IMPEACHMENT OF JUDGE G. THOMAS PORTEOUS, JR.; Congressional Record Vol. 156, No. 160
(Senate - December 07, 2010)

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[Pages S8559-S8574]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              IMPEACHMENT OF JUDGE G. THOMAS PORTEOUS, JR.


                            Call of the Roll

  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll and the following 
Senators entered the Chamber and answered to their names:

                             [Quorum No. 6]

     Akaka
     Alexander
     Barrasso
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown (MA)
     Brown (OH)
     Bunning
     Burr
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Crapo
     DeMint
     Dorgan
     Durbin
     Enzi
     Feingold
     Feinstein
     Franken
     Gillibrand
     Grassley
     Gregg
     Hagan
     Hatch
     Inouye
     Isakson
     Johanns
     Johnson
     Kerry
     Kirk
     Klobuchar
     Kyl
     Leahy
     LeMieux
     Levin
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Schumer
     Sessions
     Snowe
     Stabenow
     Tester
     Thune
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Wyden
  Mr. REID addressed the Chair.
  The PRESIDENT pro tempore. The majority leader is recognized.
  Mr. REID. Is a quorum present?
  The PRESIDENT pro tempore. A quorum is present.


                          Court of Impeachment

  The PRESIDENT pro tempore. Under the previous order, the hour of 
10:12 a.m. having arrived and a quorum having been established, the 
Senate will resume its consideration of the Articles of Impeachment 
against Judge G. Thomas Porteous, Jr.
  The House managers and Judge Porteous and counsel will please make 
their entry before the proclamation is made.
  (The House managers, Judge Porteous, and counsel proceeded to the 
seats assigned to them in the well of the Chamber.)


                       The Judge and his counsel

       1. Judge Gabriel Thomas Porteous, Jr.
       2. Jonathan Turley
       3. Daniel Schwartz

[[Page S8560]]

       4. P.J. Meitl
       5. Daniel O'Connor


                 The House of Representatives Managers

       6. Adam Schiff (D-CA)
       7. Bob Goodlatte (R-VA)
       8. Henry C. ``Hank'' Johnson, Jr. (D-GA)
       9. Jim Sensenbrenner (R-WI)
       10. Zoe Lofgren (D-CA)


           Special Impeachment Counsel to the House Managers

       11. Alan Baron
       12. Harold Damelin
       13. Mark Dubester
       14. Kirsten Konar


                      Staff to the House Managers

       15. Jeffrey Lowenstein (Schiff)
       16. Branden Ritchie (Goodlatte)
       17. Elisabeth Stein (Johnson)
       18. Michael Lenn (Sensenbrenner)
       19. Ryan Clough (Lofgren)


                          Senate Legal Counsel

       20. Morgan Frankel
       21. Pat Bryan
       22. Grant R. Vinik
       23. Thomas E. Caballero


                              Senate Staff

       24. Derron R. Parks
       25. Thomas L. Lipping
       26. Justin Kim
       27. Rebecca Seidel
       28. Erin P. Johnson
       29. Paul Lake Dishman IV
       30. Susan Smelcer
       31. Stephen Hedger
       32. Chris Campbell
       33. Paige Herwig
       34. Stephen C.N. Lilley
       35. Justin G. Florence
       36. Matthew T. Nelson
       37. Thomas J. Maloney
       38. Nhan Nguyen
       39. Erica Suares
       40. Bryn Stewart
       41. Emily Ferris
       42. Michelle Weber
       43. Jason Bohrer
       44. Lori Hamamoto
       45. Van Luong
       46. Marie Blanco

  The PRESIDENT pro tempore. The Sergeant at Arms will make the 
proclamation.
  The Sergeant at Arms, Terrance W. Gainer, made the proclamation, as 
follows:

       Hear ye, hear ye, hear ye, All persons are commanded to 
     keep silent, on pain of imprisonment, while the House of 
     Representatives is exhibiting to the Senate of the United 
     States Articles of Impeachment against G. Thomas Porteous, 
     Jr., judge of the United States District Court for the 
     Eastern District of Louisiana.

  The PRESIDENT pro tempore. The Chair recognizes the majority leader.
  Mr. REID. Mr. President, on March 17, 2010, the House of 
Representatives exhibited to the Senate four Articles of Impeachment 
against U.S. District Judge G. Thomas Porteous, Jr., of the Eastern 
District of Louisiana. Judge Porteous was summoned to answer, which he 
did on April 7, 2010, and the House of Representatives filed a reply to 
the answer on April 17, 2010, and amended the reply on April 22, 2010.
  On the same day that the Articles of Impeachment were exhibited to 
the Senate, Members present in the Chamber were administered the oath, 
as required by the Constitution for impeachment trials. Those Senators 
who were not present to take the oath and those who had been elected to 
this body since the oath was administered, should be sworn today.
  However, before the oath is administered to these Senators not yet 
sworn, there is one preliminary matter to be addressed. The Senator 
from Illinois, Mr. Kirk, was a Member of the House of Representatives 
during this Congress when the House voted on the Articles of 
Impeachment. If the Senator wishes to make a statement about his 
participation in the Senate phase of this impeachment, this would be an 
appropriate time to do so.
  The PRESIDENT pro tempore. The Chair recognizes the junior Senator 
from Illinois.
  Mr. KIRK. Mr. President, I was a Member of the House of 
Representatives at the time the Articles of Impeachment were proffered 
against Judge G. Thomas Porteous, Jr. On March 11, 2010, I voted in 
favor of all four Articles of Impeachment in the House, as recorded in 
rollcall votes 102, 103, 104, and 105. I have given careful 
consideration to this matter and consulted with other Members of the 
Senate about the Senate's historical practice. Because I believe the 
judge is entitled to a full and fair hearing in the Senate and to avoid 
any possible conflict of interest, I have concluded that under the 
circumstances, it would be inappropriate for me to participate in the 
Senate trial and vote again on matters related to the impeachment, 
having already done so as a Member of the House of Representatives.
  Therefore, I request that I be recused from sitting as a Member of 
the Senate while it hears the matter of impeachment proceedings against 
Judge Porteous.
  The PRESIDENT pro tempore. Mr. Kirk is excused from further 
participation in this impeachment for the reasons stated.
  The majority leader is recognized.
  Mr. REID. Mr. President, I would first ask that the House managers 
and Judge Porteous and counsel will take their seats. There is no 
reason, at this time, to remain standing.


               Oath Administered to Newly Elected Members

  Mr. President, the remaining preliminary matter is to administer the 
impeachment oath to the other newly elected Members of the Senate and 
any Member of the Senate who did not take the oath when the Articles of 
Impeachment were first exhibited.
  Article I, section 3, clause 6 of the Constitution provides, in part:

       The Senate shall have the sole Power to try all 
     Impeachments. When sitting for that Purpose, they shall be on 
     Oath or Affirmation.

  The impeachment oath that was taken by Members of the Senate earlier 
in this session remains in effect. The four current Members who did not 
take the oath at that time have been so advised by the Secretary of the 
Senate. The two newly elected Senate Members also should be sworn now.

  The PRESIDENT pro tempore. Those Senators who have not taken the oath 
will now rise, raise their right hands, and be sworn.

       Do you solemnly swear that in all things appertaining to 
     the trial of impeachment of G. Thomas Porteous, Jr., Judge of 
     the United States District Court for the Eastern District of 
     Louisiana, now pending, you will do impartial justice 
     according to the Constitution and laws, so help you God?

  SENATORS. I do.
  The PRESIDENT pro tempore. The majority leader is recognized.
  Mr. REID. Thank you, Mr. President.
  The Secretary will note the names of the Senators who have just taken 
the oath, and if these Senators will now present themselves to the 
desk, the Secretary will present to them for signature the book, which 
is the Senate's permanent record of the taking of the impeachment oath 
by Members of this body.
  Mr. President, on March 17, 2010, the President pro tempore 
appointed, pursuant to S. Res. 458, Senators McCaskill, Hatch, 
Klobuchar, Whitehouse, Udall of New Mexico, Shaheen, Kaufman, Barrasso, 
DeMint, Johanns, Risch, and Wicker to perform the duties provided for 
by rule XI, the Senate's impeachment rules.
  Under the leadership of its chairman, the Senator from Missouri, Mrs. 
McCaskill, and its vice chairman, Mr. Hatch, the committee heard 5 days 
of testimony between September 13 and September 21. During that time, 
the committee heard from 26 witnesses, 14 who were called by the House 
of Representatives and 12 witnesses who were called by Judge Porteous. 
The committee also conducted pretrial depositions of four witnesses and 
admitted into evidence the testimony of a number of witnesses, 
including Judge Porteous, who had testified in prior proceedings, more 
than 300 factual stipulations and hundreds of exhibits.
  The Senate is indebted to all of the members of this committee who so 
conscientiously discharged their responsibility in this important 
constitutional matter. In addition to the committee's leadership, I 
would like to take particular note of the contribution of Senator 
Kaufman, who actively participated in the committee's proceedings, 
although his tenure in the Senate concluded before the committee filed 
the report of its proceedings in the Senate.
  The committee filed its report on November 15, and the report was 
received as Senate report 111-347. In accordance with impeachment rule 
XI, the committee certified the Senate hearing report 111-691, which 
reprints the committee's proceedings, is a transcript of the 
proceedings and testimony had and given before the committee.
  Before proceeding further, I would like to verify with the Presiding 
Officer that the evidence and the testimony received by the Senate from 
the

[[Page S8561]]

committee shall, as prescribed in rule XI:

     be considered to all intents and purposes, subject to the 
     right of the Senate to determine competency, relevancy and 
     materiality, as having been received and taken before the 
     Senate . . .

  Will the Presiding Officer advise the Senate whether this is correct?
  The PRESIDENT pro tempore. The majority leader is correct. The 
testimony and other evidence reported by the committee will be 
considered, in accordance with impeachment rule XI, as having been 
received and taken before the Senate.
  The majority leader is recognized.
  Mr. REID. Thank you again, Mr. President. Rule XI provides that the 
Senate's receipt of evidence reported by the committee is subject to 
the Senate's right to determine competency, relevancy, and materiality. 
Further, the same rule explicitly provides that nothing in it prevents 
the Senate from sending for any witness and hearing that witness's 
testimony in open Senate or, by order of the Senate, having the entire 
trial before the full Senate.
  I would ask the Presiding Officer to advise the Senator whether, 
following the report of the committee, any motions have been filed 
asking that any witnesses be heard in open Senate.
  The PRESIDENT pro tempore. In response to the majority leader, 
neither party, following the report of the committee, has moved that 
any witness be called in open Senate, and the Senate may now proceed to 
hear final arguments on the basis of the record reported by its 
committee.
  The majority leader is recognized again.
  Mr. REID. Mr. President, the parties have filed their final written 
briefs and the Senate is now ready to hear arguments.
  Prior to consideration of the Articles of Impeachment, Judge Porteous 
has requested time to present argument on three motions that take issue 
with the sufficiency under the Constitution of several aspects of the 
Impeachment Articles framed by the House. First, Judge Porteous has 
moved to dismiss Article II, or for alternative relief, based on the 
House's inclusion of allegations of misconduct occurring prior to the 
commencement of the Judge's Federal service as a U.S. district judge. 
Second, Judge Porteous has moved to dismiss article I, or for 
alternative relief, based on the House's inclusion of 
unconstitutionally vague allegations that Judge Porteous's conduct 
deprived the public of its right to the honest services of his office. 
Third, Judge Porteous objects to the manner in which each Article of 
Impeachment was framed to aggregate discrete allegations of misconduct. 
He accordingly moves to dismiss the Articles of Impeachment or seeks 
alternative curative relief. The parties' written arguments on those 
legal issues are addressed in their post-trial briefs, as well as the 
motion papers submitted by the parties to the committee, which are on 
the desks of all Members. In accordance with the unanimous consent 
agreement, each side will be permitted no more than 1 hour to present 
its argument on the motions.

