on the theory that he deprived the public and litigants of quote, honest services by failing to recuse himself from presiding in the lifemark case, that my opposing counsel mentioned to you. this article poses a unique problem for you. for the first time in history, the house based an article of

a impeachment on a legal theory that was later found unconstitutional by the supreme court in the case of skilling versus the united states. that is also in one of those pending motions that we're asking to be heard on. putting aside the fact that the supreme court rejected the honest services theory, and by the way, the house managers knew that case was pending when they crafted that article around honest services. this article seeks to remove a judge over his response to and failure to grant a recusal motion for a single case, in decades of judging. you will hear testimony about hundreds of judges who faced recusal motions around the country every year. and they are occasionally reversed due to personal conflicts in a case with counsel or parties. you will hear from new orleans professor who is a widely cited

expert of the louisiana judicial system. you will see dozens of cases personal conflict with judges, including financial conflicts in recusal controversy. to remove a judge for his decision not to recuse himself would create an absurdly low standard, and could be used against literally dozens of currently sitting federal judges. the use of such an instance amounts to removing a judge because of his judicial decisions, not because of his conduct. what is fascinating is that the lawyers in the lifemark case testified that judge porteous gave them a fair trial, even the lawyers that lost the case testified that judge porteous gave them a fair trial. now, the house brings up this business about $2000, and

alleges that judge porteous' failure to recuse himself was due to a wedding gift that he received, i get to that was split by his to long-term friends, longtime friends and former partners, bob creely, jacob amato. the gift was made in conjunction with the wedding that judge porteous' son, and did not occur until three years after the recusal hearing. now, i know that in impeachment, facts become fluid. and friends suddenly become a crony. suddenly, mr. amato is a crony, according to the house manager. suddenly mr. creely is a crony, not friends. whatever disagreements we may have with their testimony, we don't believe they are cronies. indeed, judge porteous has never challenged their integrity or their credibility, even though

some evidence they gave was painful against him. you will hear from both mr. creely and mr. amato, the two witnesses on this allegation, that they have stated unequivocally that they did not give this money to porteous as a bribe or to influence him. indeed, both have testified that they were and continue to be absolutely certain that the wedding gift had no influence on porteous as a federal judge. it was a gift, a wedding gift from long-standing friends. this is not to say, senators, that there is not a conspiracy in this case. there is. however, the real conspiracy involved judge porteous, not as -- sorry, the real conspiracy involved judge porteous not as a beneficiary, but the subject of the conspiracy. you will hear testimony that a large hospital corporation had

hired an army of lawyers that succeeded in delaying a lawsuit brought against the corporation by a family of pharmacists. at issue was control of the saint jude hospital, potentially worth hundreds of millions of dollars. when this case came to judge porteous, the case had been bounced from judge to judge for years. in that three year time span, the parties had gone through 13 judges. that's over four judges per year. for its part, lifemark seemed eager to keep the case bouncing from court to court, and actually demanded a 14th judge. judge porteous was assigned to this case randomly, and looked

at this record, and said in open court, i'm going to be your last judge. that did not sit well with lifemark or its lead counsel, mr. joe mole. while judge porteous confirmed his close relationship with plaintiff counsel and the subsequent recusal hearing, he stated that he did view that relationship as a barrier to his ruling fairly. and by the way, i also would like you to read that hearing transcript, i didn't see them counted on people. what i did see at the end of the transcript was his working with mr. mole to make sure that mr. mole had everything he needed to appeal him to the fifth circuit. i commend that transcript to you to read, and you can decide he was preventing it -- presenting it more fairly. indeed, you'll hear from witnesses that judge porteous' response to the recusal motion was consistent with his practice and those of his colleagues of

his former state courthouse in gretna. he had been a judge for 10 years in gretna. it was common for judges to hear cases argued by friends, and recusals rarely occurred since most of judges and lawyers in that small legal community grew up with each other or knew each other. you would shut down small town court if judges recused themselves from every case with a friend or an acquaintance. just wouldn't get anything done. after judge porteous refused to pass the case to another judge, that 14th judge in three years, mole took an extraordinary step. the magistrate in the case, jay wilkinson, was a friend of mole. mole wanted porteous gone. and he ultimately went to judge wilkinson's brother, tom wilkinson, the jefferson parish attorney, someone who could help

with a problem with a judge. tom wilkinson is reported under criminal investigation in louisiana for corruption, and his brother, magistrate wilkinson, recently recused himself from all criminal cases. tom wilkinson arranged with mall to have one of porteous' closest friends, tom gardner into the case. gardner, as you will hear, was far closer to porteous and his son and either the plaintiffs attorneys, mr. amato for mr. levenson. mole not only promised gardner $100,000 for just appearing in the courtroom in the case, he promised them an additional $100,000 if he could get porteous to recuse himself or otherwise leave the case. under this effective bounty agreement on a federal judge, mole had just promised another lawyer a total of $200,000 for just appearing in the case and

