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
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.
Buddha Is Laughing: Perhaps a few cold DIXIE beers will encourage your dance routine.
Buddha Is Doing The Alligator Dance
(I’ve always been amazed that’s a real dance and not a sign to call the paramedics.)
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…
Senate vote tomorrow on C-SPAN: as to the roll call vote: The answer my friend is blowing in the wind [Peter Paul and Mary]:
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.
Jon must have been inspired by the defense presented by Otter in Animal House when faced with a hostile audience in a kangaroo court environment: [ a little levity on this serious day]:
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
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.
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
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.
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.
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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
“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.
Frank, thanks for the live-blogging and the mention of the Dec 7 inclusion in the opening invocation. I’ll watch the vid a little later when I get to spend some time (in a block) to myself.
http://www.history.navy.mil/photos/events/wwii-pac/pearlhbr/pearlhbr.htm
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.
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.
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.
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!
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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!
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)