  Upon the conclusion of argument on the motions, the Senate will then 
turn to hearing final arguments by the parties on the Impeachment 
Articles. Under impeachment rule XXII, final argument will be open and 
closed by the House. By unanimous consent, each party shall have up to 
1\1/2\ hours to present final argument on the merits.
  As the Senate has done in the past, we have provided that counsel may 
face the full Senate during these presentations. They should remain 
mindful, nevertheless, that the proceedings are under the direction of 
the Presiding Officer. On their part, Senators should recall that any 
questions they have of counsel should, pursuant to impeachment rule 
XIX, ``be reduced to writing, and put by the Presiding Officer.'' There 
is assistance available in the respective cloakrooms to aid Members in 
putting the questions in writing. Questions may be sent to the Chair 
during the argument, for reading by the Chair at the appropriate times.
  The managers, on behalf of the House of Representatives--
Representative Schiff, Representative Goodlatte, and Representative 
Johnson, Representative Sensenbrenner, and special impeachment counsel 
to the House Alan Baron are present at the managers' table. Jonathan 
Turley, Daniel C. Schwartz, P.J. Meitl, Daniel T. O'Connor, and Ian 
Barlow are counsel to Judge Porteous and are present with him.
  Mr. President, motions will be argued first by Jonathan Turley, 
counsel to the judge, who is the moving party. By the unanimous consent 
order, argument on the motions on behalf of the House will be divided 
between Representative Schiff and Representative Goodlatte. Mr. Turley 
may, under the unanimous consent agreement, reserve a portion of Judge 
Porteous's time for rebuttal.
  For the argument on the articles, the managers will likewise divide 
their time between the two managers, and Mr. Turley will present 
argument on behalf of Judge Porteous. Under impeachment rule XXII, the 
House will open and close final argument in the impeachment articles.
  The PRESIDENT pro tempore. We are now ready to hear motions. Mr. 
Turley will open the arguments in support of the motions to dismiss.
  Mr. Turley, how much time do you wish to reserve for rebuttal?
  Mr. TURLEY. We would like to reserve 10 minutes for rebuttal.
  The PRESIDENT pro tempore. Ten minutes. It is so ordered. You may 
proceed.
  Mr. TURLEY. Thank you. Mr. President and Members of the Senate, my 
name is Jonathan Turley, and I am the Shapiro Professor of Public 
Interest Law at George Washington University and counsel to the 
Honorable G. Thomas Porteous, Jr., a judge of the U.S. District Court 
for the Eastern District of Louisiana. Joining me at counsel's table 
with Judge Porteous are my colleagues from the law firm of Bryan Cave: 
Daniel Schwartz, P.J. Meitl, and Daniel O'Connor.
  As the majority leader has told you and as many of you know, the 
Porteous impeachment has raised a number of constitutional issues that 
are rather unique and of considerable concern among law professors and 
legislators alike. The three motions before you today are designed to 
put these issues squarely before you.
  We understand that the Members can choose not to vote on these 
motions and you can, in fact, reject an article or an allegation in 
light of these constitutional concerns. However, these are issues that 
do not turn on the facts of this case. Rather, they present threshold 
questions for each Senator in deciding whether to establish new 
precedent in the scope and the meaning of impeachable offenses.
  The first motion before you today is a motion to exclude, as a basis 
for the removal of a Federal judge, any so-called pre-Federal 
allegations; that is, conduct that allegedly occurred before Judge 
Porteous became a Federal judge. This motion primarily deals with 
article II, which is widely recognized as a pre-Federal claim and the 
focus of much discussion nationally.
  Second is a motion to exclude, as a basis for removal, that Judge 
Porteous deprived litigants and the public of the right to his so-
called honest services. The Supreme Court recently rejected that very 
theory as unconstitutionally vague. We believe the Senate should do 
likewise.
  Third, and finally, there is a motion for preliminary votes on each 
of the multiple allegations contained in the House's Articles of 
Impeachment. As we will discuss, those articles are grossly aggregated, 
meaning that each article contains numerous separate allegations. This 
long-simmering dispute between the House and the Senate came to a 
boiling point in these articles with the unprecedented use of what we 
refer to as the ``aggregation tactic.''
  Equally important to the relief that Judge Porteous is requesting is 
what he is not requesting. We have tailored these motions so we are not 
requesting the dismissal of any articles in their entirety. Instead, 
Judge Porteous requests that Senate deliberation be confined only to 
those allegations that constitute valid bases for removal under the 
U.S. Constitution.
  Throughout history, Senators have expressed their primary concern 
over the precedent set by impeachment cases and the implications of 
their decisions that are reached in this Chamber for future cases. This 
care is shown in the fact that in 19 impeachments to reach this body in 
history, only 7 ended

[[Page S8562]]

in convictions. Your predecessors accepted that the impeachment clauses 
contain an implied Hippocratic Oath under the Constitution. Your duty, 
first and foremost, is to do no harm--to do no harm--to the courts and 
to do no harm to the Constitution. Indeed, in all of the impeachment 
cases resulting in acquittal, the Senators found much to condemn in the 
conduct of the accused. They simply didn't find impeachable offenses.

  With that brief introduction, I would like to turn to the first 
motion before the Senate in which Judge Porteous asks for the exclusion 
of pre-Federal allegations.
  The first motion deals with the most dangerous aspect of the Articles 
of Impeachment. The House, through article II, and to some degree 
through article I, is seeking to have Judge Porteous removed on the 
basis of conduct that allegedly occurred before he became a Federal 
judge.
  The House's pre-Federal charges in this case are in direct 
contradiction with decades of precedent from this body and would, in 
fact, violate the text of the U.S. Constitution.
  In the history of this Republic, no one has ever been removed from 
office on the basis of pre-Federal conduct--no one.
  The pre-Federal claims are an attempt by the House to secure 
impeachment at any cost, at the cost of the constitutional standard 
itself to remove a previously disciplined judge just months before his 
retirement.
  The logic of this article is much like the story my father used to 
tell me about a man who comes across a stranger on his hands and knees 
one night looking for his wedding ring under a lamppost. He joins the 
man, searches for an hour, and then turns to him and says: ``You know, 
Mister, I don't see it anywhere. Are you sure you dropped it here?''
  And the stranger responds, ``Oh, no, no, no, I lost it down the 
street, but the light is better here.''
  Unable to find a crime during Federal service, the House managers 
just decided to look elsewhere down the road, before he became a 
Federal judge.
  It does not appear to matter that experts and the Congressional 
Research Service warned that no individual--not a President, not a Vice 
President, not a Federal judge, not a Cabinet member--has ever been 
removed on this basis.
  In order to open the Federal bench to removals for pre-Federal 
conduct, you must ignore the express language of the Constitution 
itself, which refers to conduct during Federal service, during service 
in office. A judge is guaranteed life tenure under the Constitution 
``during the behavior'' in office. It is not a standard of good 
behavior in life. It is a standard of good behavior in office. It 
requires misconduct during Federal service that justifies removal from 
that Federal office.
  The standard fashioned by James Madison and others has stood for 
centuries, largely because of the work of your predecessors, who have 
rejected articles that allege pre-Federal conduct.
  In 1912, in the impeachment of Judge Robert Archbald, the Senate 
explicitly rejected the theory of removing an individual for conduct 
occurring before he took Federal office for which the House was seeking 
removal.
  In the Archbald case, there were 13 Articles of Impeachment. The 
first six dealt with alleged misconduct in the office for which he was 
being sought to be removed. The next six dealt with conduct that 
allegedly occurred before he entered that office. And the last article 
was something that is called a ``catch-all'' provision. That combined 
all of the 12 earlier provisions into one.
  Archbald was acquitted on all six articles that focused on conduct 
prior to his assuming a seat on the circuit court. All six were 
defeated in this Chamber.
  These were not close votes, with the House receiving no more than 29 
votes for conviction on those pre-Federal articles and averaged a 
rather high 64-percent rate for acquittal. Many Senators rose to 
amplify the reasons they rejected those articles.
  Senator Bryan of Florida stated:

       I am convinced that articles of impeachment lie only for 
     conduct during the term of office being filled.

  Senator Brandegee of Connecticut stated:

       I vote not guilty because it alleges offenses, some of 
     which are alleged to have been committed by the respondent 
     while he was in an office he does not hold at the present and 
     did not hold at the time the articles were adopted.

  Senator DuPont of Delaware said:

       My vote of not guilty upon the article of impeachment was 
     based upon the fact that the offenses were alleged to have 
     been committed when he was not holding his present office.

  Senator Works of California said:

       I am of the opinion that the respondent can not be 
     impeached for offenses committed before his appointment to 
     the present office.

  Senator Catron of New Mexico said:

       I do not believe the House of Representatives had the right 
     to go back of the present office held by Judge Archbald to 
     hunt up any of his acts to charge against him so as to remove 
     him from the office he now holds.

  Senator Crawford of South Dakota stated:

       I find the respondent guilty of misconduct, but it occurred 
     before he became the incumbent in his present office. I do 
     not believe impeachment can be sustained for the reason 
     stated.

  Finally, Senator M'Cumber, North Dakota, stated:

       Impeachment proceedings cannot lie against a person for an 
     act committed while holding an official position for which he 
     is separated.

  I could read more, but I think the point is clear. The Senate 
specifically dealt with this issue of pre-Federal conduct before and 
rejected it by a large margin. A large percentage of Senators at the 
time felt strongly enough about the issue to publicly speak about the 
impropriety of seeking pre-Federal causes for removal.
  Thirty-two Senators sat out the vote on that catch-all article 13 in 
the Archbald case, and many publicly stated the reason they were 
sitting out that vote was because it contained in that whole list some 
of the pre-Federal conduct. However, the judge had already been 
convicted of six articles that contained Federal conduct. So by a vote 
of just two, with these Senators sitting out the vote, that article was 
approved.
  Article II would eradicate over two centuries of precedent, and for 
what purpose? The House alleges Federal rather than pre-Federal conduct 
in article III and article IV. Even article I has some Federal claims. 
We are eager to reach those issues, and they offer an ample basis for 
the review and, yes, possible removal of a judge without opening the 
Federal bench--and all other Federal offices--to pre-Federal attacks.
  One statement in the Archbald case stands out particularly prophetic 
and relevant. When confronted with the pre-Federal conduct, Senator 
Stone of Missouri rose to give the following warning to his colleagues, 
and by extension to you, his successors:

       It would not be difficult to conceive a case where under 
     great pressure, when the country was in the state of high 
     political excitement and when some supposed political 
     exigency was influencing a partisan public opinion, a hostile 
     partisan majority might hark back to some alleged misbehavior 
     of a judge.

  Now, one can certainly imagine a period of ``high political 
excitement'' if you tried hard enough. The point is that despite the 
rhetoric and passions of periods of great political upheaval, Senators 
have stepped forward to protect our core constitutional values and 
standards. This is why the Framers gave Senators long terms and large 
constituencies--to allow them to resist the passions and distemper of 
contemporary politics.
  Once the Senate allows the House to cross this constitutional Rubicon 
for the first time, Congress would be able to dredge up any pre-Federal 
conduct to strip the bench of unpopular judges or to remove other 
Federal officials at the whim of the House. It would raise the very 
real possibility that an unpopular opinion issued by a Federal judge or 
a Supreme Court Justice could trigger an impeachment based on alleged 
acts from decades of practice before taking office. Moreover, other 
Federal officials, such as the Vice President, or a Cabinet member, 
could be similarly confronted with pre-Federal conduct as a basis for 
removal.
  I expect my esteemed colleagues from the House to raise again a 
rather old saw that if you accept the defense's argument, the Senate 
would be precluded from removing someone who committed murder before 
taking office. Of course, an extreme hypothetical

[[Page S8563]]