getting this judge to remove himself. what is remarkable, senators, is that this unethical promise was put into a written contract. and we have that contract. in return, gardner gave the magistrate's brother, tom wilkinson, $30,000. the problem was that porteous wasn't going anywhere. while the mole conspiracy should have been the subject of an investigation, the house decided to call mole, as they just told you, as their witness on the alleged unethical act of judge porteous. now, ultimately judge porteous ruled against his closest

friend, gardner, and cost him that $100,000 bounty, and other possible other fees. with only a gift made years after the recusal hearing, the house try to rely on money given to judge porteous over a 25 year friendship, before he became a federal judge. this is what led those judges in the fifth circuit to write that opinion that i just referred to. the house argued that judge porteous, as a state judge, granted curatorships to bob creely in order to get the occasional loans and gifts from his friend. mr. goodlatte just told you that the judge concedes the relationship between the money and the curatorships. that's news to me and it is certainly news to the judge. we have never conceded that. however, let's look at the actual witnesses. mr. creely recently testified in a deposition conducted by the defense that the senate allowed

us to hold, this was his first exposure to the full examination of defense counsel. in that examination, mr. creely expressly and repeatedly denied that there was any connection between his loans and gifts, over decades of his relationship. that is why you didn't see any quotes from the recent deposition being thrown up on these screens by the house. instead, they went back years to find better testimony. not that long ago, mr. creely, just a matter of a few weeks, said that he gave money to the judge because they were close friends. he testified that he never expected any benefit from such small loans or gifts, and that judge porteous would never give him any benefit. and he stated repeatedly, these

gifts had nothing to do with curatorships. in fact, mr. creely noted in the few times he appeared before judge porteous, porteous ruled against him, including one case where judge porteous cost him a 400,000-dollar judgment. the house continue to advance this allegation on the basis of the statement from amato about what he remembered creely telling him. we have creely. creely just testified and said that he did not give money in relation to the curatorships. he himself has now expressly denied that in a sworn testimony. we can disagree with judge porteous' decision to remain in lifemark. but judge porteous had good reason to refuse to kick this case down the road to a 14th

judge. when you look at that docket, most judges would view that docket as a mockery. someone is gaming the system. you cannot burn through 14 judges in three years. you will hear that judge porteous had a reputation for stopping this type of thing. for moving dockets along and resolving cases. and by the way, if you look at that docket you can tell, a lot of the judges were more than eager to get rid of this case. it was highly complex. perhaps one of the most complex cases i have ever seen. ultimately, this spellbindingly legal complex case was decided by the judge. and by the way, the fifth circuit reversed in part and they upheld in part. but they disagree with the judges were. this was a texas panel.

they disagreed with judge porteous on a rather arcane aspect of louisiana will -- law. i'm not going to explain that arcane louisiana law anymore than mr. schiff did. for one simple reason. i am not sure i understand it. reviewing this case only served to reaffirm my decision to be a constitutional law professor. in the end, however, a disagreement over his judicial decision is woefully insufficient as a basis for removal. and would create -- would elevate a routine conflict issue to a constitutional clash between two coequal branches of government. moreover, the house would have you remove a judge, not only on the basis of prefederal conduct, but conflicted pre-federal evidence. you have two former partners

have now disagreed, and evidentiary status that would not even need a lower preponderance of the evidence standard in a court. once you strip away all the rhetoric, and once you look at all the evidence, you will find that the house's solution to this problem was not to increase the evidence to meet the standard, but as you just saw, to try to lower the standard to meet the evidence. let's turn to article ii. in article ii the house impeached judge porteous purely on the basis of pre-federal conduct that goes back decades before he became a federal judge. this is precisely by the way what the house's own expert said they could not do. article ii alleges while a state judge, judge porteous received quote, things about you from bail bondsman. louis marcotte and lori marcotte, a brother and sister. and took action that benefited the marcottes.

notably, not only did the federal government reject this as the basis of a criminal charge, but the fifth circuit expressly ruled out relying on such acts on the state level as relevant to his positions as a federal judge that the allegations in article ii were not part of the fifth circuit inquiry. the marcottes didn't testify because those judges, as with past senators, treat pre-federal conduct as immaterial. to whether he abused his office as a federal judge. the house position on the bond allegations with the marcottes has continued to evolve as conflicting evidence has mounted in recent weeks. as you will see, roughly a week ago the house stated in its pretrial statement that, quote, the house does not allege that judge porteous set any particular bond too high or too low. so despite months discussing bond amounts and splitting bonds, the house has now

conceded that judge porteous did not manipulate bond amounts to assist the marcottes. what is left is the fact that he signed bonds as a state judge with the marcottes, who by the way, handled 95% or more of the bonds going through that state court. what is left is that judge porteous had lunches and received gifts from the marcottes, as did other judges in the district. yet the government does not claim a single bond, not one, was ever sent, was ever set by judge porteous as too high or too low. moreover, the house concedes that judge porteous did not sign a single bond, not one, for the marcottes as a federal judge. not high, not low, not ever. as a federal judge. putting aside the fact that judge porteous' conduct as a state judge is irrelevant to his conduct as a federal judge.

