We have filed our post-trial brief in the Senate Impeachment Trial of United States District Court Judge Thomas Porteous. The brief, linked below, presents the factual record on each of the articles of impeachment after the conclusion of the Senate trial. We are expecting final arguments to be heard in December before all 100 Senators on the Senate floor.
The brief was submitted the day before I left for France and I never got a chance to post it.
I cannot include the link to the post-trial brief of the House because the Senate has rejected the submission of the House pre-trial brief due to the inclusion of material excluded from evidence by the Senate. The House has been ordered to remove various quotations and citations to legal experts who were called by the House to support impeachment. Such testimony on the ultimate legal question is routinely excluded from trials and has never been introduced as expert testimony in a Senate trial. This was previously made clear by the Senate in this case, so the House has been ordered to resubmit its post-trial brief at a future date.
Here is the Porteous Post-Trial Brief: 10.29.10 – Porteous Post-Trial Brief
28 thoughts on “The Porteous Impeachment: Post-Trial Brief”
PAGES 7-8 CONTINUED ENTERED SEPTEMBER 10, 2008:
Links to publicly available documents:
Report by the Special Investigatory Committee to the Judicial Council of the
United States Court of Appeals for the Fifth Circuit, Docket No. 07-05-351-0085,
submitted November 20, 2007
Volume 1 of 2 Volumes of Exhibits
Volume 2 of 2 Volumes of Exhibits
Reply Memorandum to the Report by the Special Investigatory Committee,
submitted December 5, 2007
Response to Reply Memorandum, submitted December 10, 2007
Memorandum Order and Certification of the Judicial Council of the Fifth
Circuit, dated December 20, 2007
Dissenting Statement to the Memorandum Order and Certification of the
Judicial Council of the Fifth Circuit
Petition for Review of the Memorandum Order and Certification, The
Proceedings Conducted by the Special Investigatory Committee, The Fifth
Circuit Judicial Council Report, and Judge Dennis’ Dissent From the
Memorandum Order and Certification Pursuant to 28 U.S.C. § 357(A) and
Incorporated Memorandum of Law and Argument
PAGES 5-6 CONTINUED
of the Eastern District of Louisiana and the Clerk of Court for the Eastern
District of Louisiana, to take all necessary steps to carry into effect the above
orders of the Council.
In issuing this Order and Public Reprimand and executing the actions
contained herein, the Council is taking the maximum disciplinary steps allowed
by law against Judge Porteous. Any further action to remove Judge Porteous
from office and the emoluments thereof is the responsibility of Congress.
In conjunction with the issuance of this Order and Public Reprimand, the
following documents are being made available for public access:
1. Report by the Special Investigatory Committee to the Judicial
Council of the United States Court of Appeals for the Fifth
Circuit, Docket No. 07-05-351-0085, submitted November 20,
2007 and Volume 1 of 2 Volumes of Exhibits and Volume 2 of
2 Volumes of Exhibits;
2. Reply Memorandum to the Report by the Special
Investigatory Committee, submitted December 5, 2007;
3. Response to Reply Memorandum, submitted December 10,
4. Memorandum Order and Certification of the Judicial Council
of the Fifth Circuit, dated December 20, 2007;
5. Dissenting Statement to the Memorandum Order and
Certification of the Judicial Council of the Fifth Circuit;
6. Petition for Review of the Memorandum Order and
Certification, The Proceedings Conducted by the Special
Investigatory Committee, The Fifth Circuit Judicial Council
Report, and Judge Dennis’ Dissent From the Memorandum
Order and Certification Pursuant to 28 U.S.C. § 357(A) and
Incorporated Memorandum of Law and Argument and
Exhibit 1A, Exhibit 1B, Exhibit 1C, Exhibit 2A, Exhibit 2B,
Exhibit 2C, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6,
Exhibit 7, Exhibit 7A, Exhibit 8, Exhibit 9, and Exhibit List;
7. Certificate to Speaker, United States House of
Representatives and Report and Recommendations of the
Judicial Conference Committee on Judicial Conduct and
8. Crime Fraud Order dated June 21, 2004, and Crime Fraud
Order dated October 19, 2004.
This Order and Public Reprimand is effective immediately and concludes
the matter IN RE: Complaint of Judicial Misconduct against United States
District Judge G. Thomas Porteous, Jr. under the Judicial Conduct and
Disability Act of 1980 before the Council.
DONE this 10th day of September, 2008.
FOR THE COUNCIL:
PAGES 3-4 CONTINUED:
his solicitation and receipt of such cash and things of value.
