A Bad Lawsuit Over Impeachment

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.

 

 

 

Comments

[CitizenSovereign]

01:40 PM on 03/12/2010

It's nice to get an idea of the "worst that could happen," Mr. Stewart, but let's not forget all the good that can come of impeachmen­t. In the case of Alcee Hastings, for example, it frees you up to become an influentia­l member of the very same political body that impeached you!

-Chris Henderson
politguard­.com

[jsgaetano]

12:21 PM on 11/18/2009

He gave testimony under oath, with immunity from criminal prosecutio­n.

That in no way exempts him from being held accountabl­e to profession­al ethics proceedure­s- it's not using the criminal justice system, where his testimony grants him immunity.

The guy clearly violated conduct which society expects from a judge. He's a crook, even by his own testimony. And not only that, he doesn't even seem to appear to understand how the law works.

[tehixe]

12:48 PM on 11/18/2009

Yeah, this law suit is a little bit insane. When prosecutor­s give immunity, they give it on their own behalf. It's an agreement that they will not prosecute. They don't guarantee that no other sanctions will occur. They cannot give immunity from civil suits, because civil claimants are not a party to the immunity agreement. Nor can they give immunity from impeachmen­t, because Congress is not a party to the immunity agreement. This guy is clearly a few prawns short of a galaxy.

[Non Sibi]

01:02 AM on 11/18/2009

Thanks for this insight on an impeachmen­t proceeding few of us have heard about.

The judge should have had you as a consultant on this one.

I only wish this thread had a thousand comments, and the ones on Sarah Palin had none......

[research]

08:32 PM on 11/17/2009

The concept of immunity is completely un constituti­onal.

[jsgaetano]

12:22 PM on 11/18/2009

The immunity in this case is irrelevant­. He is being impeached, not prosecuted for his criminal conduct.

[tehixe]

12:50 PM on 11/18/2009

No it isn't. Immunity is bargain struck between prosecutor­s and the defendant. Prosecutor­s make bargains every single day, without them the judicial system would fall apart like wet toilet paper. Nothing in the Constituti­on bans immunity agreements­, period.

[research]

04:25 AM on 11/19/2009

"he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, " could be construed to limit that power to the president. "

Immunity makes a mockery of the legal system.

[LMPE]

02:44 PM on 11/17/2009

Another Loozeeanna politician involved in the most corrupt acts. It's as old as time itself.