article ii ignores that judges are not barred from receiving meals and gifts from lawyers or others. while the house cannot produce any receipts for the gifts or meals, just told you it could be hundreds of meals, if that's their evidentiary standard, it could be millions of meals. he could have never stopped eating. the fact is, we don't have the receipts in the record, but we don't deny that judge porteous and all of the judges in gretna often had lunches bought for them. but they are suggesting that this is, quote, corruption even if it didn't violate judicial ethics. you will hear from all four of the house's star witnesses, creely, amato and the marcottes, that all judges in gretna were regularly bought meals, given gifts by lawyers, bail bondsman, and others. we are not saying that this was

a den of corruption, we are saying it was lawful. if you go to a lot of small towns you will see the same thing. and if you want to restrict the rules, you can change the rules. but by the way, we put into the record opinions by court that they say they believe this is a good thing to have judges and lawyers who have social relationships. we have already put that in the record. this is something that is not new. you will see it comes up a lot when people allege these recusals. and uniformly the courts have said don't come to us and just say this guy is a close friend. that's not enough to force a judge to recuse himself, let alone to remove him in a constitutional trial. the house does its best to take a small number of lunches as a federal judge, and make it look sinister. the problem is that the house could only come up with six lunches at a place called the beef connection, in gretna, louisiana, when he was a federal judge. six.

now, what the house did is they presented these lunches, and basically portrayed the total value of the lunches that went to judge porteous. it looked like he received a considerable amount of money in these lunches. however, as this shows the house actually was dealing with a total of meals for large parties where judge porteous was just one of many lunch guests. they just charged the whole lunch against him. in reality, even if he was present at these lunches it would amount to less than $250 in five years. i would like to repeat that. $250 in five years. these meals included meals as low as $29.

now, by the way, i said if porteous was at these lunches. the reason i say if, is because the house include a couple of meals were there was no specific record of judge porteous being actually at the lunch. however, what their position is, is that since someone had absolut vodka and judge porteous is known to have absolut vodka, must have been him. and so they added those two to six and age is counted those against him. now, i can tell you in a visit to the beef connection, were able to confirm that judge porteous was not the only person in louisiana who drinks absolut vodka. but as you can see, the key fact that relied on is a notation that somebody at this table had two absoluts.

and they said they did that to you so you could throw in the mix of removal of a federal judge. the house suggest that such meals from the marcottes were intended to influence judge porteous and get him to help them with bonds, a type of beef for bonds theory. that by giving him beef, they would give him bonds. of course, now the house concedes that they are not say that he set bonds too high or too low for the marcottes. you added in his insight any bonds that were invalid where this guy didn't even deserve a bond. after our deposition with the marcottes, the house had to concede this point. you will hear from both of the marcottes, if their testimony is consistent, that they did not believe that judge porteous was influenced in his decisions on bonds by meals or gifts.

there was no beef for bonds. indeed, they both testified judge porteous rejected bonds from them and could not be bought. you will hear from gretna criminal clerk darcy griffith that porteous insisted that any representation made by the marcottes he checked out with the district attorney, the police or the jail before the granting of a bond. indeed, you will hear testimony that judge porteous himself often picked up a phone, called the prosecutors, called the jail, to personally make sure that the underlying facts were correct. perhaps the most serious misrepresentation to the house was the portrayal of judge porteous' granting bonds and splitting bonds. a split bond is well-known to criminal defense attorneys. it is simply split between a commercial component and a property or third party component. in this way a person who might not be able to afford the full or entire bond could still

secure the bond by getting a family member to come in and put her property up as a surety. despite the reputations made in this case, judge porteous did not invent split bond. most judges, and you will hear testimony, most judges in gretna split bonds with the support of the state prosecutors. split bond reviewed as a way to the return oppressors who would otherwise be released under mandatory court order. if you have a bond on the guy, someone will find him because i have a financial interest to find him. you will hear from former district attorney john mumma leaders, and louisiana judge, on how and why split bonds were widely used and accepted in gretna. likewise, the house -- dramatically increased the

