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
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.
I just hope that the Professor has the attention of all the Senators,We’ll soon see.
5:45 p.m. EST hearing concluded. Senate in private session to confer. Vote today or tomorrow to be announced later.
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…”.
Correction:Mrs Elizabeth Edwards.
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.
eniobob -use your computer and go to C-SPAN to see it live now.
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.
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!
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.
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.
Opportunity meets preparedness.
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.
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.
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
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.
Good luck Professor! Break a leg!
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.
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…..
Best of luck.