Bar News - January 14, 2011
Once in a Blue Moon: The Impeachment of a Federal Judge
By: Thomas Maloney
For much of the past year, US Sen. Jeanne Shaheen has played an important role in one of the rarest legal proceedings in our country: a trial on articles of impeachment brought against a sitting federal judge. The House of Representatives voted to impeach US District Court Judge G. Thomas Porteous, of the Eastern District of Louisiana, in March 2010. His impeachment trial in the Senate was just the 12th in the history of our nation, and on Dec. 8 Porteous became the eighth federal judge convicted on impeachment articles.
US District Court Judge G. Thomas Porteous, of the Eastern District of Louisiana, at his impeachment trial. On December 8, Porteous became the eighth federal judge in US history to be convicted on impeachment articles. Photo:CSPAN)
Sen. Shaheen sat on the Senate Impeachment Trial Committee, a bipartisan panel of 12 senators charged with conducting evidentiary hearings in connection with the impeachment. The Senators on the committee acted as judges during proceedings that blended trial-like procedure with appellate-style questioning. A team of six congressmen, led by Rep. Adam Schiff of California, a former US Attorney who tried public corruption cases, served as prosecutors. Porteous’s defense team was headed by George Washington University Professor Jonathan Turley, a constitutional scholar.
The evidence presented by the House featured allegations that Porteous, a recovering gambler and alcoholic, received gifts – including cash in envelopes, trips to Las Vegas, steak lunches and midday martinis, as well as a bachelor party for his son – from lawyers and bail bondsmen appearing in his courtroom. While a state judge, Porteous received kickbacks totaling over $20,000 from attorneys to whom he had assigned fee-generating administrative curatorships.
The House also charged Porteous with perjury during his personal bankruptcy proceedings. Porteous initially filed a bankruptcy petition under a false name to avoid public scrutiny, and failed to disclose numerous assets and gambling debts.
The most direct abuse of power raised by the House involved Porteous’s failure to recuse himself from a multimillion dollar lawsuit in which an attorney friend represented a party. While he had the case under advisement, Porteous accepted thousands of dollars in cash gifts from the friend to help with his personal finances. He later issued a ruling favoring the friend’s client that was reversed unanimously by a Fifth Circuit panel, which labeled the decision "inexplicable" and "close to being nonsensical."
Porteous’s receipt of improper gifts primarily occurred while he was a state judge in Louisiana, although this apparently went unnoticed by the FBI during its pre-confirmation investigation of his background in 1994. The defense team emphasized that the gifts came in small increments from individuals with whom the judge had pre-existing relationships, and were part of the courthouse culture in the area. They disputed that any sort of "quid pro quo" arrangements existed.
In 1999, Porteous was implicated in an FBI judicial corruption probe called "Operation Wrinkled Robe." A number of his former colleagues on the state bench were convicted or pled guilty to crimes and were removed from office. While the Dept. of Justice declined to prosecute Porteous, the evidence gathered against him was submitted to the Fifth Circuit Judicial Council, which suspended Porteous from active service in 2007 and referred the matter to the House for its consideration.
Sen. Shaheen and her fellow committee members were charged with assembling the evidence developed at trial into a comprehensive report for the full Senate to use in its final deliberations. On December 7, Shaheen and the rest of the committee members presented their conclusions about the case to colleagues in a rare closed session of the full Senate – no C-SPAN, no spectators. The senators then engaged in several hours of relatively free-flowing deliberations that lasted into the night.
The Senate was forced to tackle several dispositive motions filed by the defense. Porteous argued that the Senate should not consider his "pre-federal" conduct. He also challenged a number of the articles for improperly aggregating the charges against him. The four articles, which outlined the conduct charged in a narrative format, each included multiple, although related, bad acts. Porteous’s concern was that, in voting guilty on a given article, senators might actually be voting for different elements within that article – undermining the idea that two-thirds of the body had reached agreement on a given offense. The Senate rejected each of these arguments.
The defense team also urged the Senate to adopt a high burden of proof – at least a "clear and convincing" standard – given the gravity of the penalty involved. This question last arose in 1986, when the Senate considered a motion from impeached Judge Harry Claiborne to adopt this standard. The Senate rejected that request by a vote of 75-17, freeing individual senators to apply whatever burden of proof they find appropriate.
More fundamentally, the Senate was forced to decide whether the House had charged Porteous with conduct warranting removal from office. The Constitution provides that conviction through the impeachment process of "Treason, Bribery, or other high Crimes and Misdemeanors" is the standard for removal of a judge. There is no definitive list of conduct falling into the latter category, although in past cases non-criminal conduct provided sufficient grounds for impeachment. During prior impeachment trials the Senate concluded that "other high Crimes and Misdemeanors" includes "serious violations of the public trust, not necessarily indictable offenses under the criminal law. . . . [T]he focus is now on public confidence in the integrity and impartiality of the judiciary."
With these standards in mind, Sen. Shaheen voted to convict Porteous on all four articles brought forward by the House. Shaheen found the House’s evidence on each of the articles to be credible and sufficient to support conviction, and that Porteous’s actions seriously damaged the credibility of the judiciary in the public’s eyes. Not all of her colleagues agreed, however. Some accepted the defense’s arguments that those articles which focused on Porteous’s unofficial conduct, or conduct that occurred before he became a federal judge, failed to set forth impeachment-worthy offenses. Still others found that the House failed to sufficiently prove its case on certain articles.
The Senate voted 96-0 to convict Porteous on the article related to his acceptance of gifts from counsel in a case before him. He was narrowly convicted (69-27; 2/3 majority required) on an article related to his acceptance of gifts from bail bondsmen while a state judge. The Senate rendered guilty verdicts on articles related to his bankruptcy perjury and perjury during the confirmation process by 88-8 and 90-6 votes, respectively.
In a later public statement entered in the Congressional Record, Sen. Shaheen explained the reasoning behind her votes. She found that "any reasonable citizen walking into Judge Porteous’s courtroom would have ample reason to question his commitment to doing justice" and his ability to be impartial. She was "totally unpersuaded by the defense team’s argument that [Porteous’s] ‘pre-federal’ conduct should be outside the scope of [the Senate’s] deliberation." Shaheen found that behavior to have continuing import in that it still reflected on Porteous’s integrity and impartiality – or lack thereof. "No judge at any level should accept gifts that would even appear to be designed to affect his judgment or influence his decisions," she concluded.
The Fifth Circuit suspended Porteous from hearing cases in 2007, although he continued to collect his salary of $174,000 per year. His termination became effective immediately upon conviction in the Senate, and he will be precluded from collecting his federal pension.
Read the full report of the Senate Impeachment Trial Committee.
Thomas Maloney is a member of Senator Jeanne Shaheen’s legislative staff in Washington, DC. He was formerly a judicial clerk at the NH Superior and Supreme Courts and an associate at the McLane firm in Manchester.