number of bonds as he was leaving to take the bench. this was a big part of what the house was told. there was this, the called floodgates theory, and you heard part of it today but you will notice that they stop talking about the bonds suddenly. and now they're talking about expungement, one or two expungements. the floodgates theory the house members were told about was that in the last month, in the last day, judge porteous issued an unusually high number of bonds in repayment for the beef to the benefit of the marcottes. the only problem with the floodgates allegation, it happens to be completely and demonstrably untrue. it turns out that there was only one bond signed by judge porteous on his last day, and only 29 signed in the last month. it actually falls to 27 if you look at from the time he was confirmed. this is described by the marcottes in their testimony as the average number of bonds for

any period. there's no floodgate. however, to dispel any doubt we asked the gretna clerk to send us a random year from judge porteous' 10 years as a state judge. we selected 1986. we had no information on that year, other than the fact that it was before the marcottes established themselves in the bond business. one of the best ways to look at whether the floodgates theory is true, take a year before the marcottes controlled the business. those bonds have been submitted into the record and show that there is months of the year exceeded the number of bonds signed by judge porteous during the so called floodgates month in 1994. even though the marcottes were not involved. indeed, one month, september 1986, showed 51 bonds signed by judge porteous, far

greater than 19 bonds that were presented in this sinister way. this must have been a rush to try to pay back for the beef. moreover, the 1986 records show a total of approximately 3200 bonds signed by all judges in the district. now, if we extend that over 10 years, and by the way, the numbers should be higher because gretna over the years expanded and the court system actually expanded, but let's just take that lower figure and forget about expansion. that would mean at least 32000 bonds passed through gretna while judge porteous served on the bench. the house was never told what the total pool of bonds were. they were never told that judge porteous signed more bonds in some months before the marcottes

wallace's burglary conviction was set aside on september 1, 1994, before judge porteous was confirmed. not only that, in the hearing, judge porteous said he intended to expunge the record report he was confirmed. i was in open court. all that remains in this case is the fact that judge porteous sign bonds for the marcotte. fuel your although dogs signed for the marcotte for one simple reason.

the marcotte did 95% or more of the bonds. virtually no one else is doing on thin gretna. if you take any judge, you will find lovely 95% of the bonds came from marcotte for that obvious reason. moreover, you will hear testimony that judge porteous was a national advocate for the use of bomb as a vital part of the criminal process. jefferson parish during this entire period was under a court order for overcrowding. it was a case where virtually any prisoner in bed one prisoner out. it was one of the most stringent court orders in the nation. and so, people, thousands of felons were being released under court order and were just vanishing. and these judges and gretna would constantly call these people and they would just be told they are gone.

judge porteous -- and wait for the houses on witnesses admit this, often spoke publicly encouraged other judges to use bonds because the chance that a person will return if they have a bond on them is much, much higher because you got a bill jumper agent who will find them. otherwise, the only way these people would be found as they get pulled over by a police officer and happened to run the record and say you are a bond jumper. but if you put a bond on them, someone is a clear financial interest to locate that site into it. in fact, judge porteous who has spoken nationally on this was correct. studies show by getting a bond on any prisoner, the chances that they will end up in court and not fully or at least not flee them be found are much, much higher. in the end, when you take all this evidence and strip away the false claims, article ii is

nothing more than what they best described a tale full of sound and fury signifying nothing. he sign bonds to the judge like the other judges and gretna. let's turn to article iii. now, we actually agree with other managers when they say this is the one that isn't based on free federal comment. we actually proved that appeared article iii is in fact it's a non-pre-federal conduct article. instead -- basically what they are arguing is that if pre-federal conduct is he made a series of errors in connection with a bankruptcy that tina slate escamilla filed in 2001. what is most striking about article iii that the house is trying to use common problem that could really occur in hundreds of thousands of bankruptcy cases, which you hearing testimony.

they are trying to take something that occurs in hundreds of thousands of cases and faith be it came to things like treason and free. to do this, how suggests these errors are part of a nefarious way in to defraud bankruptcy court for his creditors. the problem with this theory is that judge porteous -- i want to emphasize this, paid more than he was scheduled to pen bankruptcy. he paid more than what originally he was scheduled to pay to his creditors. that was never explained to house members. they just talk about this bankruptcy and errors in the bankruptcy as if that isn't a new and bankruptcy. it's thousands of citizens each year, judge porteous made mistakes in a personal bankruptcy case. those mistakes have nothing to do with the basis for removing him as a federal judge. the porteous is filed chapter 13

bankruptcy protection in 2001. this case was processed like every other bankruptcy case with one exception. but ultimately resulted in the successful discharge of the portion of their debts in 2004. after they paid more than $57,000 to the trustee of which 52,000 were to their creditors, the exception i was referring to was that this case was scrutinized far more heavily than a bankruptcy case. he had to bankruptcy judges preside over. a chapter 13 trustee, mr. barliat administered the federal bureau of administration and the department of justice investigate. in fact committed doj and the fbi specifically met with the bankruptcy trustee while the porteous bankruptcy case was still pending.

