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A Bad Lawsuit Over Impeachment

I wish Judge Porteous well. If he has committed neither treason nor bribery nor a high crime or misdemeanor, he should not retain his judgeship. But he just filed a dumb lawsuit.
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Author, 'American Emperor: Aaron Burr’s Challenge to Jefferson’s America'

Author, 'American Emperor: Aaron Burr’s Challenge to Jefferson’s America'
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For over a year, a panel of the House of Representatives has been thinking about impeaching District Judge Thomas Porteous of New Orleans. Deciding that the best defense is a good offense, the judge sued the panel, demanding an order that the impeachment investigation cannot consider sworn testimony that Porteous gave to a judicial investigation under a grant of immunity.

This, boys and girls, was a really bad move.

Quick background: Judge Porteous was under criminal investigation for five and one-half years, but the grand jury brought no charges against him. The allegations concern a variety of small-scale graft -- receiving cash from lawyers appearing in front of him while a state court judge, hearing cases when he had a conflict of interest, and bungling his own bankruptcy filing (using a false name!).

And, oh, by the way, Judge Porteous stopped hearing criminal cases in 2003, and stopped hearing all cases in September 2008.

I'm on record arguing that impeachment is too big a deal to waste on federal judges. This was a difficult position for me to take, since my most interesting case was defending a federal judge who was impeached and tried before the Senate, Walter L. Nixon, Jr. of Mississippi. And I've just published a book about the first presidential impeachment, involving Andrew Johnson in 1868.

So what's so bad about his lawsuit? Where to start ...

  • He's trying to stop Congress from considering testimony he gave under oath. Basic truism: That makes the testimony all the more interesting. The response always is, "So what's he got to hide?"

  • Congress has no rules of evidence for impeachments, nor does it follow constitutional protections for criminal defendants. It asks only one question: Is this fair? Looking at Judge Porteous' testimony does not seem unfair. Immunity, shm-immunity

  • Porteous is a federal judge, for heaven's sake. He cannot credibly argue (i) he did not understand he was under oath, or (ii) did not understand that his testimony might be used in some other proceeding.

  • Impeachment is a political process, not a criminal one. The only potential consequence Judge Porteous faces is losing his job (which he is currently being paid not to perform). He will not be sent to jail, and will not be fined or placed on probation. Even if the testimony was acquired in dubious circumstances, the consequences of his impeachment are too limited to generate much judicial sympathy.

  • Ah, judicial sympathy. That commodity will be in short supply for Judge Porteous. Take my word on it. For Judge Nixon, we brought a compelling claim that the Senate failed to provide him with the trial guaranteed by the Constitution. The claim (which I still think is compelling) was heard by 13 judges, all the way to the Supreme Court. We went oh-for-thirteen. Judges don't like other judges who get in trouble. Not even a little bit.

  • Courts do not want to get involved in impeachments. Not even after the impeachment proceeding is over, but certainly not in the middle of one. A court might decide an impeachment case that challenged something colossally fundamental -- say, if the Senate did not actually vote on any impeachment charges, but a conviction was entered anyway. Not much else, certainly not an attempt to exclude evidence given by a federal judge under oath.

    • I wish Judge Porteous well. If he has committed neither treason nor bribery nor a high crime or misdemeanor, he should not retain his judgeship. But he just filed a dumb lawsuit.

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