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. 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.

  2. 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!

  3. 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.

  4. 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,….

  5. 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.

  6. 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.

  7. 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.

  8. @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.

  9. 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.

  10. 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

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