosecute then they all need to find different day jobs. The Senators must pull back from this Constitutional precipice. A conviction in the Senate will cause far greater damage to this nation than Porteous’s few more months to retirement could ever inflict.
Former Federal LEO:
Thanks, I’ve enjoyed(?) this experience. Everyone has something interesting to add to the conversation.
Based on your comments, you might want to read the article that appeared in USA TODAY page 1, 9-23-2010 dealing with the conduct of prosecutors. The site is listed below:
http://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm
Back to Judge Porteous, as my clients sometimes say : ” I Feel Ya”.
Jon has 2 hours to address the full 100 member senate after the “trial” report is completed, on or about 11-15-2010. Once again, I think convincing 1/3 [34] not to convict on each of 4 separate articles of impeachment is a task that approaches impossibility.
I, like you, wish Jon and team, all the best!
Attorney Mascagni,
You are a most welcomed and astute addition to this blawg—notwithstanding that as a former LEO I was* sometimes distrustful and disdainful of criminal defense attorneys. (*Times and my thoughts have changed since I have a somewhat better appreciation of advocacy for an otherwise unsavory and disreputable client when governmental LE dishonesty and corruption are factored into the equation).
—
While in the minority herein, I said at the outset that Porteous must be impeached and if he is not, then our system has failed. You all know that I hold Professor Turley in the highest regard and he and his team did a splendid job advocating for their ‘otherwise unsavory and disreputable client’—a scoundrel indeed. It is tough to observe someone you esteem and admire during this impeachment trial while at the same time wanting him to lose his arguments against Porteous’ eventual impeachment, even in the face of what clearly appeared to be unfair/uneven treatment given to his legal motions and objections.
What the folks at home are saying now that its over:
Judge Thomas Porteous impeachment vote expected after Thanksgiving
Published: Tuesday, September 21, 2010, 11:00 PM
Bruce Alpert, Times-Picayune
Now that the Senate impeachment trial for New Orleans federal Judge Thomas Porteous is over, the panel’s chair is predicting a vote by the full Senate later this year, probably sometime after Thanksgiving.
http://www.nola.com/crime/index.ssf/2010/09/judge_thomas_porteous_impeachm_6.html
Off-topic again as no better place in here to place suggestions to JT:
Ex-trooper who killed two seeks workers’ compensation
A rally to restore sanity could help indeed….
Reality is a state of mind.
Thank you, Blouise.
One lives to be of service.
Buddha,
A hundred years from now some historian will go through all the material while researching a book on the changes in the impeachment process. The blog of this chief defense lawyer from the year 2010 will be part of that book and I have purposely made the green guy mysterious. You are welcome.
Frank Mascagni III,
Only Buddha is imaginary … the rest of us, sad to say, are real. 🙂
I enjoyed playin’ with all my imaginary friends. Thanks for receiving and accepting the new guy on the block and letting me play with you on this historic stage. My first blogging experience and I really learned alot. Thanks, Frank
I learned a lot and I enjoyed the process so much more than I would have due to all the imput from the bloggers. Thank you Prof Turley and thank each and every one of you.
Frank Mascagni III:
” and tough audience to convince”
How right you are.
CONGRATS TO JONATHAN AND TEAM PORTEOUS DEFENSE. YOU DID YOURSELF PROUD! Difficult case, difficult facts, challenging records and exhibits, worthy adversaries, and tough audience to convince. Displayed honor and professionalism, were prepared, excellent written pleadings, good presentation of your evidence and cross of theirs. I enjoyed the good lawyerin’. Frank
LAWYERS.COM ANSWER TO QUESTION: DOES A FEDERAL JUDGE HAVE TO BE A LAWYER?
Lawyers.com
.
Federal Court Judges
The United States Constitution does not set any specific qualifications for becoming a federal judge, but most nominees are successful lawyers or state court judges. U.S. District Court judges, U.S. Courts of Appeals judges, and U.S. Supreme Court Justices are all appointed by the President of the United States and confirmed by the United States Senate. They are appointed for life. Congress sets the compensation for U.S. District Court judges, U.S. Courts of Appeals judges, and U.S. Supreme Court Justices.
Do you have to be a lawyer before becoming a judge? QUESTION AND ANSWER ONLINE 9-22-2010:
Do you have to be a lawyer before becoming a judge?
It depends on the jurisdiction. Many state judges are elected by that state’s population. When it comes to the US Supreme Court, ANYBODY can become a judge. The US Constitution does not have any educational or bar passage requirements for becoming a Supreme Court Judge. All you have to do is be nominated by the President and confirmed by the Senate as provided in the US Constitution (see Article 2, Section 2, Clause 2).
Remember that the United States is a federal republic. In other words, there are many jurisdictions, each with their own rules regarding the election or appointment of judges and other public officials.
You may not have to be a lawyer to be a judge, but you still have to convince a lot of people (or a few powerful people) that you are right for the job.
—————————————————————–
In Kentucky to run for judge in STATE court, you must be a licensed attorney. We elect state judges on 4 or 8 year terms [District, Circuit, Court of Appeals and Supreme Court]. As a lawyer you must be in good standing with the Kentucky Bar Association and therefor subject to their rules of professional conduct as an attorney. We also have a Judicial Retirement and Removal Commission, who all state judges are held accountable to.
However, in Federal court,[Western District of Kentucky at Louisville] I recently tried a case with an Assistant United States Attorney who was not a member of the Kentucky Bar Association and therefore not subject to the Rules of Professional Conduct of the K.B.A.
Judge Porteous got his J.D. from L.S.U. and I assume he is a member of the Louisiana Bar Association. Can the L.B.A. act on a complaint lodged agianst it’s member, lawyer, Thomas Porteous? I assume they can. Is a federal judge in Louisiana subject to the code of professional conduct of the state Louisiana Bar Association? I don’t know. Any Louisiana lawyers out there?
GroupThink will carry the day because the floor vote of the entire Senate will be during the heat of the election.
One more piece of clothing removed.
http://blogdredd.blogspot.com/2010/09/is-empress-taking-off-her-clothes.html