Judge Porteous violated several criminal statutes and ethical canons by
presiding over In Re: Liljeberg Enter. Inc. v. Lifemark Hosps. Inc., No. 2:93-cv-
01784, rev’d in part by 304 F. 3d 410 (5 Cir. 2002). In that matter, which was th
tried without a jury, he denied a motion to recuse based on his relationship with
lawyers in the case, in violation of 28 U.S.C. § 455 and Canons 3C(1) and 3D of
the Code of Conduct for United States Judges. In denying the motion, he failed
to disclose that the lawyers in question had often provided him with cash.
Thereafter, while a bench verdict was pending, he solicited and received from the
lawyers appearing before him illegal gratuities in the form of cash and other
things of value in violation of 18 U.S.C. § 201(c)(1)(B). This conduct, undertaken
in a concealed manner, deprived the public of its right to his honest services in
violation of 18 U.S.C. §§ 1341, 1343, and 1346, and constituted an abuse of his
judicial office in violation of Canons 5C(1) and 5C(4) of the Codes of Conduct for
United States Judges.
Judge Porteous made false representations to gain the extension of a bank
loan with the intent to defraud the bank and causing the bank to incur losses in
violation of 18 U.S.C. §§ 1014 and 1344.
Judge Porteous, in his conduct described above individually and
collectively, brought disrepute to the federal judiciary.
2. The Council, pursuant to Rule 20(b)(1)(D)(ii) of the Rules for
Judicial-Conduct and Judicial-Disability Proceedings and 28 U.S.C.
§ 354(a)(2)(A)(i), orders that no new cases be assigned to Judge Porteous for two
years from the date of this Order and Public Reprimand or until Congress takes
final action on the impeachment proceedings, whichever occurs earlier.
3. The Council, pursuant to 28 U.S.C. §§ 332(d)(1), orders that Judge
Porteous’s authority to employ staff be suspended for the period of time
encompassed in paragraph 2 above.
4. The Council, consistent with 28 U.S.C. §§ 332(d)(2), directs all
judicial officers and employees within the Circuit, particularly the Chief Judge
ORDER ENTERED BY THE FIFTH CIRCUIT COURT OF APPEALS: PUBLIC REPRIMAND OF JUDGE PORTEOUS JUNE 2008: (pages 1-2)
COUNCIL OF THE FIFTH CIRCUIT
Before: Edith H. Jones, Chief Judge, U. S. Court of Appeals for the
Fifth Circuit; Jerry E. Smith, U.S. Circuit Judge; Carolyn Dineen
King, U. S. Circuit Judge; W. Eugene Davis, U. S. Circuit Judge;
Rhesa H. Barksdale, U. S. Circuit Judge; James L. Dennis, U. S.
Circuit Judge; Edith Brown Clement, U. S. Circuit Judge; Priscilla
R. Owen, U. S. Circuit Judge; Jennifer Walker Elrod, U. S. Circuit
Judge; Leslie H. Southwick, U. S. Circuit Judge; Sarah S. Vance,
U. S. District Judge; James J. Brady, U. S. District Judge; Tucker L.
Melancon, U. S. District Judge; Neal B. Biggers, U. S. District
Judge; Louis G. Guirola, Jr., U. S. District Judge; Sam Cummings,
U. S. District Judge; Hayden Head, U. S. District Judge; Thad
Heartfield, U. S. District Judge; Fred Biery, U. S. District Judge
DOCKET NO. 07-05-351-0085
IN RE: Complaint of Judicial Misconduct against United States
District Judge G. Thomas Porteous, Jr. under the Judicial Conduct
and Disability Act of 1980
ORDER AND PUBLIC REPRIMAND
WHEREAS, on June 17, 2008, the Judicial Conference of the United
States unanimously adopted the Report and Recommendations of the Committee
on Judicial Conduct and Disability concerning United States District Judge G.
Thomas Porteous, Jr.;
WHEREAS, in accordance with a recommendation contained in the Report
and Recommendations of the Committee on Conduct and Disability requesting
that the Fifth Circuit Judicial Council make a considered judgment on the
continuation or suspension of the underlying misconduct proceeding relating to
NOW, having considered the aforementioned recommendation from the
Committee on Conduct and Disability, the Council, by a clear majority vote,
takes the following action:
1. The Council hereby PUBLICLY REPRIMANDS Judge Porteous
under Rule 20(b)(1)(D)(i) of the Rules for Judicial-Conduct and Judicial-
Disability Proceedings for the following conduct that is prejudicial to the
effective and expeditious administration of the business of the courts within the
Judge Porteous repeatedly committed perjury by signing false financial
disclosure forms under oath in violation of 18 U.S.C. § 1621. This perjury
concealed the cash and things of value that he solicited and received from
lawyers appearing in litigation before him.