like this points out the absurdity of the case against Judge Porteous. 
In this case, the Justice Department did not even find evidence to 
bring a single charge of criminal wrongdoing. Once again, the House 
simply wants to go where the light is better. In this case, it wanted 
to go to a hypothetical place.
  But to be blunt, in deference to my colleagues, I must say this is an 
nonsensical argument from a constitutional standpoint. The reason is 
that in a case of a pre-Federal murder, the judge would likely be 
subject to trial during his or her Federal term. If convicted, a judge 
would likely be sentenced to life in prison. While the crime may have 
predated his confirmation, he became a convicted felon during his 
Federal service. That is the basis for the removal. Further, the judge 
could not possibly serve in a time of good behavior given his 
conviction and presumed incarceration.
  The House, I believe, will also argue the reasons for the lack of any 
precedent of removals for pre-Federal conduct. The record is rather 
telling. There hasn't been such a case. Why? The House will argue that 
the reason is that people who are charged with pre-Federal misconduct 
simply resign if it is serious. History repudiates that argument. It is 
simply not true. A number of individuals have had information about 
misconduct in their pre-Federal lives revealed after they took office 
and yet never faced impeachment. For example, Supreme Court Justice 
Hugo Black admitted after his confirmation that he was in fact at one 
time a member of the Ku Klux Klan. There was outrage with that 
disclosure; that controversy had not been raised before confirmation.
  As our filings document, numerous other Supreme Court Justices, as 
well as a bevy of other Federal officers, have had damaging information 
of this kind revealed. Hugo Black did not face impeachment.
  This body has removed only seven judges in 206 years through the 
impeachment process and has never removed anyone for pre-Federal 
conduct.
  If you believe Judge Porteous committed removable offenses as a 
Federal judge, so be it--and he is here to be judged himself--but do so 
on that basis of the remaining articles, not on article II.
  It is a great burden and responsibility to stand before you not just 
as counsel for Judge Porteous, but as a constitutional law scholar. The 
importance of article II transcends this case and, frankly, transcends 
this judge. It is a direct attack on a constitutional standard that has 
guaranteed an independent judiciary for two centuries. Whatever you do 
today, please do no harm. Judge Porteous stands ready to be judged for 
his conduct on the Federal bench. However, like so many scholars and 
commentators, I ask you to hold the constitutional line, as did your 
predecessors, and reject pre-Federal claims as the basis for his 
removal.
  I would like now to turn to perhaps the most novel problem raised in 
this impeachment: the reliance in article I on a theory that was 
rejected by the Supreme Court after the impeachment vote in the House.
  At issue is the honest services claim that is at the heart of article 
I. Even before this impeachment, honest services claims were 
controversial in Federal court. Various judges, in fact, rejected this 
claim.
  While experts were predicting a rejection in whole or in part of the 
theory, the Supreme Court accepted three cases dealing with honest 
services. The House was fully aware those cases had been accepted by 
the Supreme Court. The House was fully aware that lower court judges 
had rejected this theory. They simply took a gamble and decided to take 
a risk and structured article I as an honest services claim. They lost 
that gamble. When the court ruled in Skilling v. United States and two 
related cases, rejecting the use of this theory in cases without 
express allegations of bribery and kickbacks, neither bribery nor 
kickbacks are alleged in article I.
  In fact, they are not mentioned in any of the articles.
  Indeed, the House's own witnesses testified that there was no such 
bribery or kickback scheme to influence Judge Porteous on the Federal--
or, for that matter, on the State--bench. House managers are now going 
to ask the Senate to cover their bad bet on Skilling and ignore that 
the stated theory of article I was rejected by the Supreme Court as a 
viable criminal claim. The dangerous implications of such a vote are 
difficult to overstate.
  The Senate has never removed a Federal judge on the basis of a legal 
theory specifically rejected by the Supreme Court. If allowed, Congress 
could remove Presidents, judges, Cabinet members on theories that they 
are barred as invalid in Federal court. Ironically, if Judge Porteous 
were presiding in that case, he would be bound by the rule of law to 
reject an indictment of a public official on this identical claim that 
is now being offered as the basis for his removal.
  House managers crafted article I around the same theory of honest 
services as was advanced by the Federal Government in the Skilling 
case. Article I alleges that Judge Porteous is ``guilty of high crimes 
and misdemeanors and should be removed from office'' because, in 
connection with a recusal motion--a recusal motion in a single case--
before him, he ``deprived the parties and the public of the right to 
the honest services of his office.''
  The House asserts that Judge Porteous caused this deprivation of 
honest services in three ways: First, that he failed to disclose 
certain information during the recusal hearing held in the so-called 
Lifemark case about his relationship with one of the attorneys in the 
case--Jake Amato--and Amato's partner Bob Creely. Second, he made 
misleading statements at the recusal hearing about his relationship 
with these two attorneys; third, that he ultimately denied a motion to 
recuse.
  Now, the reason the House did not allege either bribery or kickbacks 
became obvious when the defense was allowed to cross-examine the House 
witnesses before the Senate committee concerning article I, all of whom 
denied any bribe or kickback scheme by Judge Porteous. Faced with 
various House witnesses who insisted, universally, that Judge Porteous 
was not and could not be bribed, the House turned to a claim of ``a 
scheme or artifice to deprive another of the intangible right of honest 
services.''
  In basing its allegations on this provision of the Criminal Code--
which is title 18, section 1346--the House followed a longstanding 
precedent of crafting articles to reflect actual crimes. That, however, 
happened to be the provision that was rejected in Skilling. The House 
finalized and approved article I in March 2010. That means for months 
the House knew an honest services claim could be rejected by the court 
and decided to rely on it because it could not expressly claim a 
Federal bribe or kickback.
  The reason for the House's `honest services' gamble was obvious: 
Beginning in the early 1990s--actually more in the late 1990s--the 
Justice Department began what was called the Wrinkled Robe 
investigation. In the course of that investigation, they conducted a 
long-running grand jury investigation, with plea bargains, countless 
subpoenas and searches of judges in Louisiana. In the end, some judges 
were indicted. However, the government, which looked specifically at 
Judge Porteous, as well as some of the other judges, found the evidence 
did not support bringing an indictment against Judge Porteous for any 
crime.
  Permit me to repeat: Judge Porteous had agreed to waive the statute 
of limitations to allow the government to bring a criminal charge 
against him. He decided that it would not be appropriate for a Federal 
judge to rely on the statute of limitations to protect himself from 
criminal charge. He signed three waivers to permit those charges, even 
though they could have been blocked under the statute of limitations.
  The Department of Justice then investigated and found insufficient 
evidence to bring a charge of any kind--big or small--against Judge 
Porteous. In declining to prosecute, the DOJ specifically cited a host 
of rather fundamental problems in bringing such a case. It said that it 
did not believe it could carry the burden of proof, it did not believe 
it could secure a verdict of conviction from a jury, and that there was 
a general lack of evidence to show ``mens rea and intent to deceive.'' 
That only left the soon-to-be-rejected theory of honest services, 
without a specific charge of bribery or kickback.

[[Page S8564]]

  The House's gamble failed in June when the Supreme Court issued its 
trio of decisions, led by the Skilling v. United States decision, where 
the court directly--and by the way, unanimously--rejected the theory of 
the underlying article I. The court expressly held that absent specific 
allegations of a bribe or kickback, ``no other misconduct falls within 
the statute's province.'' In direct relevance to this case, the court 
expressly rejected the notion that ``nondisclosure of a conflicting 
financial interest can constitute criminal deprivation of `honest 
services.' '' Nondisclosure of a conflicting financial interest: That 
should sound familiar because that is article I.
  As noted earlier, article I does not include any allegation of a 
bribe or kickback. Instead, it refers to a ``corrupt scheme'' that 
existed when Judge Porteous was a State--not a Federal--judge. It 
alleges a ``corrupt scheme'' that he had with attorneys Amato and 
Creely. As we will address in greater detail in our closing argument, 
there was, in fact, no corrupt scheme. Our proof is the testimony of 
the House's witnesses, not our witnesses--the attorneys themselves who 
denied a scheme of bribery or kickback.
  The greatest irony of the House's use of the honest services claim is 
that the very concern stated by the Supreme Court was that it was so 
ambiguous that it would not give citizens notice of what it is they 
could be charged with criminally. Yet that is the same concern James 
Madison raised when crafting an impeachment standard. Madison said 
Congress should not be able to use a standard that was so vague as to 
make removal easy or to rob people of knowledge of what they could be 
removed for.
  So after the Supreme Court in Skilling rejects this very theory as so 
ambiguous, so vague it cannot be used in a Federal court, the House 
picked up that very theory and said: But we think you should use it as 
the basis to remove Federal officers--from Presidents to judges to 
Cabinet members.
  Simply put: Deprivation of honest services is the modern equivalent 
of ``maladministration.'' Many of you know that James Madison and the 
Framers rejected maladministration as a standard for impeachment. By 
the way, they also rejected corruption. The term ``corruption'' was 
viewed as far too vague to allow the Members of the Senate to remove a 
judge on that basis. So what the House is doing is taking a standard of 
honest services, which was rejected for the same reason, and 
effectively making it a standard of the United States for the basis of 
removal of a Federal judge.
  Since article I does not allege a bribe or kickback, it is 
constitutionally invalid under Skilling, and this body should not 
import that standard into the U.S. Constitution. While an Article of 
Impeachment does not have to be coextensive with a crime to be valid, 
an article must give fair notice of what conduct can result in removal. 
An impeachment speaks not just to one judge, it speaks to all judges. 
They need to know because they need to know that they can perform their 
duties without having a Damocles sword dangling over their head, not 
knowing if an unpopular decision will trigger removal. They deserve 
fair notice.
  It is worth noting that after the court's decision, Senator Leahy 
introduced a bill that was committee sponsored by Senator Whitehouse 
and former Senator Kaufman to amend the Federal honest services statute 
in response to Skilling. That bill--known as the Honest Services 
Restoration Act--would revise the honest services statute to prescribe 
what is defined as ``undisclosed self-dealing'' by a public official.
  Notably, even under the new statutory definition of honest services, 
the allegations in article I would not meet that standard any more than 
it would meet the standard under Skilling. Senator Leahy's bill defines 
``undisclosed self-dealing'' as a public official performing an 
official act ``for the purpose'' of benefiting either himself or others 
and their financial interests.

  Article I doesn't allege that Judge Porteous denied the recusal 
motion for the purpose of benefiting himself. Indeed, the House doesn't 
allege that he was at that time receiving gifts from Mr. Creely or Mr. 
Amato. Those gifts--which we will talk about later--occurred years 
before. But, of course, that is not the prior and it is not the current 
standard. The Senate must decide if a Federal judge can be removed on 
the alleged claim of a corrupt scheme despite the Supreme Court ruling.
  To allow such a removal would be to sever any connection between the 
viability of a criminal claim and the basis for the removal of a 
Federal judge. Indeed, it would establish a Federal judge can be 
removed for conduct that is demonstrably not criminal and a theory so 
vague it can't actually be used in a Federal court. The House made a 
bad gamble in Skilling. The Senate should not now make a bad gamble and 
a bad law.
  I would like now to turn to the final motion before the Senate, which 
is a defense request that the Senate take preliminary votes on the 
numerous and separate allegations in the four Articles of Impeachment. 
The House managers, in drafting these articles, used a tactic called 
``aggregation.'' It is not new. It has often been the subject of 
criticism by both Senators and scholars.
  Aggregation is a method by which House Members, when drafting 
Articles of Impeachment, can circumvent the high vote required in the 
Constitution. They can essentially remove a Federal judge even though 
less than two-thirds of you agree on any specific allegation. This is 
accomplished by combining different claims in one article so that no 
single act is subject to a stand-alone vote. By lumping together or 
aggregating issues, you can secure total votes even if only 5 or 10 
Senators might agree that any given act is sufficient to remove a 
Federal judge. That negates article I, section 3, which says ``no 
person shall be convicted without Concurrence of two-thirds of the 
members present.''
  The aggregation tactic converts this exacting process into an 
undefined and fluid process where neither history nor the public will 
know what was the grounds by which you removed a Federal judge.
  Let me try to explain this with an example. Let's say you go back 
into your deliberations and 20 of you might agree that one allegation 
in a particular article was worthy of removal, while another 30 might 
reject that allegation but agree on a different allegation as 
sufficient for removal. Two other groups of Senators of 10 might focus 
on a third and fourth allegation. When it came to the final vote, you 
would have 70 Senators voting for removal even though no more than 30 
actually agree on what should be the basis for removal--what actually 
satisfied the constitutional standard.
  One does not have to be a strict constructionist to see the violence 
that approach does to the express language of the Constitution. 
Honestly, do Members of this body believe the Framers would establish a 
two-thirds majority vote to remove a Federal judge but allow a House to 
simply aggregate and achieve that with just 20 or 30? The Framers of 
the United States might have been many things, but they were not stupid 
and they were not frivolous. They created a two-thirds vote for a 
purpose. They wanted two-thirds of you to agree together that at least 
one act committed by a Federal judge is sufficient to satisfy this 
extraordinary measure of removal. Such aggregation of claims wouldn't 
even be allowed in a criminal or a civil trial. A judge wouldn't permit 
it. This judge wouldn't permit it.
  Senators have repeatedly objected to the aggregation of claims in 
past cases. However, the House knows Senators are reluctant to dismiss 
an article that has been duly submitted by the House. It is a game of 
constitutional chicken. They aggregate knowing that it would be 
difficult institutionally to simply dismiss an article, and for that 
reason we are not asking you to do that. All we are asking for you to 
do is to take preliminary votes on the separate allegations that have 
been combined in these articles to assure for yourself and for history 
that the constitutional standard has been met.
  The House itself has conceded that the Senate can, in fact, do this--
and conceded it may be necessary to do this--when we last had this 
discussion before the committee and Chairman McCaskill. Congressman 
Schiff stated at that time:

       The Senate can, when it deliberates, say we want to have a 
     separate vote internally

[[Page S8565]]

     on each of the facts that are alleged in article I, on each 
     of the facts that are alleged in article II. You can make 
     that decision and, if the vote internally is that you don't 
     agree, and you have a further discussion and say, well, 
     unless we agree on these pieces we don't think the conduct 
     rises, you can make that decision.

  You will find that quote on page 1861 in the green books before you. 
Congressman Schiff further noted that:

       You will have every opportunity when the evidence is 
     provided to you to vote on it in any way, shape or form you 
     decide. Nothing we do here will prejudice that.

