Only 7 Federal Judges Have Been Removed

History on the side of accused judge; Only 7 have been removed from office

The Times-Picayune by Richard Rainey, East Jefferson bureau - September 21, 2088

U.S. District Judge Thomas Porteous admits he came to depend on alcohol to get through the day and that he was addicted to gambling. He does not deny that he submitted false statements in his personal bankruptcy, on his annual financial disclosure forms and on his application for a bank loan. He concedes that lawyer friends bailed him out of one financial jam after another over the years, even when they had cases pending in his court. His own attorney said Porteous deserves the public reprimand he received this month from his superiors. But Porteous now faces the prospect of the ultimate sanction, impeachment and possible removal from office, in an arena where the standard for conviction is high and the guidelines for booting a judge are open to considerable interpretation.

Federal judges are appointed for life, and the Constitution makes removal of one almost impossible. That's to keep one branch of government from unduly influencing another. Should the House of Representatives approve articles of impeachment against Porteous, he would advance to trial in the Senate, where two-thirds of the members present must agree before he can be convicted and kicked off the bench. To reach that point, members of Congress will have determined that Porteous ran afoul of an eight-word phrase in Article II of the Constitution, where removal from office is required for "treason, bribery or other high crimes and misdemeanors." It is a phrase that has long confounded scholars. "Now, that's been a problem for more than 200 years, and I don't think it's one we can solve," said Carl Tobias, a law professor at the University of Richmond.

Porteous' professional future rests with a special 12-member task force appointed this past week by the House Judiciary Committee. The group has until Jan. 2 to investigate, after which the full committee and then the full House could consider the case. His superiors, on the Judicial Council of the 5th Circuit Court of Appeals in New Orleans and the Judicial Conference of the United States, already have called for his impeachment. But Porteous, his defense team and four dissenting 5th Circuit judges say his caddish behavior is irrelevant when it comes to the Constitution. For the most part, they say, he gambled, drank and lied in his private affairs -- not as a judge. Removing him from office for what they consider private behavior could serve to tighten scrutiny of federal judges, legal analysts say. Only seven judges have been impeached and convicted in U.S. history, and only two of them for misconduct committed outside their official capacity on the bench, they said. Porteous, 62, of Metairie, would be the third.

Wrinkled Robe scrutiny

President Clinton nominated Porteous to the federal court in 1994, after he spent 10 years as an elected judge of the state's 24th Judicial District Court in Gretna. By 2002, when the FBI's Wrinkled Robe investigation of corruption at the Gretna courthouse became public knowledge, it was clear that Porteous, too, was under scrutiny. Two state judges and 12 other defendants were convicted of Wrinkled Robe crimes, but the U.S. Justice Department decided in 2007 not to charge Porteous with a crime.

Once the Justice Department backed off, the 5th Circuit's Judicial Council took up the case against him. The council accused him last fall of making false statements during his 2001 bankruptcy and violating the Bankruptcy Court's orders, lying on the annual disclosure statements that he filed as a judge, accepting cash and gifts from lawyers with cases in his court, lying on an application for a $5,000 bank loan and violating codes of conduct for judges. Of those, the allegation most directly related to Porteous' work as a judge is that he asked for and accepted money from three attorneys who were litigating a dispute about ownership of a Kenner hospital, said Arthur Hellman, a law professor with the University of Pittsburgh who has followed the Porteous case closely. As presiding judge, Porteous never disclosed his financial connections during the trial. Still, no one has demonstrated that Porteous tilted his rulings in exchange for cash, and Porteous has denied that notion. The attorneys were longtime friends of his. "All of my dealings with the attorneys . . . were as a friend to a friend," he wrote. "No gift was given as a lawyer to a judge." The rest of the Judicial Council's case against Porteous accuses him of lying on his bankruptcy forms, bank fraud, lying on his financial disclosure forms as a judge and violating the code of conduct for federal judges.

Dissenting opinions

Four judges on the 19-member Judicial Council deviated from the majority opinion. In a 49-page dissent, they argued that his conduct, however reprehensible, does not warrant impeachment. Judges James Dennis of Monroe, James Brady of Baton Rouge, Thad Heartfield of Port Arthur, Texas, and Tucker Melancon of Marksville cautioned that Porteous had not abused his office and that removing him would only ease the excisions of federal judges in the future. Writing the dissent, Dennis accused the Judicial Council majority of overstepping the Constitution to create "an anomalous and eccentric definition of an impeachable offense." The national Judicial Conference, led by Chief Justice John Roberts, reviewed the case against Porteous as well as the dissenting opinion and agreed that his actions warrant impeachment. Only two federal judges have been removed from office for actions outside the job, the most recent being Walter Nixon of the Southern District of Mississippi in 1989 for lying to a federal grand jury. The first was Harry Claiborne of Nevada in 1986 for tax evasion and remaining on the bench after his criminal conviction for tax evasion. "What the Claiborne case suggests is even if you don't have the evidence of soliciting and accepting the aid of lawyers, the other things add up to impeachable offenses," Hellman said. "How can you trust a person who's willing to lie on official documents?" Hellman said.

Political intrigue

Adding to the intrigue are the political trappings of the case. Unlike a criminal trial, where a jury of citizens usually decides a case while being guided by specific law, impeachment is enacted by politicians in the House and tried by politicians in the Senate. In addition, the four dissenting judges and Porteous were all nominated to the bench by President Clinton, a Democrat. Of the 15 judges in the Judicial Council's majority, 11 were nominated by Republican presidents, including 5th Circuit Chief Judge Edith Jones of Houston, a Reagan appointee; the other four are Clinton appointees.

Porteous' case had stalled in the Democratic-controlled House after the Judicial Conference recommended in June that Congress consider impeachment. But the 5th Circuit's release of previously confidential documents on Sept. 11, and the fact that Porteous is still collecting $169,300 a year in salary while he is stripped of hearing cases, likely prompted the House Judiciary Committee to form its task force, Hellman said. "Releasing everything this time, one of their main purposes was to prod the House into taking action," he said. "That nothing was done in June must have been very troubling to the judges." If the Judiciary Committee's task force finds evidence to go through with an impeachment, the House must first decide whether the 5th Circuit's public reprimand of Porteous and effective suspension, albeit while still collecting pay, suffices as punishment. "That's one of the reasons I think the suspensions is an argument that's not going to be taken very seriously at all," Hellman said of Porteous' continued salary. Lawmakers "don't want any future misbehaving judges thinking they might get away with a suspension." Richard Rainey can be reached at rrainey@timespicayune.com or 504.883.7052.