THE BLOG
06/11/2010 10:06 am ET Updated May 25, 2011

The Porteous Articles

In August, when the Senate begins the impeachment trial of District Judge G. Thomas Porteous of New Orleans, it will confront an unattractive saga of misconduct by the judge, including accepting money from lawyers appearing before him, ignoring conflicts of interest, and repeatedly not being truthful.

The Senate's "trial by committee" process is unconstitutional and unfair, as I have argued before. But the four impeachment articles against him raise important constitutional questions.

Porteous' unfortunate misconduct should not blind the Senate to the values at stake in the case, which call into question at least two of the four impeachment articles.

High Crimes and Misdemeanors

The case will turn on the meaning of "high crimes and misdemeanors," a term that was archaic and poorly understood when adopted in 1787. In two presidential and eleven judicial impeachment trials, the Senate has applied the standard inconsistently. Must there have been a crime? Sometimes. What kind of crime or conduct is impeachable? Well, it depends. At bottom, the challenged conduct must involve a clear and important abuse of office.

Because the evidence against Porteous has not yet been presented, the articles must be evaluated based on the factual allegations they make.

The first article focuses on Porteous' practice as a state judge in the 1980s of accepting money from a law firm, Amato & Creely, that appeared before him. Undeniably an odious practice, it still provides a weak basis for removing him from a federal judgeship. Impeachment applies to abuse of a federal office, not of other offices.

To avoid that objection, the article concentrates on a federal lawsuit where a party moved to disqualify Porteous because Amato & Creely was on the other side. The judge neither disclosed what his relationship had been to that firm, nor withdrew from the case. Instead, he asked for more benefits from Amato & Creely.

The article, however, is still problematic. Porteous' failures to disclose or recuse probably were not crimes, but violated the canon of judicial ethics. In theory, an ethical violation might represent an impeachable offense, but the Senate has rejected such impeachment articles in the past.

Should there be proof that Judge Porteous shook down the Amato & Creely lawyers during the federal lawsuit, however, this article would be very strong indeed.

The second article also addresses conduct during Porteous' career as a state judge, when a bail bondsman, Louis Marcotte, supposedly provided benefits in return for judicial favors.

This article presents a dilemma. If the Senate removes Porteous for actions pre-dating his federal appointment, it risks expanding high crimes and misdemeanors; there is no precedent for removing a federal official for such previous behavior. If it does not remove him, Porteous will hold a job he never would have received had the Marcotte situation been widely known.

The more important principle is that an official cannot hold a position because the appointment process failed. Though reasonable people might argue over what types of information are relevant to the appointment decision, influence-peddling in a previous public position is certainly one of them. By the same token, the suppression of damning information during the appointment process should not be rewarded with a lifetime judgeship.

Personal v. Official

The third article accuses Porteous of filing his 2001 bankruptcy petition under a false name, and concealing assets and transactions from the bankruptcy court. By focusing on his private life, these accusations raise the question when a personal misstep warrants removal from office.

In 1999, the Senate did not remove President Clinton from office even though he gave false testimony under oath about Monica Lewinsky. Perjury about his intimate life was found not worthy of removal. But for a judge to lie repeatedly in a judicial proceeding crosses the line from private peccadillo to abuse of office.

The final article accuses Porteous of concealing, during his appointment process, his relationships with Amato & Creely and with the bail bondsman, Marcotte. This "catch-all" article is sharply biased in favor of the prosecution. By lumping several charges together, the prosecution hopes to assemble a coalition of votes: some for allegation A, others for allegation B, and still others for allegation C.

Prosecutorial log-rolling has no place in an impeachment. In the last judicial impeachment trial -- the 1989 case involving Judge Walter L. Nixon, Jr. of Mississippi, in which I was defense counsel -- we challenged a catch-all article on this ground. Although the Senate convicted on two other articles, it rejected the catch-all article.

The Senate should apply that precedent to Judge Porteous and refuse to convict on the fourth article.