  Later in the hearing, when Senator Klobuchar asked Congressman Schiff 
whether ``we could decide on our own to individually vote on each one 
or both of them as a group, and would we be allowed to do that,'' 
Congressman Schiff said ``That's exactly right, Senator.''
  I commended Congressman Schiff because I believe that is an honorable 
and correct position. We would encourage, however, that those votes be 
made public. I say this not as much for the interest of my client as in 
the interest of history. What you say this week will speak to the 
remaining judges on the bench, and you should speak clearly as to what 
you think is sufficient to remove a Federal judge.
  I also want to mention that the need for clear records is 
particularly important in this case because there was no criminal trial 
in this case. This is the first modern impeachment to come to you as a 
body without a prior trial and, more important, a prior trial record so 
the evidence, the witnesses in this case were not subject to the 
procedures and review of a criminal case. It was raw evidence that came 
in. For that reason, you will be the first to evaluate this evidence in 
terms of an impeachment that did not occur in a criminal case, and we 
believe that in light of that, you should take particularly strong 
steps to isolate what it is that will be the basis for removal or 
acquittal.
  I have to point out that the problems of the House were unnecessarily 
created by itself, not by this body and not by the defense. The House 
decided to abandon good practices in the drafting of articles, good 
practices that were applied in prior cases. For example, in the 
Hastings impeachment case, where some of you, in fact, were involved, 
if you recall, there were 17 Articles of Impeachment. Each of those 
articles isolated one false statement that Hastings allegedly made. 
Articles II through XIV were all short and they were largely identical. 
The first and third paragraphs of those articles were, in fact, 
identical. The only difference was the specific false statement. The 
House did that so you would have the opportunity to say--to vote 
whether you believed this was a false statement and whether that 
specific statement justified removal. That has been the approach of the 
House in prior cases.
  It is correct, and I believe the House is likely to mention, there 
are some prior cases that have multiple claims, but those are different 
from an aggregation case. As I mentioned before, on some occasions, the 
House has submitted to you what is called a catchall provision, so what 
they would do is they would have, for example, six articles of 
impeachment, with specific acts that they believed should be subject to 
removal, and then the seventh article was a catchall article that 
combined all the previous alleged acts. The difference between this and 
a catchall provision is that you or, in this case, your predecessors 
had the ability to vote on those first six claims so you knew as a body 
if in fact two-thirds of you agree that any of those prior six actually 
did occur and actually did constitute removable conduct. That is not 
the case with aggregation.
  What we are suggesting today is a simple process that we believe 
would protect the constitutional standard in this body, not just in 
this case but in the future. We have suggested that you simply vote 
preliminarily, as was discussed with Congressman Schiff, on each of 
these insular allegations. If you look at our motion, we have laid them 
out. There is not a great number in each of the articles. But you could 
vote simply on those specific allegations and determine if two-thirds 
of you agree that, first, they occurred and that you believe they would 
be the basis for removal.
  You would then vote on the article as a whole, in compliance with 
rule XXIII. Rule XXIII requires you to take a final vote on an article 
that has not been divided. But by the time you took that vote, you 
would know whether the standard of the Constitution had been satisfied.
  As we note in our filing--and I will not take your time by quoting 
them again--many Senators have objected to the aggregation of claims in 
history. In the Archbald indictment, for example, George Sutherland of 
Utah objected to his colleagues and stated, in exasperation: ``I cannot 
consistently vote upon this article one way or the other,'' because of 
aggregation.
  The PRESIDENT pro tempore. The Chair would like to advise you that 
you have consumed 40 minutes.
  Mr. TURLEY. Thank you very much, Mr. President. As a law professor, I 
am trained to speak in 50-minute increments. I will try to wrap-up.
  In conclusion, I ask that the Senate adopt this simple approach to 
deal with aggregated claims. We have suggested this way to deaggregate 
the claims. We believe it is useful, not in just this case but in 
future cases.
  We would like to reserve the remainder of our time for rebuttal.
  Thank you very much.
  The PRESIDENT pro tempore. I thank you very much. The Chair has not 
received any written questions. Accordingly, the Senate will now hear 
from Representative Schiff in opposition to the motions.
  Representative Schiff.
  Mr. Manager SCHIFF. Mr. President, Members of the Senate, I am 
Representative Adam Schiff of California. I am joined by fellow House 
managers Bob Goodlatte of Virginia, Jim Sensenbrenner of Wisconsin, and 
Hank Johnson of Georgia, as well as our counsel, Alan Baron, who has 
been assisted by Mark Dubester, Harry Damelin, and Kirsten Konar.
  When the impeachment trial began in this case some weeks ago, we 
acknowledged the historic significance of an impeachment proceeding and 
how rarely they are undertaken. This is for good reason. The 
overwhelming majority of men and women appointed to the bench have 
great integrity and uphold the enormous trust the public places in 
them. Very seldom does someone corrupt get nominated for the bench and, 
in those cases where a significant problem is discovered during the 
confirmation process, most withdraw from further consideration or their 
confirmation is denied. It is very rare that a corrupt official is 
nominated and his corruption escape discovery until after he is 
appointed, but it does happen. It happened here with the appointment of 
G. Thomas Porteous, who is not only a corrupt State judge but would 
become a corrupt Federal judge as well.
  By means of the impeachment and removal process, the Framers of the 
Constitution sought to protect the institutions of government by 
allowing Congress to remove persons who are unfit to hold positions of 
trust. As Alexander Hamilton noted when referring to jurisdiction to 
impeach an official in Federalist 65: ``There are those offenses which 
proceed from the misconduct of public men or, in other words, from the 
abuse or violation of some public trust.''
  The charges against Judge Porteous here, in the view of the House of 
Representatives, are precisely that, abusive and violative of the 
public trust, and he must be removed.
  As a Federal district judge in New Orleans, the first proceedings 
against Judge Porteous began before a disciplinary panel of the Fifth 
Circuit Court of Appeals. After taking evidence and conducting 2 days' 
worth of hearings in which Judge Porteous testified under a grant of 
immunity, the Fifth Circuit concluded that Judge Porteous's misconduct 
``might constitute one or more grounds for impeachment'' and referred 
the matter to the judicial conference of the United States headed by 
Chief Justice Roberts. The Chief Justice, in conference, also concluded 
that impeachment may be warranted and referred the case against Judge 
Porteous to the House of Representatives. The case was also recommended 
for potential impeachment by the Department of Justice which, in part, 
because the statute of limitations had run on many of Judge Porteous's 
offenses, felt that impeachment might be the more appropriate remedy.

  Although Judge Porteous signed an agreement when in discussions with 
the Justice Department, it did not reset the clock on the vast majority 
of

[[Page S8566]]

potential charges, from the kickbacks from the lawyers or the bail 
bondsmen, corrupt activity, which were already time-barred from 
prosecution. In the House Judiciary Committee, we undertook a thorough 
investigation, interviewing a great many witnesses, taking depositions, 
acquiring documents never found by the Justice Department, including 
the very revealing transcript of the recusal hearing in the hospital 
case mentioned by my opposing counsel, where Judge Porteous so 
grievously misled and deceived the parties. At the conclusion of our 
investigation, the Committee considered carefully whether Judge 
Porteous's conduct was so morally repugnant, so violative of public 
trust, and whether he had so demeaned himself in office that he was 
guilty of high crimes and misdemeanors and should be removed from the 
bench.
  Unanimously, the committee concluded he was guilty of high crimes and 
misdemeanors and must be impeached.
  Our committee then studied the very issues implicated in this 
morning's three motions to dismiss. We considered carefully how many 
articles should be crafted, whether his conduct naturally divided 
itself into coherent schemes and, if so, how many, so as to give the 
public clear knowledge of what he was charged with and to give Judge 
Porteous a fair opportunity to defend himself and to give the Senate 
clear articles to vote upon. We concluded that the judge's conduct 
could be divided quite logically into four parts: One article based on 
his corrupt scheme with the lawyers, one article based on his corrupt 
scheme with the bondsmen, one based on his false bankruptcy petition, 
and one based on his deception of this very body, the Senate. We did 
not wish to pile on charges against Judge Porteous by dividing any of 
these articles into unnatural pieces, something a prosecutor might 
refer to as ``loading up'' an indictment.
  There were other charges we considered as well, the evidence of which 
was introduced at trial, such as his many serious false statements on 
mandatory judicial disclosure forms, but opted instead to introduce 
that as evidence of his willingness to perjure himself when it suited 
his interests, something very relevant to both his statements to the 
Senate and in the bankruptcy proceeding.
  The House has great discretion in how it drafts an Article of 
Impeachment, which is why the Senate Impeachment Trial Committee in 
this case ruled against precisely this same motion counsel makes only 2 
months ago, finding that the schemes charged were very straightforward.
  We also considered whether a charge of a violation of a specific 
criminal statute, that the judge violated 18 U.S. C, section X,Y or Z, 
but rejected that approach. Most impeachments do not charge specific 
crimes, some charge no crimes at all, and impeachment precedent is very 
clear--no particular statute need be referenced, only the conduct that 
constitutes a high crime or misdemeanor, which is why, as I will 
explain later, Judge Porteous's motion to dismiss article I, claiming 
that it charges a violation of 18 U.S.C. section 1346, is so fatally 
flawed. The article charges no such violation of that statute and, 
indeed, makes no reference to that code section whatsoever.
  The House Judiciary Committee considered how to view the illicit 
conduct of Judge Porteous, not only while he was on the Federal bench 
but prior to his appointment, and, indeed, during the very confirmation 
procession itself. We concluded we could not ignore the judge's corrupt 
prior conduct or his conduct during the confirmation because it was so 
interwoven with his corruption on the Federal bench. His deplorable 
handling of the hospital case while a Federal judge, his lies during 
the recusal hearing, his hitting up the lawyers for cash--the very 
reason the lawyer was brought into that hospital case to begin with. 
Although all that conduct occurred while Judge Porteous was on the 
Federal bench, none of it can be fully understood without considering 
the judge's prior conduct in relationship with those same attorneys.
  It was also the unanimous view of the Judiciary Committee that, 
whether a high crime or misdemeanor occurs before or after someone is 
appointed to the bench, if it is such a violation of the public trust 
that the institution of the judiciary will be harmed, that the public 
will lose confidence in the decisions of the court and of that judge, 
then he must be impeached. To reach the opposite conclusion would be to 
countenance a continuing injury to the judiciary, which would be forced 
to retain judges proved to be corrupt. Even where a judge is indicted 
and convicted on conduct that occurred before his appointment, the 
Senate would be powerless to remove him from office or from lifetime 
salary though he sits in prison. Nothing in the language of the 
Constitution or 200 years of precedent supports such an absurd result.
  This was the unanimous view not only of the House Judiciary 
Committee, but when the matter was brought before the full House, it 
was the unanimous view of that body as well.
  The Senate can decide to convict Judge Porteous on articles I, II, 
and III on the basis of corrupt conduct on the Federal bench alone, if 
it chooses--and count 4 addresses the concealment and false statements 
to the Senate during the confirmation itself--or the Senate may, as I 
will discuss later, convict Judge Porteous on the basis of his prior 
conduct as well consistent with the Constitution, with precedent, with 
a considered opinion of experts, and with sound public policy reasons 
as well.
  But first, let me turn to each of the judge's three motions. In 
considering Judge Porteous's motions to dismiss, let me begin with a 
discussion of his arguments that the charges against him are improperly 
aggravated. In order to do so, it may be useful to provide a brief 
summary of the evidence charged in each article so that the full Senate 
can see, just as the Senate Impeachment Trial Committee concluded, that 
the House was well within its discretion in how it drafted the 
articles. Each contains a coherent scheme of conduct giving the judge, 
the Senate, and the public a clear understanding of the charges against 
him, and the motion must be denied. It is also worth pointing out, as 
the Senate Impeachment Trial Committee report demonstrates so clearly, 
none of the really salient facts in this case are in dispute.
  Article I. Article I alleges and the evidence at the trial has now 
established that Judge Porteous, while a State judge, initiated and 
implemented a corrupt kickback scheme with attorney Robert Creeley and 
his partner, Jacob Amato. The essence of the scheme was that Judge 
Porteous, in his judicial capacity, assigned curatorship cases to 
Creeley, and thereafter the firm of Amato & Creeley gave Judge Porteous 
approximately half of the legal fees generated by those cases. A 
curatorship is a small case where the appointed lawyer represents a 
missing party and has to do some minor administrative work. The 
payments to the judge were always made in cash, as Amato testified at 
trial, to avoid a paper trail. Contrary to what counsel has just 
represented, Amato testified that it was a classic kickback scheme.
  Prior to Judge Porteous's initiation of this curator kickback scheme, 
he had asked Creeley for small sums of money from time to time. Creeley 
gave him the money until Judge Porteous asked for larger amounts--$500 
or $1,000 at a time. At this point, Creeley balked. It was then that 
Judge Porteous began assigning Creeley the curatorships and seeking the 
cash back from Creeley and his partner, Amato.
  The evidence is undisputed that Judge Porteous assigned Creeley over 
190 of these cases from 1988 to 1994, resulting in fees to the firm of 
about $40,000. Both Creeley and Amato independently estimated they gave 
Judge Porteous a total of about $20,000 in cash. They both testified 
that they understood that the cash they gave Judge Porteous was funded 
by these curatorships.
  By initiating and implementing this curatorship kickback scheme, 
Judge Porteus abused his position of trust as a judge by corruptly 
taking actions in his official capacity designed and intended to enrich 
himself. This is judicial misconduct and abuse of power, and it is most 
venal. But this was only the beginning of Judge Porteous's egregious 
misconduct. It gets worse.
  Thereafter, when Judge Porteous became a Federal judge, he presided 
over a complex, high-stakes, nonjury case. You will hear it referred to 
as the Liljeberg case, the hospital case.

[[Page S8567]]

Amato enters his appearance in this case as an attorney for the 
Liljebergs. Even though this case has been around for years--tens of 
millions are at stake--he enters the case 6 weeks before trial.
  When opposing counsel filed a motion to recuse Judge Porteous, 
because he was concerned about the late introduction of this attorney, 
seeking that Judge Porteous reassign the case to another judge based on 
what counsel understood to be the judge's close relationship to Amato, 
Judge Porteous deliberately misled counsel and the parties, concealing 
his previous corrupt financial relationship that had existed between 
himself, Amato, and Creeley.
  In fact, Judge Porteous did something much worse. The transcript of 
that hearing was truly revealing and sets forth a series of misleading 
statements, half-truths, and outright lies by Judge Porteous. As but 
one example, Judge Porteous steered the colloquy of a discussion of 
whether Amato had ever given Judge Porteous campaign contributions. In 
that discussion, Judge Porteous stated:

       The first time I ran, 1984, I think is the only time when 
     they gave me money.