this wasn't after. they met with the trustee while it was pending and discussed with them all the delegations. nevertheless, never one of these authorities, not bankruptcy churches, not the trustee, not the fbi, not the doj, take any steps to alter the bankruptcy case. there simply was no part to be heard to change the status of the bankruptcy case. what's more, the doj specifically declined to pursue criminal charges against judge porteous in connection to this bankruptcy case. as you know, the doj routinely prosecutes bankruptcy. finally, none of the porteous creditors ever made an objection or file the complaint. they had no problem with this bankruptcy. the porteous is, like so many americans simply became overwhelmed with their mounting credit card debt, which is a result of raising kids in at the

house managers keep referring to the fact that the campbell. alright come the secret is out. the porteous says campbell. they gambled for recreation. they probably campbell too much, but that's not illegal. with credit card bills mounting, they sought the help from a bankruptcy attorney that the house managers referred to earlier, mr. lightfoot. embarrassed about their deteriorating financial situation, they asked mr. lightfoot to help them work out or restructure their debt. this was an effort to avoid bankruptcy they work through the suer and they worked through the summer and fall of 2000, in the winter of 2001, to avoid bankruptcy.he and then, they concluded they would have to declareghtf bankruptcy, as mr. lightfoot tried to work with the creditors.ruary 01, it so, february 2001 it becameto fr clear that they had to file fory

bankruptcy.e an and like many of us, in that case, and certainly most of they people in bankruptcy, theereho porteouses were shown to be horrible recordkeepers, and obviously bad money managers.n that's a fair will -- fairlybank common trait of that when people declare bankruptcy. they tend to have problems with. records and money management.t e during these discussions of mr. lightfoot proposed the idea that the porteouses file their original bankruptcy petition or under the pseudonym ortous. let me repeat that. mr. lightfoot proposed that thet file under that name. barras he presmviously testified to tht effect. or he said it was his idea to avoih embarrassment for the porteouses, and for their children. caususe they didn't want it plastered all over "the times-picayune."he im the newspaper in 2001 publisheds weekly names of everyone who ever sought bankruptcy protection,

and carmela was particularly embarrassed by that type of publicity for the family. while most bankruptcy filersinva enjoy anonymity through this process, involving so many ase cases, public figures were andse are singled out other bankruptc as fng. and as public figures yourself,r i'm sure you can understand these filings are examined inuci excruciating detail it andt. people love it. they love to read about bank bankruptcy of famous people. avoid to avoid this, mr. lightfoot proposed that the porteouses file their original bankruptcyrn petition under the pseudonym, seso u and they also use a p.o. box that mr. lightfoot advised judgu porteous to obtain.ain. mr. lightfoot has testified that neither he nor judge porteous ever intended to defraud the

court, and any of porteouses creditors are so evident that he wan mr. lightfoot proposed the change at the same industry tora assist in a front.sious his purpose was obvious. and, frankly, was humane. he was trying to protect the family from the initialem embarrassment of bankruptcy.ba the porteouses, however, when they filed those original papers included their true social security numbers.ers as yoush yu those nrumbers as you will heare are very important in bankruptcy because that's what is used to track, that's what creditors use trusrack people in bankruptcy. trustee bolio later stated thatt he had seen the use of p.o.t-el boxes in other cases, and that since the names were changed h before the first notice went tot creditors, he said, oh, no harm, d foul.ut 12 s cause what you have toseveralr

understand is that the names noh were changed about 12 days latef so no creditors actually gotby n mislead.use there were no creditors that ak were misled.l and the trustee himself said thek, it's no harm, no foul and you also hereby the way, even though the house makes this great deal about the use of a p.o. box, p.o. boxes are used over time.ntly comthe maybe not a violation.id the trunostee was no harm, no fl fedehouse to rent and said, maybe no harm, no foul but let's use it to remove the eighth e federal judge in history of the republic. pl they specifically planned to to file and, in fact, they did file an amended complaint in 12 days correcting the name and addressd as a result, no creditored any n received any notice in connection with the porteouses,h without full and accuratet fundr information.inhe in the end, the only party thate did not get information was "thn times-picayune," but i was only for a short time.quickly begarun and "the times-picayune" quickln

began running the very newsdecih stories that mr. lightfoot andat the porteouses wanted to avoid. throughout the bankruptcy process, especially in th connection to the decisions dg about what information to include in these filings, judge porteous relied heavily on mr. lightfoot.he's as a federal judge i think you'd understand most of the federaliu judges do not have expertise ind bankruptcy.o errorsand the house has further alleged a ptcy series of other areas and s inaccuracies in the porteouses bankruptcy schedules and tterial.the e argued the house argued that each ofrt of t these discrepancies must be part of a dark plan to go off the bankruptcy system for his own f game. sply here again, the facts simply don't support the allegationsd and the allegations, even if to by the way, even if you take everything that my colleagues from the house have said today, it would still not what the remo basis for removal.

