[Pages S2357-S2360]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

ARTICLES OF IMPEACHMENT AGAINST JUDGE G. THOMAS PORTEOUS, JR.

The PRESIDING OFFICER. The Chair submits to the Senate for printing
in the Senate Journal and in the Congressional Record the replication
of the House of Representatives to the Answer of Judge G. Thomas
Porteous, Jr., to the Articles of Impeachment against Judge Porteous,
pursuant to S. Res. 457, 111th Congress, Second Session, which
replication was received by the Secretary of the Senate on April 15,
2010.

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The materials follow.

Congress of the United States,

Washington, DC, Apr. 15, 2010.
Re Impeachment of G. Thomas Porteous, Jr., United States
District Judge for the Eastern District of Louisiana.

Hon. Nancy Erickson,
Secretary of the Senate,
U.S. Senate, Washington, DC.
Dear Ms. Erickson: Pursuant to Senate Resolution 457 of
March 17, 2010, enclosed is the Replication of the House of
Representatives to the Answer of G. Thomas Porteous Jr., to
the Articles of Impeachment.
A copy of the Replication and of this letter will be served
upon counsel for Judge Porteous today through electronic
mail.
Sincerely,
Alan I. Baron,
Special Impeachment Counsel.

In the Senate of the United States

Sitting as a Court of Impeachment
____

In re: Impeachment of G. Thomas Porteous, Jr., United States District
Judge for the Eastern District of Louisiana
____

REPLICATION OF THE HOUSE OF REPRESENTATIVES TO THE ANSWER OF G. THOMAS
PORTEOUS, JR., TO THE ARTICLES OF IMPEACHMENT

The House of Representatives, through its Managers and
counsel, respectfully replies to the Answer to Articles of
Impeachment as follows:

Response to the Preamble

Judge Porteous in his Answer to the Articles of
Impeachment, denies certain of the allegations and makes what
are primarily technical arguments as to the charging language
that do not address the factual substance of the allegations.
However, it is in Judge Porteous's Preamble that he sets
forth his real defense and, without denying he committed the
conduct that is alleged in the Articles of Impeachment,
insists that nevertheless he should not be removed from
Office.
At several points in his Preamble, Judge Porteous notes
that he was not criminally prosecuted by the Department of
Justice, the implication being that the House and the Senate
should abdicate their Constitutionally assigned roles of
deciding whether the conduct of a Federal judge rises to the
level of a high crime or misdemeanor and warrants the Judge's
removal, and should instead defer to the Department of
Justice on this issue. Judge Porteous maintains that
impeachment and removal may only proceed upon conduct that
resulted in a criminal prosecution, no matter how corrupt the
conduct at issue, or what reasons explain the Department's
decision not to prosecute. Judge Porteous provides no support
for this contention because there is none--that is not what
the Constitution provides.
Indeed, the Senate has by its prior actions made it clear
that the decision as to whether a Judge's conduct warrants
his removal from Office is the Constitutional prerogative of
the Senate--not the Department of Justice--and the existence
of a successful (or even an unsuccessful) criminal
prosecution is irrelevant to the Senate's decision. The
Senate has convicted and removed a Federal judge who was
acquitted at a criminal trial (Judge Alcee Hastings). The
Senate has also convicted a Federal judge for personal
financial misconduct (Judge Harry Claiborne) while at the
same time acquitting that same Judge of the Article that was
based specifically on the fact of his criminal conviction.\1\
Thus, Judge Porteous's repeated references to what the
Department of Justice did or did not do adds nothing to the
Senate's evaluation of the charges or the facts in this
case.\2\
Further, according to Judge Porteous, pre-Federal bench
conduct cannot be the basis of Impeachment, even if that
conduct consisted of egregious corrupt activities that was
beyond the reach of criminal prosecution because the statute
of limitations had run, and even if Judge Porteous
fraudulently concealed that conduct from the Senate and the
White House at the time of his nomination and confirmation.
There is nothing in the Constitution to support this
contention, and it flies in the face of common sense. The
Senate is entitled to conclude that Judge Porteous's pre-
Federal bench conduct reveals him to have been a corrupt
state judge with his hand out under the table to bail
bondsmen and lawyers. Such conduct, which, as alleged in
Articles I and II, continued into his Federal bench
tenure, demonstrates that he is not fit to be a Federal
judge.
Finally, the notion that Judge Porteous is entitled to
maintain a lifetime position of Federal judge that he
obtained by acts that included making materially false
statements to the United States Senate is untenable. Judge
Porteous would turn the confirmation process into a sporting
contest, in which, if he successfully were to conceal his
corrupt background prior to the Senate vote and thereby
obtain the position of a Federal judge, he is home free and
the Senate cannot remove him.