Judge Porteous repeatedly committed perjury by signing false statements
under oath in a personal bankruptcy proceeding in violation of 18 U.S.C.
§§ 152(1)-(3), 1621 as well as Canons 1 and 2A of the Code of Conduct for United
States Judges. This perjury allowed him to obtain a discharge of his debts while
continuing his lifestyle at the expense of his creditors. His systematic disregard
Blouise: Thanks for your generous remarks. I’m looking forward to the closing arguments being scheduled at the senate.
AA: If I understand this contest, Judge Porteous is “suspended” from accepting case assignments by the Court of Appeals through December, 2010, with pay. I believe he is trying to hold on to his lifetime pension, which I think, is lost if CONVICTED on any of the 4 articles of impeachment.
Assuming a December date, the senate has 57 Democrats, 41 Rebuplicans and 2 Independents who caucus with the Democrats. A vote of 67/100 is required to convict on any of the 4 articles. I don’t believe the vote will be along traditional party lines.
All of the senator-elects who won on November 2, 2010 will not be sworn in at the time of this proceeding, if held before Christmas. So Kentucky’s newest, Rand Paul, a republican/tea-party candidate will not be there to share his wisdom with the group.
All he has to do is resign one day before….it …is known for certain that he will be impeached….
I just noticed the irony. Judge Porteous is fighting to hold on to his $174,000 annual salary, the same amount earned by U.S. senators. Interesting…
Good to hear from you. Frank
LAST POSTING ONLINE FROM THE TIMES-PICAYNE NEWSPAPER, NEW ORLEANS, LA ON OCTOBER 9, 2010 [ ONE OF OVER 1000 ARTICLES POSTED ONLINE FROM THIS SITE]:
Judge Thomas Porteous impeachment vote on schedule in Senate
Published: Saturday, October 09, 2010, 10:00 AM Updated: Saturday, October 09, 2010, 1:07 PM
The Senate is still on track for a post-Thanksgiving session in which members will vote on four articles of impeachment against New Orleans federal Judge Thomas Porteous.
Before the session, the Senate Impeachment Trial Committee will meet to approve a “neutral” summary of the trial the panel conducted last month on the impeachment articles unanimously approved last March by the House of Representatives.
When the Senate convenes to settle the issue, the senators will hear closing arguments by the House Impeachment prosecutors, led by Rep. Adam Schiff, D-Calif., and Porteous’ lawyers, led by George Washington University Law professor Jonathan Turley.
Porteous is accused of taking gifts, including cash, trips and free meals, from lawyers and a bail bonds company with business before him. If two thirds of the senators voting approve one or more of the impeachment articles, Porteous would be stripped of his $174,000 job and lose his federal pension.
Bruce Alpert can be reached at email@example.com or 202.383.7861. Jonathan Tilove can be reached at firstname.lastname@example.org or 202.383.7827.
Just a laymans observation,the dynamics of the election I think will some how rear its head,and I dare say it may be positve.
The dems are going to try and flex their muscle on this one.
Good luck Professor.
“When oppurtunity meets preparedness”
And I you. 🙂
I trust you will continue to give us your opinions (insights) as this process goes forward. We non-lawyers are sometimes afraid to ask questions of clarification thinking that perhaps we missed something glaringly simple in the text that would have provided the answer.
You have a writing style which takes some of this very complicated wording and reworks it in terms easy for laymen to understand.
Blouise: Good afternoon, I missed you. But this Porteous case will become newswothy in the near future and we all can visit. Frank
No, I’m expressing my view that the judge’s actions, although less than those desirable of a federal judge, are not ones that would support an impeachable offense. I have previously disclosed my bias as a criminal defense trial lawyer, and my loyalty to Jon for accepting this difficult challenge.
I have a real problem with subjecting this judge to impeachment when he was not charged in either federal nor state court for any criminal violations. He apparently has not be disciplined by any regulating ethical governing body from the state of Louisiana. He was sanctioned by the jurisdicitional federal Court of Appeals for his actions/omissions.
I submit that many federal officials potentially could be subjected to impeachment, but discretion is exercised, and they are not. The lack of clear standards in the area of “impeachment jurisprudence” is troubling to me.
The senate “trial” was neither civil nor criminal nor administrative in nature (combinations of all?) and I didn’t feel like it was fair to the judge nor his defense counsel.