  That statement was clearly false and deceptive and concealed many 
thousands--indeed, tens of thousands of dollars--in cash that Amato and 
his partner had given Judge Porteous.
  Judge Porteous denied the recusal motion, and the order was appealed. 
The court of appeals, based on the false record Judge Porteous had 
created, affirmed the denial. So counsel for the other party, Lifemark, 
was unwillingly forced to represent his client against an opposing 
counsel who had given Judge Porteous thousands of dollars as part of a 
corrupt scheme.
  In one of the most appallingly corrupt acts among many by Judge 
Porteous, after the case is tried but has not been decided--and again, 
a nonjury case; the judge is the trier of fact as law--the judge 
solicits and receives a secret cash payment of $2,000 from Amato.
  Amato would testify during the Senate trial that it was the worst 
decision of his life and would acknowledge that he worked on this case 
for 2 years, stood to make $500,000 to $1 million in fees if he 
prevailed, and if he lost, he would make nothing, and that this was one 
of the reasons he gave the judge the cash--because the judge was 
presiding over this very important case.
  Judge Porteous decides the Liljeberg case very favorable to Amato's 
client. This decision is later reversed in scathing terms by the U.S. 
Court of Appeals for the Fifth Circuit in an opinion by the appellate 
court which characterized Judge Porteous's central rulings as 
``inexplicable,'' ``apparently constructed out of whole cloth,'' and 
``close to being nonsensical.''
  Not until the case was long over and the parties had moved on would 
they learn that the lawyer for the prevailing side at trial had given 
the judge thousands in secret cash.
  That is article I.
  Article II alleges and the evidence has shown that Judge Porteous, 
while a State judge and extending into his tenure as a Federal judge, 
had a corrupt relationship with local bail bondsman Louis Marcotte and 
his sister Lori Marcotte. The essence of the relationship was that 
Judge Porteous would take official acts to financially benefit the 
Marcottes by setting bail in amounts that they requested to maximize 
their profit--not in the best interest of the public, not what was 
necessary to secure the defendant's appearance in court but would 
maximize their profit. In addition, he would set aside the criminal 
convictions of the Marcottes' employees.
  The way the bond arrangement worked was this: Louis Marcotte would 
interview the defendant and their family to figure out the most 
expensive bond they could possibly afford and would ask Judge Porteous 
to set the bond at precisely this amount, and the judge would do so. If 
the bond was set too low, below what the family could afford, Marcotte 
would lose money. If the bond was set too high, then the defendant 
could not use Marcotte at all, and Marcotte would lose money. It had to 
be set just right to maximize their profit. And Judge Porteous was 
their go-to bond-setter.
  Although other judges would later go to jail for precisely this same 
relationship with the Marcottes, Louis Marcotte testified at the Senate 
trial that no one--no one did more for them than Judge Porteous. And 
Marcotte said further that the more they did for Porteous, the more he 
did for them.
  The Marcottes supported Judge Porteous's lifestyle in numerous ways. 
In response to Judge Porteous's request, they frequently took Judge 
Porteous out to expensive restaurants, paying for his food and copious 
amounts of liquor. They sent their employees to pick up his cars at the 
courthouse, repair them, fill them up with gas, detail them, and leave 
buckets of shrimp or bottles of liquor in them when they were done. 
They sent their employees to his house to do home repairs, where they 
spent 3 days repairing 85 feet of damaged fence--digging the holes, 
laying the concrete, picking up the fence boards, doing the 
construction. And they paid for one or more trips to Las Vegas for the 
judge and his secretary.

  As we proved during the trial, Judge Porteous was also asked by Louis 
Marcotte to expunge or set aside the felony convictions of two Marcotte 
employees so they could be licensed as bail bondsmen. Judge Porteous 
obliged but, significantly, told Marcotte that he would not set aside 
one of the convictions until after Senate confirmation of his position 
as a U.S. district judge because Judge Porteous did not want to 
jeopardize what was, in the judge's words, his lifetime appointment. In 
essence, Judge Porteous told Marcotte that he would set aside the 
conviction but that he needed to hide the corrupt relationship from the 
Senate. In fact, this is exactly what he did. Shortly after Senate 
confirmation but before he was sworn in as a Federal judge, Judge 
Porteous did, in fact, set aside the conviction of Marcotte's employee. 
It had to be done precisely then, after confirmation, so you would not 
learn about it, but before he was sworn in because once he was sworn 
in, it was too late, he could no longer expunge the conviction.
  What the articles allege and the evidence establishes is that this 
was a classic quid pro quo relationship between a judge with his hand 
out and a corrupt bondsman who was willing to pay for what the judge 
could do for him.
  Judge Porteous's corrupt relationship with the Marcottes did not come 
to an end after Judge Porteous became a Federal judge, although he no 
longer had the power to set bonds or expunge convictions for the 
Marcottes. The Marcottes continued wining and dining Judge Porteous 
because they needed his help to recruit a successor--other State 
judges--to assume Judge Porteous's former role in setting bonds at the 
amounts necessary to maximize their profits. Once again, Judge Porteous 
agreed, meeting with State judges and vouching for the Marcottes and 
using the prestige and power of his office to foster these new, corrupt 
relationships.
  One of the judges Porteous helped the Marcottes recruit while he was 
a Federal Judge was a State judge named Ronald Bodenheimer. Bodenheimer 
testified that he did not hold Louis Marcotte in high regard and would 
not deal with him because he had a low regard for Marcotte's character 
and believed he was a drug user. Bodenheimer testified that when Judge 
Porteous vouched for Marcotte's integrity, it was critical to his 
decision to form a relationship with Louis Marcotte.
  Judge Bodenheimer would later be convicted and incarcerated on 
Federal corruption charges, in part because of his corrupt relationship 
with the Marcottes, setting bonds in the amounts they requested in 
return for financial favors. Both the Marcottes also would plead guilty 
to corruption charges premised on these same relationships.
  Now let me turn to article III.
  By 2001, Judge Porteous had close to $200,000 in credit card debt, a 
substantial portion of which resulted from his gambling problem. For 
years, Judge Porteous had dishonestly concealed his debts and the 
extent of his gambling by filing false annual disclosure forms.
  Ultimately, in March of 2001, Judge Porteous filed for bankruptcy. 
His filings were replete with dishonest representations. First, to 
conceal his identify, Judge Porteous filed and signed the petition 
under penalty of perjury using a fake name: G.T. Ortous. Further, just 
a few days prior to filing, as part of his plan to conceal his 
identity,

[[Page S8568]]

he obtained a post office box which he listed as his residence on the 
bankruptcy petition. He concealed assets so he could gamble, such as a 
$4,100 tax refund, even through the bankruptcy form asked him 
specifically whether he was expecting a tax refund. He concealed a 
money market account that he used the day before filing bankruptcy and 
that he used while in bankruptcy to pay for his gambling. He lied under 
oath about preferential payments to creditors, particularly casinos. He 
falsely denied under oath having gambling losses in response to a 
question on the form that asked just that. He had his secretary pay off 
a credit card account shortly before filing and then failed to report 
the transaction.
  After the bankruptcy judge issued an order confirming Judge 
Porteous's chapter 13 plan, which prohibited him from incurring new 
debt without permission, Judge Porteous violated the order by secretly 
incurring additional debt at several casinos and by obtaining and using 
a new credit card, all without the permission of the bankruptcy 
trustee.
  In sum, his bankruptcy was replete with deliberately false statements 
made under penalty of perjury in an effort to avoid public disclosure 
of his bankruptcy and his gambling problem.
  Now, let me turn to article IV.
  I previously mentioned that while he was a State judge, Judge 
Porteous had corrupt schemes going on with attorneys Amato and Creeley 
and with the Marcottes. How, then, did he ever get confirmed in the 
first place?
  Article IV alleges and the evidence establishes at Judge Porteous 
repeatedly lied to the Federal Bureau of Investigation and to the U.S. 
Senate in responding to questions posed to him as part of the 
confirmation process on no less than four occasions--particularly in 
response to the very questions that would have required that he 
disclose his corrupt relationships with Creely, Amato, and the 
Marcottes. He was interviewed twice by FBI agents, and filled out two 
separate questionnaires, one of which was sent directly to the Senate 
Committee on the Judiciary.
  There is perhaps no question more important of an applicant for a 
Senate-confirmed position than that which seeks information concerning 
the candidate's integrity. Judge Porteous's responses to these 
questions were false given his corrupt relationship with attorneys 
Amato and Creely and his corrupt relationship with the Marcottes and 
their bail bond business.
  There is a wealth of evidence that makes clear that Judge Porteous 
understood the questions as calling for his disclosure of his corrupt 
relationship with the Marcottes. Most critically, as I mentioned, in 
the summer of 1994, Louis Marcotte asked Judge Porteous to set aside 
the felony conviction of one of his employees named Aubry Wallace--a 
Marcotte employee who had taken care of Judge Porteous's cars and had 
performed house repairs for Judge Porteous. Marcotte testified that 
Judge Porteous responded to Marcotte's request by telling Marcotte:

       Louis, I am not going to let Wallace get in the way of me 
     becoming a Federal judge and getting appointed for the rest 
     of [my] life. . . . Wait until it happens, and then I'll do 
     it.

  In short, Judge Porteous would set aside the conviction as Marcotte 
requested, but he would hide that act from the Senate so as to not 
jeopardize his confirmation. Judge Porteous knew that he had to conceal 
his corrupt relationship with Marcotte if he had any hope of being 
confirmed as a U.S. District Judge--and that is exactly what he did.
  Almost all of the salient facts in this case I have just mentioned 
are not seriously contested. In connection with article I and his 
relationship with Creely and Amato, Judge Porteous admitted the 
critical facts during his sworn testimony before the Fifth Circuit--
where he was given immunity from the use of his testimony in any 
criminal proceeding He admitted Creely gave him money and then balked 
at continuing to do so. He was asked about the curator moneys, and he 
admitted sending the curatorships to Creely and getting cash from Amato 
and Creely after he assigned them the curatorships. Though he will not 
call it a kickback, Judge Porteous does not deny getting the cash back 
from the attorneys after sending them the curatorships.
  When he was asked how much money he got back from Creely and Amato 
during the Fifth Circuit proceedings, his answer was: ``I have no 
earthly idea.'' I have no idea. Not ``I didn't get the money''; not ``I 
don't know what you're talking about.'' but in terms of how much: ``I 
have no idea.'' The payments of cash to Judge Porteous occurred so 
often and for such a prolonged period of time, he could not, or would 
not, estimate how many thousands of dollars he received from them.

  Does he admit getting the $2,000 in cash in an envelope after 
soliciting it from Amato during the pendency of the Liljeberg case? 
Yes, he admits to that in the Fifth Circuit. He takes issue, strangely 
enough, with the envelope itself. He can't remember whether the money 
was delivered in bank envelope or a regular envelope, but he doesn't 
deny getting an envelope with cash during the pendency of this 
multimillion-dollar litigation. He doesn't renember whether he got it 
personally or whether he sent his secretary to pick it up, but he 
doesn't deny getting the cash.
  The record is absolutely clear that Judge Porteous did not disclose 
his receipt of curatorship money when he was asked to recuse himself 
from the Liljeberg case. He admits filing bankruptcy under a false 
name, saying only it was his lawyer's idea. He admits not disclosing 
his pending income tax refund on the forms as required. He admits not 
disclosing his gambling losses on the forms as required. He admits not 
disclosing a bank account he used for gambling. And as to the Judge's 
false statements to the FBI and Senate, the defense's own expert 
testified that if the judge had received kickbacks while on the State 
bench, and if he had a corrupt relationship with bail bondsmen, he 
would have understood that this must be disclosed in answer to the 
questions he was asked by the FBI and the Senate.
  These were the facts the House considered in unanimously approving 
four articles of impeachment. The House determined that the corrupt 
conduct by Judge Porteous fell into four discrete schemes, one 
involving his corrupt relationship with Amato and Creely, another 
pertaining to the Marcottes, a third reflecting his false filings in 
bankruptcy, and the final concerning his deception of the Senate and 
the FBI.
  Notwithstanding the historic precedent of giving the House broad 
discretion in the drafting of articles of impeachment and the plain 
logic of this division, Judge Porteous complains that the articles 
contain allegations that, in counsel's words, are improperly 
``aggregated.'' The Senate has never ordered an article passed by the 
House to be divided up according to the accused's desires, or required 
multiple votes on an article, a proposal prohibited by the Senate's own 
rules.
  Unlike his motions to dismiss articles I and II, this motion was 
heard and decided by the Senate Impeachment Trial Committee on the 
merits, which rejected it completely.
  Judge Porteous claims that the structure of the Articles of 
Impeachment aggregates a series of a disparate allegations. He argues 
further that the Senate should dismiss all of the articles in its 
pleadings or, in so many words, vote on each separate factual predicate 
claim within each article. Judge Porteous mischaracterizes the articles 
in this case, and misstates the impeachment precedent on this issue. 
There is no basis for granting the relief he seeks, and the motion 
should be denied.
  First, as a factual matter, the articles simply do not contain a 
series of unrelated, discrete acts as Judge Porteous contends. Each 
article describes a course of conduct in pursuit of a unitary end, 
pursued through a combination of means. Article I describes Judge 
Porteous's improper conduct while presiding over the Liljeberg case, 
arising from his concealed corrupt financial relationships with 
attorneys Creely and Amato; article II describes Judge Porteous's 
corrupt relationship with Louis and Lori Marcotte and provides the 
details of what he received from them and what he did for them; article 
III describes the numerous dishonest acts and false statements under 
oath by Judge Porteous to deprive his creditors and the bankruptcy 
court of the truth surrounding his financial circumstances; and article 
IV

[[Page S8569]]

describes Judge Porteous's false statements during the confirmation 
process when he concealed his corrupt relationships with attorneys 
Creely and Amato and the Marcottes. Even though each of these separate 
schemes comprised discrete acts, each article describes a single 
coherent scheme.

