Judge Thomas Porteous impeachment vote expected after Thanksgiving
The Times-Picayune by Bruce Alpert - September 22, 2010
Now that the Senate impeachment trial for New Orleans federal Judge Thomas Porteous is over, the panel's chair is predicting a vote by the full Senate later this year, probably sometime after Thanksgiving. Sen. Claire McCaskill, D-Mo., who presided over five days of hearings, with 14 witnesses by the House impeachment managers and 13 by Porteous' attorney, said the process was fair and "will stand the test of time." The hearing ended late Tuesday with three senators indicating that they don't buy one key defense argument; that it would be a bad precedent to remove Porteous on grounds he didn't answer truthfully when he said during his 1994 confirmation process he knew of no past conduct that would bring him, or President Bill Clinton, who nominated him, embarrassment. It's one of the grounds cited in four articles of impeachment approved by the House recommending the Senate remove Porteous, 63, from office. A defense witness, Colby College professor Calvin Mackenzie, an expert on federal appointments, testified it would set a bad precedent to remove a judge for answers to such a vague and subjective question. Mackenzie said he knows of no nominee who ever answered the embarrassment question yes, and yet no one has ever officially been sanctioned -- let alone faced removal from office -- for a no response. But McCaskill, the Senate chair, said it would also set a bad precedent if the Senate ignored the "no" response -- if senators are convinced the most serious allegations in the House impeachment articles have been proved. She and others specifically mentioned the charge that Porteous, while a Jefferson Parish judge, took "kickbacks," portions of fees paid to two Jefferson Parish lawyers he assigned to curatorships. Porteous' lawyers dispute the charge.
Rep. Adam Schiff, D-Calif., in questioning Mackenzie, said it is more important that Congress set a high standard for any incorrect preconfirmation statements by a federal judicial nominee because, once confirmed, the nominee gets a lifetime appointment. Other presidential appointees, he noted, can be fired. "The most significant sanction (short of impeachment) against Judge Porteous ... is that he has to take his full salary and he's not allowed to work," Schiff said. Porteous continues to receive his $174,000 salary, but has not been allowed to hear cases since U.S. Judicial Conference submitted allegations to Congress for possible impeachment of Porteous more than two years ago. The 12-member Senate Impeachment Trial Committee, evenly divided between Democrats and Republicans, is charged with submitting to the full Senate an "impartial" report on the testimony and evidence presented during the trial. If two-thirds of the senators voting approve one or more of the four articles of impeachment approved unanimously last March by the House, Porteous would become the eighth judge removed from office and lose his federal pension. Sen. Claire McCaskill of Missouri and Sen. Orrin Hatch of Utah preside over the hearing of the Senate Impeachment Trial Committee on Sept. 13. The Porteous defense team zeroed in on one issue that has drawn significant comment by members of the Senate panel; claiming his attorney suggested filing the judge's 2001 bankruptcy under the name G.T. Ortous to avoid embarrassment to the judge and his family. The filing was quickly amended to list the correct name. Former Illinois Bankruptcy Court Judge Ronald Barliant testified that as a bankruptcy judge he would not have pursued fraud allegations against Porteous because he acted on the suggestion of his lawyer, and substituted the correct name before any notice went out to creditors -- meaning no effort to "impair the system" Barliant said. But he added, "I'm not saying I condone what he did." Also testifying Tuesday was former Jefferson Parish District Attorney John Mamoulides who said that Porteous, as a Jefferson Parish judge, had a good reputation with his prosecutors. "They (assistant district attorneys) had no complaints about the judge," said Mamoulides, who was district attorney from 1972 to 1996. "The judge ran a good office from the standpoint of a trial." Under questioning by Porteous attorney Jonathan Turley, Mamoulides said the Jefferson Parish system was under a court decree to ease jail overcrowding when Porteous served. Often bail rulings were used, he said, to relieve overcrowding and still ensure that defendants would show up at their trials. Porteous, who served as a judge in Jefferson Parish between 1984 and 1994 before his appointment to the federal bench, is accused by the House of issuing bail rulings that benefited Bail Bonds Unlimited, whose executives testified that they provided Porteous with gifts, including trips, free meals, car repairs, bottles of Absolut vodka and buckets of shrimp. Under questioning from Schiff, the lead House impeachment manager, Mamoulides said when he first joined the district attorney's office as a deputy in the 1960s, he was surprised that he and his counterparts could set bail. He said he also received an $80 gift certificate shortly after taking office "for something or another," from a bail bond firm and wouldn't accept it because he considered it improper. Schiff asked several times whether he had a problem with judges taking gifts from lawyers or a bail bond company. "The judges didn't work for me; I was responsible for the assistant district attorneys," said Mamoulides, adding it wasn't illegal for judges to take gifts.
Rep. Adam Schiff, D-Calif, was leader of the five-member House team serving as prosecutors for the trial of U.S. District Judge Thomas Porteous. But after Schiff told him that Bail Bonds Unlimited executives had also taken Porteous to Las Vegas and that the judge had expunged criminal convictions for two Bail Bonds Unlimited employees, Mamoulides said: "I would think it would be improper from an ethics standpoint." Another defense witness, Marrero attorney Robert Rees, said that the process in which Porteous expunged a burglary conviction for Aubrey Wallace, a former Bail Bonds Unlimited employee, was done legally and in a transparent way. He said Porteous personally checked with the Jefferson Parish district attorney's office to make sure prosecutors didn't object. Schiff said it should have raised suspicions that Porteous moved to expunge Wallace's burglary conviction, at the request of Louis Marcotte, who ran Bail Bonds Unlimited, only after he had already won Senate confirmation. Porteous did not take the stand in his defense. Turley said the defense decided Porteous' testimony wasn't needed. Turley has argued that removing Porteous from office would set a dangerous precedent because none of the allegations ever resulted in a criminal trial, like almost all other impeachment proceedings of judges. He also noted that most of the allegations involve activity when Porteous was a state judge, before his federal appointment. His defense team has faced an uphill fight, given that Porteous couldn't muster even one vote in the House of Representatives against any of the four impeachment articles. And some senators expressed frustration with some of the testimony by Porteous' witnesses, including Mackenzie's on the appointment process. "I've sat here patiently through this lengthy testimony of yours, to be honest with you, I don't think I'm any smarter than before," Sen. James Risch, R-Idaho, told Mackenzie Tuesday. Bruce Alpert can be reached at email@example.com or 202.383.7861.