December 12, 2010
The Senate, sitting as a Court of Impeachment, voted last week to convict U.S. District Judge G. Thomas Porteous, Jr. (E.D. La.), on all four articles of impeachment passed by the House. Porteous is only the eighth federal judge removed from the bench by Congress.
Prof. Jonathan Turley (GW) represented Porteous in the Senate. (His argument begins at the bottom of the middle column here.) He raised three "constitutional issues that are rather unique and of considerable concern among law professors and legislators alike":
- Impeachment Article II (alleging corruption, including corruption before Porteous was appointed to the federal bench) "is widely recognized as a pre-Federal claim"--i.e., it involves behavior prior to Porteous's appointment to the bench. Turley argued that no impeachment has been based upon pre-Federal claims, and the Congress shouldn't start here. (Turley references a characteristically excellent Congressional Research Service report on impeachments and removals, with focuses on recent impeachments of Judge Kent and Judge Porteous.)
- Impeachment Article I (alleging corruption in the Lifemark case, in which Porteous had a financial relationship with the law firm representing the defendant, and declined to recuse himself) draws upon an "honest services" theory. But the Supreme Court confined the federal honest services act to kickbacks and bribery last term in Skilling v. United States to avoid vagueness problems--after the House passed its Articles. Turley argues that Congress, like the Court, should reject an honest services theory.
- Each Article relies upon "aggregation." Turley explained why this is a constitutional problem:
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 [Senators] 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."
Prior to the Senate vote on removal, the Senate voted unanimously (94-0) against disaggregating the Articles. Here are the votes on the Articles:
Article I: 96-0, guilty
Article II: 69-27, guilty
Article III (false statements in a personal bankruptcy filing): 88-8, guilty
Article IV (knowingly made false statements to the Senate and FBI during confirmation): 90-6, guilty
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