December 10, 2010

ON THE IMPEACHMENT TRIAL OF JUDGE G. THOMAS PORTEOUS, JR. U.S. DISTRICT JUDGE, EASTERN DISTRICT OF LOUISIANA

Mr. President, one of the most solemn obligations of Senators is try impeachments.  The Constitution provides that the Senate shall have the "sole power to try all impeachments," and that "all civil officers of the United States shall be removed from office on impeachment" for various offenses.  Senators also take a special oath when hearing an impeachment case before the Senate holds an impeachment trial.

I recently heard evidence in the case of Judge Porteous, who would have lifetime tenure under the Constitution unless he resigns or is removed by the Senate.  The House of Representatives impeached Judge Porteous on four different articles.  After deliberation, I voted to convict Judge Porteous of three of the four articles, but voted against conviction on one of the articles.  I rise to explain my not guilty vote on one of the articles.

Article I stated that Judge Porteous engaged in a pattern of conduct that is incompatible with the trust and confidence placed in him as a Federal judge.  The Senate voted that Judge Porteous was guilty on this count by a unanimous vote of 96 to 0.

Article IV stated that Judge Porteous knowingly made material false statements about his past both to the United States Senate and to the Federal Bureau of Investigation, in order to obtain the office of US District Court Judge.  The Senate voted to convict Judge Porteous on this count by a vote of 90 to 6.

I voted against Article IV because, in my view, it was duplicative of Article I.

As a member of the Senate Judiciary Committee, I regularly review the questionnaire and nomination materials for federal judicial nominees who are nominated for lifetime appointments.  One question we ask nominees on our Committee Questionnaire (under oath) is whether there was "any unfavorable information that may affect your nomination."  Judicial nominees also fill out SF-86 personnel forms as part of the executive branch's review of a potential nomination.  One question on the form asks (under oath) whether "there [is] anything in your personal life that could be used by someone to coerce or blackmail you?  Is there anything in your life that could cause an embarrassment to you or to the President if publicly known?  If so, please provide full details…"  The FBI also asks potential nominees whether they are concealing any activity or conduct that could be used to influence, pressure, coerce, or compromise them in any way, or that would impact negatively on their character, reputation, judgment, or discretion.  Judge Porteous answered no to all of these questions.

 I am concerned about the vagueness and catch-all nature of these questions and its responses being the basis of an Article of Impeachment.  I could understand an Article of Impeachment based on a response that hides information that if discovered later would be the basis of impeachment and where a separate Article of Impeachment using these specific facts was not presented to the Senate by the House of Representatives.  Also, I would have understood if the statements in Article IV were included as part of Article I.  Such was not the case here.

 For this reason, I voted not guilty on Article IV.