Article I

The House of Representatives denies each and every
statement in the Answer to Article I that denies the acts,
knowledge, intent or wrongful conduct charged against
Respondent.

FIRST AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense and further
states that Article I sets forth an impeachable offense as
defined in the Constitution of the United States.

SECOND AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense, namely,
that Article I is vague. To the contrary, Article I sets
forth several precise and narrow factual assertions
associated with Judge Porteous's handling of a civil case
(the Liljeberg litigation), including allegations that Judge
Porteous ``denied a motion to recuse himself from the case,
despite the fact that he had a corrupt financial relationship
with the law firm of Amato & Creely, P.C. which had entered
the case to represent Liljeberg'' and that while that case
was pending, Judge Porteous ``solicited and accepted things
of value from both Amato and his law partner Creely,
including a payment of thousands of dollars in cash.'' There
is no vagueness whatsoever in these allegations. Article I's
allegation that Judge Porteous deprived the public and the
Court of Appeals of his ``honest services''--a phrase to
which Judge Porteous raises a particular objection--could not
he more clear and free of ambiguity as used in this Article,
and accurately describes Judge Porteous's dishonesty in
handling a case, including his distortion of the factual
record so that his ruling on the recusal motion was not
capable of appellate review.\3\

THIRD AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of the purported affirmative defense that Article
I charges more than one offense. The plain reading of Article
I is that Judge Porteous committed misconduct in his handling
of the Liljeberg case by means of a course of conduct
involving his financial relationships with the attorneys in
that case and his failure to disclose those relationships or
take other appropriate judicial action. The separate acts set
forth in Article I constitute part of a single unified scheme
involving Judge Porteous's dishonesty in handling Liljeberg.
Further, the charges in this Article are fully consistent
with impeachment precedent.\4\

FOURTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense, which, in
effect, seeks to suppress the voluntary statements of a
highly educated and experienced Federal judge, made under
oath, before other Federal judges. Judge Porteous was
provided a grant of immunity in connection with his Fifth
Circuit Hearing testimony, and the immunity order provided
that his testimony from that proceeding could not be used
against him in ``any criminal case.'' Simply put, an
impeachment trial is not a criminal case.\5\ Accordingly,
there is simply no credible basis to argue that the Senate
should not consider Judge Porteous's voluntary and immunized
Fifth Circuit testimony.

Answer to Article II

The House of Representatives denies each and every
statement in the Answer to Article II that denies the acts,
knowledge, intent or wrongful conduct charged against
Respondent.

FIRST AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense and further
states that Article II sets forth an impeachable offense as
defined in the Constitution of the United States.

SECOND AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense, namely,
that the Article is vague. To the contrary, Article II sets
forth several precise and narrow factual assertions
associated with Judge Porteous's relationship with the
Marcottes--both prior to and subsequent to Judge Porteous
taking the Federal bench. Article II alleges with specificity
the things of value given to Judge Porteous over time and
identifies the judicial or other acts taken by Judge Porteous
for the benefit of the Marcottes and their business.

THIRD AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense, namely,
that the Article improperly charges multiple offenses. The
plain reading of Article II is that Judge Porteous engaged in
a corrupt course of conduct whereby, over time, he solicited
and accepted things of value from the Marcottes, and, in
return, he took judicial acts or other acts while a judge to
benefit the Marcottes and their business.

FOURTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense, namely,
that Article II improperly charges pre-Federal bench conduct
as a basis for impeachment. First, Article II plainly alleges
that Judge Porteous's corrupt relationship with the Marcottes
continued while he was a Federal Judge. Second, Judge
Porteous's assertion that pre-Federal bench conduct may not
form a basis for impeachment finds no support in the
Constitution and is not supported by any other sound legal or
logical basis.\6\ As a factual matter, it is especially
appropriate for the Senate to consider Judge Porteous's pre-
Federal bench corrupt relationship with the Marcottes where
it was affirmatively concealed from the Senate in the
confirmation process,

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where it involved conduct as a judicial officer directly
bearing on whether he was fit to hold a Federal judicial
office, and where that conduct, having now been exposed,
brings disrepute and scandal to the Federal bench.

Article III

The House of Representatives denies each and every
statement in the Answer to Article 111 that denies the acts,
knowledge, intent or wrongful conduct charged against
Respondent.

FIRST AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense and further
states that Article III sets forth an impeachable offense as
defined in the Constitution of the United States.