the house decided small omissions of assets to suggest the creditors were defrauded, however, the house never tolde r the house members that thebanku. porteouses were in the minorityh of debtors to successfully complete their bankruptcy. they were in the minority. of debtors who completed their bankruptcy. indeed, they provided almost 35s repayment to unsecured creditors, and over $52,000.yout you will hear from experts, former judges and trustees, that this is actually significantly than would have been the case would have been the case under . chapter seven liquidation.ies oe the house also relied on the 20 fact that judge porteous gave lightfoot hisd may 2000 a steppe towards income, but he laterght didn't supply and updated paystub, reflecting a slight increase in salary.nform what tthhe house did not inform

the house members was that this difference amounted, not just to only about specifically $173.99, but that it had no material impact on the creditors. who were paid $52,000.ell him moreover, lightfoot's file shows that judge porteous did tell hil that his net income was higher. he did tell him. he did reveal it. it. and reveal that it was higherhen than that earlier paystub. the errors were his counsel ande not judge porteous. and by the way, once again, i'm not casting dispersion on mr. lightfoot. e these are very small things that happen in bankruptcy.ptcy. when when you have all these receiptd coming from people who have trouble managing their money.roh likewise, the house sites such

errors as a bank one account that you just heard about this. that had as low as $200 in assets, that's about a clevero design to defraud creditors. des that really make sense? im, $200?ere' t then there's the fidelityn accon t.mestead association account. a now here, you didn't just have $200.3.42 we can see that.'s r you had $283.43. toe so let's round it upwards, shal? we, let's say it's $300. iis is that going to be relied on for the removal of a federal judge after 16 years of servicet whether it's a tax refund check or a single credit card, theseut problems are routine.tell that's what these experts are going to tell you. moreover, errors cited by housee members were actually notmaterie material to the bankruptcy planf such as this business of small

pre-petition payments that weren not listed.this j the house members heard. they were prepetition paymentses that you should consider to impeach the judge. l the problem is that prepetition payments are legal under bankruptcy law.th while the house site entry newit debt there is no bar to r concurring debt by statute.e mationer that it's important to remember thatd the confirmation order that youo are going to hear about wasmplet design to complete, to guarantef completion of the repayment don't mostc people don't complete it.s the porteouses did.- they completed it and paid more under that plan. now, throughout these allegations the house mentions errors and mistakes, but neverin mentioned that those intentions had no impact, material impactny on creditors who are, after all, the focus of the bankruptcybothe process. both the porteouses gambled as their primary form of o recreation.a practi a practice that judge porteoust

later stopped with professional help, and hasn't resumed since. however, the house managers kees on trying to distract the senate, as they did the house, g by without disclosing -- by without disclosing markers, that's what you'll be hearing about.maker. that is a marker.to be that's what you'll be hearing about. in the dissent in the porteousis case before the fifth circuit, e judge and his colleagues objected to the use of markers wroing i as evidence of wrongdoing in bankruptcy matters, because and i quote, under louisianaecks commercial law markers are by considered checks as defined bln louisiana statute. they treat this as an uncashed check. should they continue to gamble?o no.

but in the end, this continued port gambling was not a problem foree the creditors of the porteouses. it was a problem for the porteouses. it was a personal problem. that we will be creating a record that was never made in the house on this issue of bankruptcy. you will hear from professor from the university of iv washington who will explainnt ff important differences between 1a chapter nkseven and chapter 13 bankruptcies, that the house appears to have missed in the earlier discussion. he will show errors like these that were quite common by both debtors and creditors indge f te bankruptcy cases, and thatf mistakes in this case created no material harm to creditors but you also hear from united states bankruptcy judge of the northern district of illinois, rod, who is widely cited and respected iy this field. judge barnett will explain toder chapter 13 case is developed,cyn had judges in bankruptcy rely or

trustees, like magistrate bolio. he will explain how thethat. bankruptcy code contained no authority for an order barring a data for incurring debt afterdn bankruptcy.we wil simply as that.principacons something the house didn't mention to the house members.rid he will also explain that ha congress has specified that the principal consequence forsimprge unauthorized debt is that the debt is simply not dischargeable.ve that's the consequence. if you have that debt it is not dischargeable.ed in would say that significantlya different in magnitude than being removed in a senate trial as a federal judge.united you will also hear that the united states, united states, from the bankruptcy trustee,rl hank hildebrand, we will call aa separate trustee.trustee. magistrate hildebrand is another