  Second, as such, each of the articles easily withstand scrutiny under 
long-settled Senate precedent. The Nixon Impeachment Committee ruled 
that Articles of Impeachment are properly framed if they give ``fair 
notice of the contours of the charges against the judge and (2) 
contained an intelligible, essential accusation, thus providing a fair 
basis for conducting the evidentiary proceedings.''
  There is no reason for the Full Senate to set aside the analysis and 
decision of the Senate Impeachment Trial Committee in this case, which 
found the Nixon standard persuasive and consistent with the 
Constitution and ruled that ``Each of the four Articles against Judge 
Porteous meets the Nixon standard.'' In reaching this conclusion, the 
committee summarized the articles, and stated: ``Each Article provides 
Judge Porteous with fair notice of the contours of the charges against 
him and makes clear, intelligible allegations.''
  Each article contains a series of factual allegations comprising the 
charged ``course of conduct'' that constitutes that article. Although 
the requirements for how a count is charged in a criminal indictment do 
not apply in an impeachment, we think that Senator Whitehouse--a former 
U.S. Attorney--got it right when he said during the proceedings:

       Let's say you were looking at a case say involving a scheme 
     and artifice to defraud, and a whole bunch of conduct is 
     alleged in that particular scheme and artifice to defraud. 
     The jury doesn't have to agree on every single piece of that 
     having been done; they have to look at the evidence and 
     conclude [``]yep, based on what we see, we do see a scheme 
     and artifice to defraud in this particular case.['']
       Isn't that the case here, as well? Because the course of 
     conduct [is] integrated enough [it] can fall within the 
     general impeachment standard of high crime and misdemeanor?

  That analysis hits the nail right on the head--each of the four 
articles describes integrated schemes, integrated courses of conduct. 
Looking at article I, for example, defense counsel argues in his brief 
that the recusal hearing alone should be three separate counts--one 
stating the recusal motion was improperly denied, another charging that 
during the recusal hearing he should have disclosed the kickbacks from 
Creely and Amato, and a third, that he made false and misleading 
statements during the same recusal hearing. One hearing--three 
articles. Had we charged it the way counsel suggests, is there any 
question in your mind that counsel wouldn't be here before you today 
arguing that the House improperly disaggregated one corrupt scheme to 
pile on three separate charges?
  In fact, none of these articles constitutes what in the past has been 
occasionally referred to as an ``omnibus'' article--where articles 
involving discrete spheres of misconduct are joined in a single 
article. Had we drafted a fifth article, that set out his relationship 
with Amato and Creely, and the Marcottes, and the bankruptcy and the 
deception of the Senate and said that because of all these acts 
together he should be removed, that would be considered an omnibus 
article. The House chose not to do so, although we note that the House 
has frequently returned omnibus articles summarizing the prior counts, 
and the Senate has not only deemed them proper but repeatedly voted to 
convict on such omnibus articles.

  Judge Porteous has suggested that the consideration of the articles 
as drafted is unfair or would lead to confusion. According to Judge 
Porteous, Senators would not really understand what they were voting on 
in voting to convict. This, however, is hardly a serious contention. In 
article I, there is no credible reason to believe that a Senator would 
not convict unless he or she were satisfied with the core factual 
theory set forth in that count, and the same as with articles II, III, 
or IV.
  Counsel for Judge Porteous has argued that the cases of Judges 
Hastings and Archbald support his claim, pointing to the comments of 
some individual Senators. But as the Senate Impeachment Trial Committee 
in this case so correctly pointed out: ``This, however, was not the 
adopted view in either instance as both judges were convicted on the 
aggregated articles.'' So in both the cases cited by counsel, the 
Senate voted to convict on the omnibus or aggregated articles.
  Judge Porteous's arguments are no different, in substance, to those 
raised in the Hastings impeachment. In that case, there was a 
parliamentary inquiry as to whether, in order to find Judge Hastings 
guilty, a Senator had to find that he committed each of the four 
allegations in a given article. The President pro tempore of the Senate 
responded:

       This is for each Senator to determine in his own mind and 
     in his own conscience and in accordance with his oath that he 
     will do impartial justice under the Constitution and law. It 
     is the Chair's opinion, if the Senator in his own conscience 
     and based on the facts as he understands them determines 
     that, in any one of the paragraphs, Judge Alcee L. Hastings 
     has undermined confidence in the integrity and impartiality 
     of the judiciary and betrayed the trust of the people of the 
     United States, he should vote accordingly.

  And so it is here. It certainly is not necessary for the Senate to 
proceed sentence by sentence or paragraph by paragraph, so long as you 
are able to find, based on the facts as you understand them, that Judge 
Porteous, by his conduct in the given article, has undermined 
confidence in the integrity and impartiality of the judiciary and 
betrayed the trust of the people of the United States.
  The alternate request of counsel, to require multiple votes on each 
article, was also rejected by the Senate Impeachment Trial Committee 
and should be rejected here. As the committee ruled: ``The impeachment 
Rules do not permit Judge Porteous's suggestion that the Senate vote 
separately on the individual impeachable allegations within each 
Article. Impeachment Rule XXIII states that an article of impeachment 
`shall not be divisible for the purpose of voting thereon at any time 
during the trial.' ''
  Now, let me turn to Judge Porteous's motion to dismiss article I. 
Judge Porteous acknowledges in his written pleadings, that for the 
purpose of this motion all the facts alleged in article I should be 
accepted as true. Judge Porteous urges the Senate to dismiss article I 
on three grounds--first, that it charges a violation of title 18, 
U.S.C. section 1346, the mail and wire fraud statute, claiming that 
under the Supreme Court's decision in Skilling, an honest 
services claim cannot be made under that code section. Second, he 
argues that Judge Porteous could not have known that taking kickbacks, 
lying during a recusal hearing, or soliciting thousands in cash from an 
attorney with a case before him could constitute grounds for his 
impeachment. Most remarkably, he claims that he did nothing wrong and 
that taking secret cash from an attorney whose case is under submission 
in your courtroom is, at most, only an appearance problem. It is just 
such an argument which demonstrates his unfitness for the bench.

  First, as to his ``honest services'' argument it is helpful to 
provide some background on what an honest services charge is in a 
criminal case. 18 U.S.C. Section 1346 and 7 are the wire and mail fraud 
statutes. Under those laws, a defendant in a criminal case can be 
charged with defrauding someone of money, property or honest services. 
Judge Porteous argues here that he has been charged with a violation of 
the mail and wire fraud statutes, and if this were a criminal case, he 
would seek to dismiss the charge on the basis that it did not 
adequately set out a crime under that statute. The problem with the 
Judge's argument is that he is not charged with mail or wire fraud 
under section 1346 or 7, this is not a criminal case, and even if it 
were, he would still lose under the very case he cites--for in 
Skilling, the Court found that you could be charged with honest 
services fraud in any case involving a kickback scheme.
  It is plain from a reading of article I that the House has not 
charged, nor is it required to charge, that Porteous is guilty of mail 
or wire fraud in violation of title 18. The article I described by 
Judge Porteous's counsel bears little resemblance to the article that 
was actually charged in this case, which consists of six paragraphs 
that describe how Judge Porteous received kickbacks from attorneys 
Amato and Creely, how he dishonestly presided

[[Page S8570]]

over the Liljeberg case by concealing these kickbacks and making 
intentionally misleading statements at the recusal hearing, and by 
secretly soliciting and accepting cash from Amato while the case was 
pending.
  Article I, despite defense counsel's claim, is not patterned after 
the mail fraud or wire fraud statutes--or any other criminal statute--
and it does not otherwise allege a ``scheme or artifice to defraud,'' 
or any other language that would be necessary to charge a criminal 
``honest services'' fraud offense. Article I is written in non-
technical language and focuses on Judge Porteous's receipt of kickbacks 
and his acts of concealment of corrupt financial relationships in the 
course of presiding over a case. Article I concludes that Judge 
Porteous ``brought his court into scandal and disrepute, prejudiced 
public respect for, and confidence in, the Federal judiciary, and 
demonstrated that he is unfit for the office of Federal judge.'' 
Whether the conduct alleged in article I also violated criminal laws, 
or could have resulted in an indictable offense for ``honest services 
fraud,'' simply has no bearing on any issue before the Senate, and no 
plausible reading of article I as actually drafted suggests that it 
intended to import Supreme Court interpretations of a Federal statute.
  It is for the Senate to determine whether charged conduct 
demonstrates that the individual is not fit to be a judge. That 
determination does not turn on whether the conduct at issue constitutes 
a Federal criminal offense. Indeed, one of the first impeachments was 
of a judge for drunkenness, and, for most of this Nation's history, 
Federal judges have been impeached, and convicted, and removed pursuant 
to articles that have not alleged the commission of Federal criminal 
offenses. As the Senate committee in this case repeatedly pointed out, 
this is not a criminal case. Impeachments in this country, as opposed 
to the British example, are not punitive in nature and threaten the 
judge with no loss of liberty or jail time. They are designed to 
protect the institution from the ill effects of having a corrupt 
officer destroy the public trust in that institution.
  Finally, if this were a criminal case, and he were charged with mail 
or wire fraud, and you were judges rather than Senators, and the judge 
stood to go to jail rather than lose his office, he would still lose 
under the very precedent he cites, Skilling. Skilling, the former CEO 
of Enron, was charged with mail and wire fraud on the theory that he 
deprived shareholders of truthful information about the value of the 
company. The Supreme Court held, as to these counts, that if Congress 
wanted the statute to apply this broadly, it would need to do a better 
job saying so, because the charges against Skilling didn't involve 
bribery or kickbacks. If the scheme did involve kickbacks, as alleged 
in article I, the Court said the charges would be fine. As the Court 
stated: ``A criminal defendant who participated in a bribery or 
kickback scheme, in short, cannot tenably complain about prosecution 
under section 1346 on vagueness grounds.''

  Finally, Judge Porteous argues that article I should be dismissed 
because it charges only the appearance of impropriety, not actual 
wrongdoing, as if no judge can be expected to know that he cannot 
receive secret cash from an attorney with a pending case, or that he 
cannot receive kickbacks from attorneys after sending them cases. That 
is truly a remarkable assertion. Judges are on notice from the day they 
are sworn that they may be convicted and removed if they commit high 
crimes and misdemeanors--that is the constitutional standard to which 
judges must adhere, and Judge Porteous and every other judge ought to 
understand that it requires a very basic level of integrity.
  When Judge Porteous--or any judge--is exposed as having accepted 
things of value from attorneys appearing before him and then ruling in 
favor of the client represented by those same attorneys, he damages the 
judicial system and brings the Federal courts into disrepute. This is 
especially so here, where Judge Porteous's ruling for his financial 
benefactors was reversed on the central issues in the litigation, in an 
opinion that excoriated the judge. Whether the House proved these facts 
is a matter you must decide when you deliberate on the case after 
closing arguments. The Senate report makes clear most of these facts 
are beyond dispute. But accepting the allegations in article I as true, 
as defense counsel concedes you must for the purpose of this motion, 
there is no question that they set out a chargeable high crime and 
misdemeanor. For these reasons, Judge Porteous's second motion must be 
denied. Let me now turn to his motion on article II.
  Judge Porteous argues that article II must be dismissed on three 
grounds: First, because it alleges conduct both before and after his 
appointment to the Federal bench and dismissal is constitutionally 
required as shown by the Senate's precedent in Archbald. Second, 
because House experts testified that a judge could never be impeached 
on the basis of prior conduct. And finally, because the article only 
alleges Judge Porteous socialized with the wrong people.
  Judge Porteous, in his moving papers, again concedes that the 
allegations in article II, for the purpose of this motion, must be 
accepted as true. Those allegations are, in summary, this: That Judge 
Porteous, while a State judge, began a corrupt relationship with the 
Marcottes in which the judge solicited and accepted numerous things of 
value, meals, trips, home repairs, car repairs for his personal use and 
benefit and in return, took official actions benefiting the Marcottes, 
setting bail in a way to maximize their profits, expunging the 
convictions of Marcotte employees both before and after his 
confirmation for the Federal bench, and using the power and prestige of 
his office as a Federal judge in helping recruit other State judges to 
form the same corrupt relationship with the Marcottes.
  As you can see, article II by its own terms charges conduct which 
occurred before confirmation to his Federal judgeship, after his 
confirmation but before he was sworn in, and after he was sworn in and 
while serving on the Federal bench. The conduct charged in article II, 
while he was a Federal judge is egregious, using the power of his 
office to help recruit other State judges to form the same corrupt 
relationship with the Marcottes that he had--a relationship these other 
judges would later go to jail for. We proved this at trial, but more 
than that, this conduct, for the purpose of this motion, and much as 
defense counsel may forget, must be accepted as true. Just as in 
article I, the Senate may convict on article II if it chooses solely on 
the basis of what Judge Porteous did as a Federal judge.