SECOND AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense, which
alleges in substance that the allegations in Article III are
vague. To the contrary, Article III sets forth several
specific allegations associated with Judge Porteous's conduct
in his bankruptcy proceedings. There is no credible
contention that Judge Porteous cannot understand what he is
charged with in this Article.

Third Affirmative Defense

The House of Representatives denies each and every
allegation of this purported affirmative defense, which
alleges, in substance, that Article III charges more than one
offense. The plain reading of Article III is that Judge
Porteous committed misconduct in his bankruptcy proceeding by
making a series of false statements and representations, and
by incurring new debt in violation of a Federal Bankruptcy
Court order. This Article alleges a single unified fraud
scheme, with the purpose of deceiving the bankruptcy court
and creditors as to his assets and his financial affairs, so
that Judge Porteous could enjoy undisclosed wealth and income
for personal purposes including gambling.

FOURTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense, which, in
effect, seeks to suppress the voluntary statements of a
highly educated and experienced Federal judge, made under
oath, before other Federal judges. Judge Porteous was
provided a grant of immunity in connection with his Fifth
Circuit Hearing testimony, effectively eliminating the
possibility that any of that testimony could be used against
him in any criminal case. An impeachment trial is not a
criminal case. There is simply no credible basis to argue
that the Senate should not consider Judge Porteous's
voluntary and immunized Fifth Circuit testimony.

FIFTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense--which does
not take issue with the proposition that Judge Porteous
committed misconduct in a Federal judicial bankruptcy
proceeding, but contends only that the acts as alleged do not
warrant impeachment. First, this is not an affirmative
defense. It is up to the Senate to decide whether the facts
surrounding the bankruptcy warrant impeachment.
Second, the Senate has in fact removed a judge for personal
financial misconduct, and in 1986 convicted Federal Judge
Harry Claiborne and removed him from office for evading
taxes. It is significant that the Senate did not convict
Judge Claiborne for the crime of evading taxes. Rather, the
Senate acquitted Judge Claiborne of the one Article that
charged him with having committed and having been convicted
of a crime.
Third, what the Department of Justice may consider material
for purposes of a criminal prosecution has nothing to do with
what the Senate may deem to be material for purposes of
determining whether Judge Porteous should be removed, from
Office--an Office which requires that he oversee bankruptcy
cases and administer and enforce the oath to tell the
truth.\7\

Article IV

The House of Representatives denies each and every
statement in the Answer to Article IV that denies the acts,
knowledge, intent or wrongful conduct charged against
Respondent.

FIRST AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense and further
states that Article IV sets forth an impeachable offense as
defined in the Constitution of the United States.

SECOND AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense, which
alleges the Article is vague. The allegations sets forth in
Article IV are specific and precise. In fact, Judge
Porteous's description of the charge fairly characterizes the
offense: ``In essence, Article IV alleges that Judge Porteous
gave false answers on various forms that were presented in
connection with the background investigation. . . . It is
apparent, therefore, that Judge Porteous has a clear
understanding of these allegations in Article IV, which
specify the dates and circumstances when the statements were
made, and the contents of the statements that are alleged to
have been false. There is no credible contention that Article
IV does not provide Judge Porteous specific notice as to what
this Article alleges.

THIRD AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense. The
allegations set forth in Article IV are specific and precise.
They charge in substance that Judge Porteous made a series of
false statements to conceal the fact of his improper and
corrupt relationships with the Marcottes and with attorneys
Creely and Amato in order to procure the position of United
States District Court Judge. Charging these four
false statements, all involving a single issue, in a
single Article is consistent with precedent.'

FOURTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every
allegation of this purported affirmative defense, alleging
that the Senate cannot impeach Judge Porteous based on pre-
Federal bench conduct. First, Judge Porteous's assertion that
pre-Federal bench conduct may not form a basis for
impeachment is not supported by the Constitution.
Notwithstanding Judge Porteous's assertions to the contrary,
the Constitution does not limit Congress from considering
pre-Federal bench conduct in deciding whether to impeach, and
there are compelling reasons for Congress to consider such
conduct--especially where such conduct consists of making
materially false statements to the Senate. The logic of Judge
Porteous's position is that he cannot be removed by the
Senate, even though the false statements he made to the
Senate concealed dishonest behavior that goes to the core of
his judicial qualifications and fitness to hold the Office of
United States District Court Judge. The proposition that the
Senate lacks power under these circumstances to remedy the
wrong committed by Judge Porteous is simply untenable.
Respectfully submitted,

The United States House of Representatives

Adam Schiff,
Manager.
Bob Goodlatte,
Manager.
Alan I. Baron,
Special Impeachment Counsel.

Managers of the House of Representatives: Adam B. Schiff,
Bob Goodlatte, Zoe Lofgren, Henry C. ``Hank'' Johnson, F.
James Sensenbrenner, Jr.