The problem here, I submit, is that it is really a “political” proceeding with the broad application of sometimes-adopted rules of evidence, civil and criminal procedure, use of traditional criminal law terms, cited case law and constitutional law with no clear understanding as to the applicable law.
I think that a reasonable man could argue that the “trial” was less than one that one would expect, considering the gravity of the matter. It was politically motivated by the House (they are elected political officials) submitted to the Senate (who are elected political officials) against a judge who was appointed by a President (another political offical) and subjected to a political confirmation process before the Senate. I believe that the constitutional process is valid to remove a judge for treason, bribery or other high cimes and misdemeanors, but I submit the evidence in this case fails to support impeachment.
It still is not clear to me what the real motivation was to select Judge Porteous and subject him to this rather than indictment and trial in federal or state court.
So basically what you are saying is that the judge himself was a victim of retaliation against his reputation and employment because he ruled for transparency in the bail bond business?
WOW! I have just reviewed the 195 page Post-Trial Brief filed on October 29, 2010. Not only is this document historic but it represents hundreds of hours successfully producing this work product by counsel for Judge Porteous: Jonathan Turley of Washington, D.C.; Daniel C. Schwartz, John C. Peirce, P.J. Meitl, Daniel T. O’Connor, Ian L. Barlow of Bryan Cave LLP, Washington, D.C.; Keith Miles Aurzada of Bryan Cave LLP Dallas, TX; and Brian C. Walsh Bryan Cave LLP St. Louis, MO.
I particularly enjoyed the thoroughness and the attention to detail given to the contested issues by the eight co-authors. The sections devoted to the Burden of Proof (page 26) and the Standard of Proof (pages 27-29) really bring into clarity the historic adventure that Jon and Team Porteous have undertaken. In spite of the length and breadth of the document I found it oxymoronically clear and concise and to the point. The references to the record, selected exhibits woven into the arguments were impressive and certainly support the defense effort to minimize the charged four Articles of Impeachment. Intellectually, I found the document honest and revealing and without being condescending to the House Counsel and to the Senate Committee, which will give each of the 100 Senators food for thought prior to their vote on each of the four articles. In the Epilogue (pages 187-188) the brief states: “The defense would be remiss, however, for purposes of the historical record, not to point out various procedural issues and pre-trial rulings that the defense believes prevented Judge Porteous from receiving a full and fair trial.”
Kudos to Team Porteous! I think this document is a real tribute to all the time and energy, man hours, preparation, intellect, writing skills, and passion displayed by the entire defense team and their staff in representing Judge Porteous under very difficult circumstances.
LAST POSTING ON SENATOR CLAIRE McCASKILL’S WEBSITE: SEPTEMBER 15, 2010
Impeachment Trial Committee Receives Evidence
Committee chaired by Sen. McCaskill must report to the Senate in writing a certified copy of the transcript of the proceedings and testimony taken
September 15, 2010
Pursuant to the United States Constitution, the Senate holds “the sole Power to try all Impeachments.” Impeachment trials in the Senate are rare; 15 impeachment trials have been completed over the 221-year history of the Senate, while three others terminated due to the resignation of the judges in question.
On March 11, 2010, the House of Representatives approved four articles of impeachment against Judge G. Thomas Porteous, Jr. of the U.S. District Court for the Eastern District of Louisiana. On March 17, 2010, the Senate organized for the impeachment trial of Judge Porteous. The Senate Impeachment Trial Committee is charged with receiving evidence and taking testimony on behalf of the entire Senate. The Committee must report “to the Senate in writing a certified copy of the transcript of the proceedings and testimony had and taken” by the Committee. In addition to a certified copy of the transcript of the proceedings and testimony, the Committee is authorized to report to the Senate a statement of facts that are uncontested and a summary, with appropriate references to the record, of evidence that the parties have introduced on contested issues of fact.
AA, Well said.
It is always good to come back from a vacation with something meaningful to help understand why one’s major activities and time are of value and purpose. All impeachments are important, of course, but with the sentiments that are presently being expressed about the Supreme Court overstepping its role, it is good to see that this process is viable and that it has the safeguards to protect it from being a political tool to undermine the intention of lifetime appointments. This case doesn’t get the publicity of Palin bringing cookies to Penn., but it certainly merits our attention.
reading … reading…
(Good morning, Frank)
Welcome back to the land of Senate impeachment. I trust your mind and body are refreshed to recommence this historic challenge. All the bset to you and Team Porteous! Frank
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