  The only article that charges pre-Federal bench conduct alone, is 
article IV, which charges Judge Porteous with making false statements 
to the Senate and FBI during the confirmation process. Interestingly, 
although Judge Porteous takes other issue with article IV, he does 
challenge the constitutionality of the fact that only prior conduct is 
alleged in article IV. And in fact, as I will discuss in a moment, even 
defense counsel recognize that it is not only constitutional to impeach 
a judge on prior conduct in certain cases, but that it is inevitable as 
well.
  The Constitution itself is silent on when a high crime of misdemeanor 
warranting impeachment must take place. The Constitution describes 
certain types of conduct for which impeachment is warranted, such as 
bribery or treason, but does not say when the misconduct must have been 
committed. Plainly, had the Framers wished to confine the time the 
conduct must have taken place, it would have been easy to do so. They 
could have provided that an officer could be removed for a high crime 
or misdemeanor committed while in that office. But they chose not to so 
limit the scope of impeachment, and for good reason.
  The deliberations of the Framers who were focused on the impeachment 
clause make it clear that it was the institution they sought to protect 
from the destructive influence of an officer who violates the public 
trust and brings the institution into disrepute. Whether the high crime 
or misdemeanor occurs before or after appointment to a particular 
office, if the conduct of that official has brought the institution 
into ill repute, it stands to reason that the Framer's intended that 
conduct to warrant impeachment. There is certainly no indication, that 
in a charge such as article II, which describes conduct before, during 
and after

[[Page S8571]]

appointment, that anything in the text of the Constitution presents a 
grounds for dismissal.
  The one precedent in which a judge was charged in a single count with 
both pre and post office conduct is the 1913 impeachment of Judge 
Robert W. Archbald. There were 13 Articles of Impeachment brought 
against Archbald. Six articles accused him of misconduct on the 
Commerce Court where he was then assigned at the time of his 
impeachment and trial; six accused him of misconduct on the district 
court--his prior judicial appointment. Article 13 set forth allegations 
that involved his conduct on both courts and is therefore directly 
analogous to both articles II in the case against Judge Porteous. And 
on this article, the Senate convicted Judge Archbald.
  Because debate was closed during the floor vote in the Archbald 
impeachment, there was no formal debate or discussion about the 
Senate's jurisdiction to impeach over prior conduct. The Senators were 
not required to state their reasons for their votes, although some did. 
Senator Owen, for example, stated:

       Whether these crimes be committed during the holding of a 
     present office or a preceding office is immaterial if such 
     crimes demonstrate the gross unfitness of such official to 
     hold the great offices and dignities of the people.

  Another Senator specifically noted that he was voting not guilty on 
all but one of the prior court counts because he felt the evidence did 
not support conviction on those counts, but that his vote should not be 
misinterpreted as suggesting that charging prior conduct was improper. 
In fact, five Senators did not feel the evidence was sufficient on any 
count, pre or post.
  More than a quarter of the Senate was absent in the Archbald case, 
and it is impossible to determine what motivated the votes of every 
Senator in Archbald. We do know that of the 68 Senators who believed 
there was sufficient evidence to convict on at least one count, a full 
34 of them expressed unequivocally that they believed a judge should be 
impeached on the basis on misconduct preceding their appointment to 
their current position. How do we know this? Because 32 of them said 
so, by voting to convict on purely prior conduct, and 2 others publicly 
stated that they would have done so, if the evidence of guilt were 
stronger. Only seven expressed the view advocated by Judge Porteous.
  But one conclusion is beyond question: the Senate voted to convict 
Archbald on the one count that most closely resembles article II 
against Judge Porteous and alleged conduct both prior to and during his 
tenure in the current office.
  Defense counsel argues that constitutional experts who testified 
before the House Impeachment Task Force took the position that prior 
conduct could not be considered by the Senate as a basis for 
impeachment. This is a rather incredible claim, since each of the 
experts testified precisely to the contrary, that the timing of the 
misconduct was not a constitutional impediment or the standard, but 
rather the effect of retaining a corrupt official on the institution.
  Distinguished constitutional scholars who testified before the House 
Impeachment Task Force were unequivocal in their views that the 
Constitution permits impeachment, conviction and removal of a Federal 
judge for pre-Federal bench conduct. They noted that the Constitution 
provides no limitation, and that the principles underlying the reasons 
for the impeachment process--protecting the integrity of the Federal 
judiciary--compel this conclusion.
  Professor Michael Gerhardt explained in his written statement:

       Say, for instance, that the offence was murder--it is as 
     serious a crime as any we have, and its commission by a judge 
     completely undermines both his integrity and the moral 
     authority he must have in order to function as a Federal 
     judge. The timing of the murder is of less concern than the 
     fact of it; this is the kind of behavior that is completely 
     incompatible with the public trust invested in officials who 
     are sufficiently high-ranking to be subject to the 
     impeachment process.

  Professor Akhil Amar stated at the hearing:

       Let's take bribery. Imagine now a person who bribes his 
     very way into office. By definition, the bribery here occurs 
     prior to the commencement of office holding. But surely that 
     fact can't immunize the bribery from impeachment and removal. 
     Had the bribery not occurred, the person never would have 
     been an officer in the first place.

  Moreover, defense counsel himself concedes in his written statement 
of the case to the full Senate that prior conduct can be an appropriate 
grounds for impeachment. In discussing a case where a judge might be 
indicted and convicted of a murder that he committed before appointment 
to the Federal bench--that was only discovered later--the defense 
conceded impeachment would be appropriate, writing: ``There would be 
little controversy about removing a judge from office who was convicted 
of murder during his term of office, and the precedential value of such 
an action would be limited.''
  Nor has defense counsel taken the position that impeachment for prior 
conduct should be limited to cases of murder. The Senators from 
Illinois may recall the case of Judge Otto Kerner. He had been the 
Governor of Illinois before his appointment to the Seventh Circuit 
Court of Appeals. While on the court of appeals, he was indicted and 
convicted for accepting bribes while governor, long before he was put 
on the bench. In writing about the case of Otto Kerner, defense counsel 
not only asserted that Kerner could be impeached for the bribes he took 
as governor, but that his impeachment was inevitable. To quote Mr. 
Turley, ``Judge Otto Kerner, Jr., of the United States Court of Appeals 
for the Seventh Circuit, resigned before inevitable impeachment after 
he was convicted for conduct that preceded his service.
  Let us assume that the statute of limitations had not barred 
prosecution of Judge Porteous on the kickbacks, or his corrupt scheme 
with the Marcottes, and like Judge Bodenheimer, he had been sent to 
jail based on that prior conduct. Would it be any less inevitable that 
he must also be impeached and removed from office?

  Although Judge Porteous's counsel acknowledges the appropriateness of 
impeaching for prior conduct in murder, bribery, and other cases--
indeed its inevitability--he evidently seeks to distinguish this case 
because Judge Porteous was not first convicted during a criminal trial. 
Of course, the Constitution does not require a criminal conviction 
prior to impeachment. The Framers didn't want to delegate to the 
Department of Justice the power to remove a judge, which would be the 
effect of saying it requires a conviction to remove someone on that 
basis. The language of the Constitution presumes, when it says that a 
prosecution may follow not precede impeachment, when it provides in 
article I, section 3 that a party convicted in an impeachment trial 
``shall nevertheless be liable and subject to indictment, trial, 
judgment, and punishment, according to our criminal law.''
  In many prior impeachments, there has been no criminal trial and, in 
fact, in the Hastings case impeachment followed acquittal in a criminal 
case. So, plainly, the Constitution doesn't require a prior criminal 
trial or conviction to impeach, whether the conduct occurred or not.
  Nonetheless, counsel argues it is unfair here, because a criminal 
trial would have more fully brought out the facts in the case, and 
provided a more detailed record. But this ignores the very full record 
in the fifth circuit proceeding, the depositions in this case, as well 
as the comprehensive trial before the Senate Committee. It is worth 
pointing out that during that trial, Judge Porteous has been 
represented not only by the very capable Mr. Turley, but at least 8 
attorneys from the law firm of Bryan Cave. Moreover, this team of 
attorneys did not feel it was necessary to use the entire amount of 
time they were permitted to put on their case and simply rested. You 
would think, if counsel really felt that there was more to the case 
that needed to be illuminated, it would have used the full opportunity 
it was given to present witnesses.
  Finally, there is a policy argument advanced by Judge Porteous, that 
if the Senate convicts him on the basis of conduct that occurred in 
part before he was on the federal bench, even though it is intertwined 
with his appointment and service on the bench, it will open the 
impeachment process to abuse by partisan interests. These partisan 
interests, upset with a judge's decision or

[[Page S8572]]

judicial philosophy, might conjure up some prior misconduct and use it 
to urge the impeachment of a judge.
  It is true that the power to impeach a judge based on prior conduct 
could be abused, like any other power. If partisan interests wish to 
urge the impeachment of a judge whose decisions they don't like, they 
could just as well conjure up misconduct which occurred while the judge 
was on the bench, as before. The protection against that abuse rests in 
two places: it rests with the House to reject any impeachment charge 
which is a mere subterfuge for attacking a judge's decision of 
philosophy. And it rests here, in this chamber, where you must never 
remove a judge for partisan reason and erode independence of the 
judiciary.
  Importantly, there is no allegation, no suggestion, not by defense 
counsel or anyone else, that this is the case with Judge Porteous. 
There is no claim that this impeachment is based on some illicit 
partisan interest.
  There is a more serious consequence, however, of concluding that 
judges cannot be impeached for prior conduct, that confirmation is a 
safe harbor against all removal for all prior offenses be they 
undiscovered at the time. And that is the destruction to the public 
trust that would accompany a constitutional or policy determination 
that a judge who has so disgraced his office, by committing a high 
crime or misdemeanor, though they sit in jail, must continue to be 
called ``judge,'' must continue to be paid their full salary for life, 
and rest beyond the reach of this body.
  Whether the Senate concludes that prior conduct alone should be the 
basis of an impeachment, article II alleges impeachable conduct that 
occurred not just before but while he was a Federal judge, and for the 
purpose of this motion to dismiss those allegations are accepted as 
true, this final motion must be denied.
  For these reasons, Judge Porteous's motion to dismiss should be 
denied. I would be happy to respond to any questions.
  The PRESIDENT pro tempore. Thank you very much. Mr. Turley.
  Mr. TURLEY. Mr. President, I thank you for allowing me a chance to 
rebut some of what my esteemed colleague told you today.
  I have to begin by making an observation, and perhaps you noticed 
what happened. We were told we were going to speak to you this morning 
about constitutional issues. The first thing the House did was start to 
go through these specific allegations against Judge Porteous, the 
merits of the case. Maybe I am a bit sensitive, but the way I heard it 
made it sound as if, if you don't like this guy, don't like what the 
merits say, it should influence how you read the Constitution.
  As many of you know--and I believe all of you know--constitutional 
interpretations don't depend on how you feel about someone. It doesn't 
depend on how you feel about a case. It depends on how you read the 
Constitution. So my opposing counsel took you up 10,000 feet, had you 
look down at these articles, and said: Look at all the bad things we 
say this guy did. He is asking you to interpret the Constitution.
  He is not asking you to interpret the Constitution. You are required 
to do that. That is your job. It doesn't matter if he was guilty of all 
these things. He is not guilty, and we will make that argument. That 
doesn't have any bearing on how you interpret these clauses.
  I also have to object to the use by the House of testimony by law 
professors in the House proceedings. As some of you know, the House of 
Representatives submitted a post-trial brief that contained statements 
from law professors on the merits of impeachment basically telling you 
what you should do in this case. The committee and Chairman McCaskill, 
correctly in our view, ruled that is not appropriate. It would not be 
allowed in a court of law. So the House was told to redo their brief 
and resubmit it. The House then proceeded to introduce that very same 
information in today's presentation. I simply have to object.
  I also have to object that, when they did so, the House didn't 
actually quote the law professors fully on the issue of pre-Federal 
conduct. Professor Omar actually dismissed it as just all that State 
stuff. Professor Gerhardt said nobody should be convicted of pre-
Federal conduct, which completely contradicts what the House has said. 
The reason we objected to the inclusion of these professors--and if I 
could testify, I think my testimony should have been excluded--is that 
it is your decision. Judges don't hear experts on the merits of 
decisions.
  I wish to actually address the constitutional issue. I will, however, 
take the liberty to deal with one factual assertion that the House has 
made because it was in direct response to something I had said. I told 
the Members of this body that Judge Porteous agreed to waive all the 
statutes of limitations that he was asked to waive. He did not think it 
was appropriate to stand behind the statutes of limitations. The House 
proceeded to suggest that he had not, that there were some statutes of 
limitations that he did not waive. The record will show, if you look at 
some of the material we have already submitted to you in our post-trial 
brief, that, in fact, Judge Porteous agreed to every waiver of the 
statutes of limitations put in front of him. He did not refuse any 
waiver of a statute of limitation.
  When they said to him: We want the ability to charge you, even if you 
could block charges as to limitations, he said: So be it. I am a 
Federal judge. If you find crimes, charge me. Just make sure we 
understand this, DOJ began its investigation in the mid to late 
nineties. The statute of limitations on the Articles of Impeachment ran 
5 to 10 years. So no statute of limitations had passed for anything he 
did as a Federal judge, which is what we are discussing today.
  But putting that aside, the prosecutors had a problem with the 
statute of limitations with regard to Judge Bodenheimer, and it didn't 
stop them from charging. All they did was charge conspiracy and said 
there were ongoing acts, so the statute of limitations had to run. It 
wasn't even a speed bump on their way to charge Judge Bodenheimer.
  Specifically, Judge Porteous waived, among others, the right to 
charge him with bankruptcy fraud, bribery, illegal gratuities, criminal 
conflict of interest, criminal contempt, false statements, honest 
services or wire fraud. Those were requested of him and that is what he 
signed. I think it would have been unfair to suggest somehow he hasn't 
done that.
  The Senate has heard from the House that they were simply showing 
considerable restraint and deference to this body by aggregating 
counts. By aggregating counts, my esteemed colleague on the other side 
said that, after all, you wouldn't want us to break these up into what 
he calls unnatural pieces. I wish to talk about those unnatural pieces 
in a second. I cannot allow in the past when the House said: Do any of 
you doubt that if we had disaggregated, the defense would not be here 
today complaining that they were facing individual articles on 
individual claims? I will simply represent to you, if you look at the 
record, no one--no criminal defense attorney in history has objected to 
having specific defined charges. But more important, if you look at the 
history of this body, defense attorneys and Members of this body have 
objected to the aggregation that is being used in these articles.
  Indeed, the House of Representatives, in Hastings, separated specific 
false statements so you could make a decision whether a judge gave a 
false statement, a specific one, before you reached your decision to 
remove them. Those weren't unnatural pieces. Those were stand-alone 
charges. Those would be in an indictment as separate counts.
  My esteemed colleague also has objected that we are asking you to set 
up a situation where some judge is going to sit in a prison, and I 
believe the expression was ``force people to call him judge.'' Once 
again, just as the response was to go into the merits instead of 
constitutional issues, clearly, the light is better by directing your 
attention to a mythical judge sitting in a Federal prison making people 
call him judge. I will argue that case if you want me to. But I have to 
tell you, I lose. The judge cannot serve in office in good behavior in 
prison. I don't know of anyone who is credible who has said at any time 
that a judge could insist on being treated as a judge in that instance. 
I don't know about being called a judge, but to be a judge, that would 
not be possible, in our view.