leader in his field, has worked extensively, his opinions are simp cited quite widely.lynto the you will explain a chapter 13 is a voluntary repayment program and that the most serious problem simply results in the threat of a dismissal of thealln case. and that that threat is usually withdrawn as soon as the problems are remedied. he will explain how chapter 13a3 debtors frequently fail toently complete plans.fl explain he will explain that 55% of debtors fail to fulfill the th plan. and that the porteouses were inu the mseinority in successfullymt paying, completing and payinging more to the creditors.tors. none of these issues wereplaineo explained to the house. instead the house impeached a hr federal judge on errors that did not materially affect its creditors. did not complete him from completing his bankruptcy plan or paying creditors that he was this wally told.d. this would take the senate frome standard citing such crimes as treason to the removal of ason h judge, based on such things as a ju $200 ddgiscrepancy on a credit$s

card. let's move to the last article. as with article ii, article iv l seeks judge porteous' removal on the basis of pre-federalnfiron conduct going back decades.the h this time under the guise of a failure to disclose such conduct during confirmation. the standards the house seeks to oppose is frankly absurdly subjective.assing tre did judge porteous fail to assulose information that he, judge porteous thought would beh embarrassing to president clinton.ate and thhe assuming judge porteous thought he had done nothing wrong or appropriate, and as we've been presenting evidence about them b he would think it would not be investing to him for president t eminton. even ibaf the senate comes to te conclusion that judge porteousae acted improperly and should put something of these floating it ' allegationst down, you can't

conclude that he thought theseae actions were improper and, therefore, embarrassing without concluding that judge porteous acted with the intent to bether deceive.fo there's no basis of thate evideh conclusion. t the evidence will show the pelicans allegations contained in thisomd article are also completely ando demonstrably untrue.untrue. i'm not saying challenged. i'm saying untrue. for example, the houseached specifically impeached judge o porteous on the failure to mention a brief conversation he had with louis marcotte. hea now, you didn't hear this ti mentioned by the house managerrr in their presentation. but boy, it was mentioned before.gers but more important it's in the article. sai the house managers have said that the judge should be impeached because he failed to mention this conversation when he filled out these forms. when he filled out theround form background form. thonly p the only problem is we revealede

after the house impeached this,n judge, the conversation occurred after the forms were filled out. it was impossible for him to put into these documents a co conversation that hadn't occurred yet. moreover, even if you believe jm that a judge when someone like t marcotte comes to him and says gave you a clean bill of health. by the way, the most common thing that background witnessesd tell nominees, i gave you a heal clean bill of health. if even if you believe there's thee something wrong with them, not the neatly picking up the phone and sync i would like to submit a supplemental filing same diskt i gave a clean bill of health, even isf you think that warranti an impeachment, it couldn't havt happened in this case the waynen the article stated. stated. indeed, i believe this is the arst impeachment that i know og where a fact contain an article of impeachment simply did nott occur.

the embarrassment question, ases thu know, as senators, is universally answered in the negative by a nominee.ees. even though there are many cases where some embarrassing factss r are, in fact, disclosed. testimony from experts will show you what the figures are like on this, what the cases are like. but nominees routinely omit financial even a criminal histories from the backgroundsb reporting.omsions omissions that occurred in thect cazens of high profile casesns that resulted in no action, no action.the taken against the nominee, the including some cases where thecv embarrassing facts were revealey before confirmation, and they were confirmed.r ships we in but they were confirmed. for the mark the evidence will show that judge porteous issuee'

is a bond intuitions are in lin with other judges.i there is no reason why he would say this is embarrassing because i did something all of us in gretna did. not because it was corrupt butl. because that was how it was done.e'll show the ba it was not illegal. articl finally, we will show that the basic allegation contained in article iv were known by the fbi and the senate committee beforee judge porteous' confirmation. this is precisely what theferred house's own experts warned of could not be the basis for removal.cn. the pre-federal conduct referret by the house was not at the time of confirmation. we have put in the record proof of that. ce the house numbers were never discus told that before impeachment. once again, this was never discussed or disclosed to the house. we found new evidence before the senate. nate. moreover, not only are cr curatorships and bonds mattersro

of public record, that judge no porteous took no effort to conceal, they were in fact the n same records and actions all of the judges. tsti you will hear testimony fromckza professor mackenzie who is widely viewed not as a leader in this field, he is viewed as then leader in this field. he will umerous books on the confirmation process and background investigation. you will hear testimony of the failure to make disclosures is common among federal nominees, with literally dozens of these cases.senors as senators, we admit we probably don't have to tell you, you deal with it regularly. you have seen countless such and i questionnaires, and i daresay io would be surprised if you know of many questionnaires where someone answered the ambarrassment question in the negative. but professor mackenzie will .ative show you dozens of cases where it was answered in the negative and either before a successful confirmation or after,rra embarrassing things were disclosed.d, n not just for judges but also justices.oulde the b

