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  • To Convict or Not to Convict? It’s Up to the Senate

    When the U.S. Senate reconvenes on Sept. 13, a very rare event will begin in Room 216 of the Hart Senate Office Building: an impeachment trial.

    A specially-formed committee chaired by Sen. Claire McCaskill (D-Mo.) and vice-chaired by Sen. Orrin Hatch (R-Utah), will hear testimony and receive evidence in the impeachment trial of Louisiana Judge G. Thomas Porteous, Jr.  According to the Committee, such a proceeding has occurred only 15 times in our history, while three other impeachments terminated due to the resignation of the judges in question. In fact, the last impeachment trial held in the Senate was in 1999 for someone a little more famous – Bill Clinton.

    Porteous is a Clinton appointee to the Eastern District of Louisiana who is accused of engaging in the type of corruption for which Louisiana is infamous.  The House approved four articles of impeachment (H.Res. 1031) against Judge Porteous on March 11, 2010, in what was probably one of the few completely bipartisan votes of this Congress – there was not a single dissenting vote.

    Before his appointment, Porteous was a state court judge in Jefferson Parish. Porteous had a relationship with a local law firm and a bail-bond company. He is accused of taking free meals, gifts and cash payments from a law firm and a bail-bond company when he was a state court judge, as well as improperly setting aside and expunging felony convictions for two employees of the bonding company. Porteous reportedly admitted to the Fifth Circuit in a judicial disciplinary proceeding that he continued to receive payments from the law firm even after he became a federal judge.

    This matter came to a head when Porteous refused to recuse himself from a federal lawsuit in which one of the parties was represented by the lawyers who allegedly had been paying Porteous off for years. Porteous wound up ruling in favor of that party after having refused to recuse himself from the case. Porteous was also impeached for making false statements in a personal bankruptcy filing to hide his gambling debts and his identity as the debtor. Finally, the fourth article of impeachment is for lying to the Senate and the FBI during his federal confirmation process by not revealing all of his wrongdoing. Why hasn’t Porteous resigned to avoid being convicted? Perhaps because if he resigns, he won’t be eligible for a federal pension.

    Having a committee hold the trial instead of the entire Senate was authorized by a change in Senate rules in 1936, a change upheld by the Supreme Court in 1993 in Nixon v. United States (a case involving former federal Judge Walter Nixon, not President Nixon). Under Rule XI, the 12 members of the Senate Impeachment Trial Committee (six Democrats and six Republicans) will preside over the trial, while House members Adam Schiff (D-Calif.), Zoe Lofgren (D-Calif.), Hank Johnson (D-Ga.), Bob Goodlatte (R-Va.) and James Sensenbrenner (R-Wisc.) will act as the prosecutors.

    Each side will get 20 hours to make their case under applicable Senate rules, and each witness can be questioned by the committee members after they have been examined and cross-examined by the prosecutors and Porteous’s defense counsel, George Washington University law professor Jonathan Turley. The trial committee will report to the Senate on its findings and it will then take “the concurrence of two thirds of the Members present” in the Senate to convict Porteous and remove him from the federal bench.

    Porteous’s defense is based in part on the claim that most of his wrongdoing occurred before he became a federal judge and the decision of the Justice Department not to prosecute him criminally (although Justice said that some of his conduct was barred by the statute of limitations). His legal team filed a flurry of motions with the Senate committee, including one requesting that Congress pay the costs of his defense. The motion was denied. (Porteous must be disappointed that there is no federal public defender program for impeachment proceedings.)

    Porteous also moved to exclude from the Senate trial, on Fifth Amendment grounds, his testimony before the Fifth Circuit’s disciplinary committee and the House impeachment hearings. That motion was also denied because the Committee concluded that the Fifth Amendment’s protection against self-incrimination applies only in criminal cases, and impeachment is a civil proceeding.

    There is a lot of talk these days about supposed delays in the confirmation process of judges. But Porteous is a good example of what can happen when the Senate moves too quickly. Porteous was nominated in August 1994, his hearing was held on Oct. 6, and he was confirmed the very next day by the Senate.

    People often talk about the Constitution on theoretical terms, but this trial is an opportunity to see one of its most rarely-used provisions in action. It will pit members of Congress acting in a very unusual role as prosecutors against a well-known liberal academic acting as a defense counsel. It is a political spectacle not to be missed if you have the time next week and are in Washington, or you can watch it on the Committee’s website at http://sitc.senate.gov/.

    This case is expected to run from 8:00 a.m. to 7:00 p.m. through Thursday before recessing over the weekend and finishing up on Sept. 21.

    Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation.

    Posted in Legal [slideshow_deploy]

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