[[Page S8573]]

  I wish to address a couple points about aggregation. The House 
obviously walked back from Mr. Schiff's statement to the committee that 
you have the authority to do preliminary votes. That was very clear. At 
the time, I commended Mr. Schiff for that position. I have no idea what 
the authority is for saying that you cannot organize your deliberations 
any way you want. What you are required to do under rule XXIII is have 
a final vote on the article, and it cannot be divided. We suggest you 
do that. All we are proposing is that the Senate know what it is voting 
on, to look at the individual issues presented in these articles.
  Furthermore, the House said this was already rejected by the 
committee. We were given a fair hearing by the committee in the 
pretrial motion, and I thank the chair and I thank the vice chair for 
that opportunity. If you look at the record, what occurred was that 
some Senators agreed that they had difficulties with the aggregation 
issue. And Mr. Schiff stood up and said: You don't have to decide it 
because you have the authority to do this. You can go ahead and make 
determinations on individual issues.
  Some Senators raised this question, and it was ultimately not granted 
at that time. Instead, we have submitted it to you.
  I will only submit to you that it makes no sense, honestly, for the 
Framers to go through the trouble of establishing a two-thirds vote 
requirement but allow the House to simply aggregate charges that 
virtually guarantees that, in many cases, two-thirds of you will not 
agree on the reason you are removing a Federal judge. That can't 
possibly be what the Framers intended because they weren't stupid men. 
They were very careful and deliberate men, and they set up a standard 
that was exacting.
  The House also says: In addition to our being able to do this--to 
aggregate--because it would be so exhaustive to turn one article into 
three, even though they did that in Hastings and prior impeachment 
cases--that, by the way, these aren't individual claims; they are 
actually all related. So they do not have to be separate because the 
House says it wouldn't make any sense; you wouldn't understand it.
  I direct your attention to article II.
  In article II, Judge Porteous is accused of using his power and 
prestige of Federal office to assist bail bondsmen in making 
relationships and acting corruptly. All right, I understand that. I 
don't think it is an impeachable offense, seeing that ``corruption'' is 
the exact word Madison rejected. But still, that is a stand-alone 
issue. You can make a decision if that happened. I will simply say--
because I will not argue the merits at this time; I was told to argue 
the motions--that we have very strong disagreements with the factual 
representations made by the House. But that is one of the claims in 
article II. In the same article, he is charged with knowing that Louis 
Marcotte, a bail bondsman from Gretna, LA, lied to the FBI in an 
interview.
  Those are two very distinct charges. One is saying that he 
essentially procured someone to testify or make statements falsely, and 
one is that he used his office to assist in a corrupt relationship. As 
you can imagine, if you were standing here in my place, could you 
defend against both those points with the same argument? I don't think 
so. Those two points raise two different issues. They actually refer to 
two different issues in the Criminal Code.
  What I am asking from you, with all due respect, is to give this 
judge the process you would want for yourself if, God forbid, you were 
accused of anything like what the Judge is accused of. Would it be 
fair, if you stood here accused, to have the House say: You know what, 
we don't have to separate allegations; we can just pile them all 
together because, after all, they have one thing in common: Judge 
Porteous.
  That is not enough.
  We have submitted a motion that showed no discernible connection 
between some of these aggregated claims, and we will leave it to that 
because we have limited time, and I know the Members of this body have 
somewhere to go, and I will try to wrap up as quickly as possible. I 
would simply note on the Skilling issue that if you listen carefully, 
the House, on Skilling, said that it is not a problem after Skilling 
because you can read in a kickback scheme into these articles. If you 
want to, you could read these facts and say: Well, that is a kickback, 
so Skilling applies.
  Isn't the danger to that argument obvious? The Senate would be 
changing an Article of Impeachment. That is what they are being invited 
to do. The House of Representatives has the sole authority and 
obligation to define what it is that a judge should be removed for. It 
is not just their power, it is their obligation. Now the House says: 
Look, we are given great discretion to give you whatever we want. No 
one tells us what has to be in an article. We can do it because we have 
the authority to do it. That is true. And the Constitution gives you 
great authority to turn down an article from the House of 
Representatives. That is what you can do.
  So this idea that the House would produce four articles that don't 
even mention bribery or kickbacks but that you can read it into those 
articles is unbelievably dangerous. It means you could get any article 
and transform it here on the floor of the Senate. You could remove 
someone for something the House Members did not agree should be 
submitted to you. Isn't that danger obvious?
  The House had the opportunity to state that there was a bribe or a 
kickback. Bribery is in the standard. It was used by the Framers. They 
rejected corruption, but they put bribery in. So the question is, Are 
you allowed to do a do-over here on the floor of the Senate and simply 
ask the Members of the Senate to make the article fit like it is close 
enough for jazz? That is not the standard under the Constitution.
  Now, the House says the Constitution is silent on when conduct has to 
occur in order for it to be the basis for the removal of a Federal 
judge. In fact, I thought I heard the House say that the Framers chose 
not to put in a statement in the Constitution when it occurred. Like 
many in this room, I have spent a lot of time with those debates--
probably more than I should. I don't remember ever seeing that. My 
understanding is the Framers never addressed this issue, but they did 
address it in the Constitution. They just didn't put it in the 
impeachment clause. But when they defined life tenure, they said you 
have life tenure during good behavior. During good behavior in what? 
There wasn't good behavior in life. They said good behavior in office. 
It was a reference to the office that they held because they wanted to 
make sure people would not abuse their Federal office.
  The life tenure guarantee under article III of the Constitution was 
to guarantee an independent judiciary by saying that you could not be 
denied life tenure as long as you served with good behavior in that 
office. What the House would have you believe is that the Framers would 
allow you--even though it refers to good behavior in office--to remove 
a judge for anything they did in life. Once again, does that track with 
what you know about article III? Does that make sense in terms of the 
only seven judges who were removed by this body; that all the time, it 
turns out that for 206 years Congress could have removed someone for 
anything they did in life?
  Now, the House says you shouldn't be scared by the implications of 
all of this; that if you allow pre-Federal conduct, if you allow 
anything done in life to be the basis of removal of a Federal judge, 
don't be concerned about abuse. God knows Congress would never abuse 
any authority under the Constitution. And basically the argument was, 
trust us, we are the House. That is not what the Framers said in the 
Constitution. They didn't say to trust them because of the House.
  And yes, you are here. The House said: Don't worry, you are here. So 
even if we abuse this, it has to go through you. Now, that is true. God 
knows this body has stopped a lot of impeachments. It has only agreed 
to seven removals. But is that the constitutional standard, that the 
House can go ahead and just impeach anyone for anything they did in 
life and seek the removal and hope you correct their actions?
  The PRESIDENT pro tempore. The time has expired.
  Mr. TURLEY. Thank you, Mr. President. And thank you, Members of 
Congress--Senate.
  The PRESIDENT pro tempore. The Chair has received two questions for

[[Page S8574]]

both sides, one from Senator Durbin and the other from Senator Leahy.
  The clerk will report.
  The legislative clerk read as follows:

       Senator Durbin's question to both sides: What is the 
     standard of proof for the movant or petitioner in impeachment 
     proceedings such as the extant case?

  The PRESIDENT pro tempore. Do you wish to respond, Mr. Turley?
  Mr. TURLEY. Senator Durbin, the standard which we will be addressing 
when we get to the merits of the case has been subject to considerable 
historical debate. I will give what I believe is the weight of that 
historical record.
  It is true that the Constitution does not enunciate a specific 
standard in terms of a burden of proof. We do not agree with the House 
that they refer to high crimes and misdemeanors as a standard. That is 
not a standard of proof; that is the definition of a removable offense. 
There is a difference.
  So what we would suggest is that the Senate can look at a known 
standard, such as beyond a reasonable doubt. Beyond a reasonable doubt, 
of course, is the standard for a criminal case. The Constitution is 
written in criminal terms of high crimes and misdemeanors. That is one 
of the reasons why historically you have had these articles crafted 
closely to the Criminal Code. In fact, many impeachments actually took 
directly from a prior indictment and made the indictable counts the 
Articles of Impeachment.
  The House has argued that standard is not necessary and too high. 
Well, we would submit to you--and we will certainly argue this when we 
get to the merits--that in the House recently, when they held a Member 
up for censure, they had a clear and convincing standard, that you must 
at least be satisfied with clear and convincing evidence. In my view, 
as an academic, it must be somewhere between clear and convincing and 
beyond a reasonable doubt.
  What is more clear, Senator, is what it is not; that is, if you read 
the impeachment clauses, the clear message is that you can't just take 
facts that are in equipoise--allegations supported by one witness and 
denied by another--and just choose between them; that the facts have 
to, in your mind, go beyond a simple disagreement and be established, 
in our view, at a minimum by clear and convincing evidence.
  The PRESIDENT pro tempore. Representative Schiff.
  Mr. Manager SCHIFF. Mr. President, Senators, the Senate has 
considered and rejected the adoption of any particular standard, such 
as beyond a reasonable doubt. What the Senate has determined in the 
past in these cases is that, essentially, each Senator must decide for 
themselves, are they sufficiently satisfied that the House has met its 
burden of proof, are they convinced of the truthfulness of the 
allegations and that they rise to a level of high crimes and 
misdemeanors.
  It is a decision where--and we can get into precise language the 
Senate has used in the past, but the Presiding Officer has instructed 
each Senator to look to their own conscience, to look to their own 
conviction, to be assured they believe that the judge in this case has 
committed the acts the House has alleged. So it is an individual 
determination, and the Senate has always rejected adopting a specific 
Criminal Code-based standard, such as beyond a reasonable doubt or a 
civil standard of convincing or clear and convincing proof because it 
is an individual Senator's decision.
  It also reflects the fact that, as the Framers articulated, this is a 
political process--not political in the partisan sense but political in 
that it is not a criminal process. It is not going to deprive someone 
of their liberty. What it is designed to do is to protect the 
institution.
  So I think the question for each Senator is, Has the House 
sufficiently proved the case that, in the view of each Senator, to 
protect the institution, there must be a removal from office? So it is 
an individual determination.
  The PRESIDENT pro tempore. Thank you very much.
  And now will the clerk read the question from Senator Leahy.
  The assistant legislative clerk read as follows:

       Senator Leahy's question to both sides: The Senate 
     Judiciary Committee requires a sworn statement as part of a 
     detailed questionnaire by a nominee. Until this questionnaire 
     is filed, neither the Judiciary Committee nor the Senate 
     votes to advise and consent to the nomination. Would not 
     perjury on that questionnaire during the confirmation process 
     be an impeachable offense?

  The PRESIDENT pro tempore. Professor Turley.
  Mr. TURLEY. Thank you, Mr. President. Thank you, Senator Leahy.
  In my view, yes, that is if you commit perjury in the course of 
confirmation, that would be basis for removal. In fact, I believe Mr. 
Schiff made reference to perjurious statements by Judge Porteous. We 
will be addressing that because that is not charged.
  What would have to be done is the House would have to accuse someone 
of perjury as in the Hastings case and have perjurious statements, and 
then I could stand here and tell you why there is no intent to commit 
perjury or why the statements were, in fact, true.
  While Mr. Schiff referred to perjury, once again, perjury is not one 
of the Articles of Impeachment. And what I would caution--even though 
it can be, I would again caution this should not be an ad hoc process 
by which you can graft on actual criminal claims by implying them in 
language issued by the House.
  The PRESIDENT pro tempore. Congressman Schiff.
  Mr. Manager SCHIFF. Thank you, Mr. President, Senators. This 
essentially is what article IV is about which charges Judge Porteous 
with making false statements to the FBI and to the Senate during his 
confirmation process, and the answer is yes, absolutely. But I think 
what is very telling here is that counsel has conceded that, yes, if 
someone perjures themselves in the confirmation process they can and 
should be impeached but by definition that is conduct which has 
occurred prior to their assumption of Federal office. If someone can 
never be impeached on the basis of prior conduct, his answer should 
have been no, but plainly counsel recognizes there are circumstances 
where impeachment is not only appropriate but inevitable and essential. 
And where someone lies to get the very office that they are confirmed 
to, to deprive him of that office, to deprive him of the ill-gotten 
gain of that deception I think is not only constitutional but essential 
to uphold the office as well as to uphold the confirmation process 
itself.
  The PRESIDENT pro tempore. Thank you very much. That concludes the 
argument on the motions.

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