April 15, 2010.

Endnotes

\1\ Judge Harry E. Claiborne was acquitted of Article III,
charging that he ``was found guilty by a twelve-person jury''
of criminal violations of the tax code, and that ``a
judgement of conviction was entered against [him].'' See
``Impeachment of Harry E. Claiborne,'' H. Res. 471, 99th
Cong., 2d Sess. (1986) (Articles of Impeachment); 132 Cong.
Rec. S15761 (daily ed. Oct. 9, 1986) (acquitting him on
Article III).
\2\ Moreover, the Department of Justice's investigation
hardly vindicated Judge Porteous. To the contrary, the
Department viewed Judge Porteous's misconduct as so
significant that it referred the matter to the Fifth Circuit
for disciplinary review and potential impeachment, and set
forth its findings in its referral letter.
\3\ Judge Porteous treats Article I as if it alleges the
criminal offense of ``honest services fraud,'' in violation
of Title 18, United States Code, Section 1346, and that
because the term ``honest services'' has been challenged as
vague in the criminal context, the term is likewise vague as
used in Article I. Despite Judge Porteous's suggestion to the
contrary, Article I does not allege a violation of the
``honest services'' statute. Moreover, it could hardly be
contended that proof that Judge Porteous acted dishonestly in
the performance of his official duties does not go to the
very heart of the Senate's determination of whether he is fit
to hold office.
\4\ The respective Articles of Impeachment against Judges
Halsted L. Ritter, Harold Louderback, and Robert W. Archbald
each set forth lengthy descriptions of judicial misconduct
arising from improper financial relationships between those
judges and the private parties. These consist of detailed
narration specifying numerous discrete acts. See
``Impeachment of Judge Halsted L. Ritter, ``H. Res. 422, 74th
Cong., 2d Sess. (March 2, 1936) and ``Amendments to Articles
of Impeachment Against Halsted L. Ritter,'' H. Res. 471, 74th
Cong., 2d Sess. (March 30, 1936), reprinted in ``Impeachment,
Selected Materials, House Comm. on the Judiciary,'' Comm.
Print (1973) [hereinafter ``1973 Committee Print''] at 188-
197 (H. Res. 422), 198-2902 (H. Res. 471); [``Articles of
Impeachment against Judge Robert W. Archbald''], H. Res. 622,
62d Cong., 2d Sess (1912), 48 Cong Rec. (House) July , 1912
(8705-08), reprinted in 1973 Committee Print at 176; and
[``Articles of Impeachment against George W. English,''] Cong
Rec. (House), Mar. 25, 1926 (6283-87), reprinted in 1973
Committee Print at 162.
\5\ The Constitution makes it clear that impeachment was
not considered by the Framers to be a criminal proceeding. It
provides: ``Judgment in Cases of Impeachment shall not extend
further than to removal from Office, and disqualification to
hold and enjoy any Office of honor, Trust or Profit under the
United States: but the Party convicted shall nevertheless be
liable and subject to Indictment, Trial, Judgment and
Punishment,

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according to Law.'' U.S. Const., Art. 3, cl. 7. Sec also,
United States v. Nixon, 506 U.S. 224, 234 (1993) (``There are
two additional reasons why the Judiciary, and the Supreme
Court in particular, were not chosen to have any role in
impeachments. First, the Framers recognized that most likely
there would be two sets of proceedings for individuals who
commit impeachable offenses--the impeachment trial and a
separate criminal trial. In fact, the Constitution explicitly
provides for two separate proceedings. . . . The Framers
deliberately separated the two forums to avoid raising the
specter of bias and to ensure independent judgments . . .'').
\6\ As but one example, if the pre-Federal bench conduct
consisted of treason, there could be no credible contention
that such conduct would not provide a basis for impeachment.
\7\ It should be noted that Judge Porteous has testified
and cross-examined witnesses at the Fifth Circuit Hearing on
the subject of his bankruptcy, and the House therefore
possesses evidence that was unavailable to the Department of
Justice.
\8\ As but one example, Article III of the Articles of
Impeachment against Judge Walter Nixon charged that he
concealed material facts from the Federal Bureau of
Investigation and the Department of Justice by making six,
specified, false statements on April 18, 1984 at an
interview, and by making seven discrete false statements
under oath to the Grand Jury. ``Impeachment of Walter L.
Nixon, Jr.,'' H. Res. 87, 101st Cong., 1st Sess. (1989)
(Article III).

The PRESIDING OFFICER (Mr. Franken). The Senator from Illinois.
Mr. BURRIS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BURRIS. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________