if this could be the basis of removal, think about it. congress could sit on a qu a judge nd questionnaire and simply remove a judge at will for failure to disclose. you can just file these thingsno and find things you think heemba should have thought wasicalrticl embarrassing, and bring them up on the identical article,article article iv. iv, li literally dozens of judges could be removed on the same ground. judges sitting today on the federal court.cort. in this case the house want you to remove a judge on a failurews to disclose information that hea did not consider relevant ore dd embarrassing when those allegations were already known by the senate and the fbi.uld in closing, i will note that in on only lya couple of months of representing judge porteous,ous, we've been able to show fundamental errors, contradictions, and withheld evidence in the case.

this is the peril of proceedingf to an impeachment without ato a prior criminal trial.nts wait fr that's why congress has in alla, modern impeachment waited for ay criminal trial. and even if the trial by theyo o way,m doesn't stop you from hed to impeachment, but was it --tl but what it does give you is a trial record. indeed, late last night we received new evidence, long held by the justice department, literally hours before theselite proceedings began.foegan. the record in this case continues to change, not by thee week, not by the day, but by the hour.osures i will only submit to you, impeachment trial should not bet a work in progress.t subject to casual or incomplete disclosures. don y th it's more important than that.l indeed, we don't believe today that we've received all of the

dictation. in the end, you have to decide whether judge porteous once the extraordinary action of removal for only the eighth time in the history of this republic. while the fifth circuit sent the congress this case to consider, for judges to the trouble to write a 49 page opinion, warning view, speaking directly to you that this case would eradicate core constitutional standards that protect the independence of our court. it should not occur, as some people seem to indicate, simply because someone is dressed up for an impeachment would be a disappointment not to dispatch the accused. it should not occur as the managers suggest because you decided to drumcree the constitutional standard to a type of virtue or give job interview. the impeachment standard speaks

to all judges. you don't have the option of saying well, it's close enough for jazz and just remove a judge on innuendo and conflicted five. the house case is going to be exposed in this room for the first time to a fully adversarial process. please give us a chance. what remains after all the half-truths and distortions melts away will dictate not just the future of this judge, but the future standard for all judges. we ask only that you, like her predecessors, mind the constitutional mind. my colleagues and i are now ready to address these allegations and we are now ready to present the case in defense of the united states district court judge, g thomas porteous junior. thank you very much. >> thank

>> [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] >> proceedings from the senate impeachment trial committee's hearing of judge thomas porteous

of louisiana from september of this year. today the full senate will take up the trail. george portis is accused of corruption and line. the house impeached him last month. the senate is considering whether to remove him from the judiciary. the senate today will take a break from the trial at about 12:30 p.m. eastern went florida senator plans to deliver his farewell speech. he was a temporary appointment to fill the seat of mel martinez. marco rubio was elected to take the seat in january. senators will recess this afternoon at about 12:45 and they will return at 2:30 p.m. to continue the trial which is expected to go until tomorrow. the house will be for legislative work at to eastern. 16 bills and resolutions are expected. you can see live coverage on our companion network c-span. now to live coverage to live coverage of the sent here on c-span2.

the presiding officer: the senate will come to order. the chaplain, dr. barry black, will lead senate in prayer. the chaplain: let us pray. eternal lord god, you are our refuge and strength, a very present help in trouble. because of you, we need not fear, though the earth be

removed and though the mountains be carried into the midst of the sea. on this day when we remember pearl harbor, we thank you for the protection of your loving providence. you protect us from dangers seen and unseen. you sustain this nation through seasons of distress and grief. you raise up leaders who possess the strength, wisdom, and courage we need to meet challenges. you are a generous and awesome god. may the memories of your watch care infuse us with optimism about what the future holds. keep us from fearing impending

storms by reminding us about the way you have led us in the past. today, use our lawmakers, the members of their staff, and the thousands who work on capitol hill for your glory. especially guide our senators during this impeachment process. we pray in your great name. amen. the presiding officer: please join me in reciting the pledge of allegiance. i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation under god, indivisible, with liberty

and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington, d.c., december 7, 2010. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable tom udall, a senator from the state of new mexico, to perform the duties of the chair. signed: daniel k. inouye, president pro tempore. mr. reid: mr. president? the presiding officer: the majority leader is recognized. mr. reid: senators should be prepared to be in the chamber throughout the day on the impeachment of -- impeachment trial of g. thomas porteous jr. at 12:30 the senate will proceed to morning business with senator lemieux permitted to speak up to 15 minutes. following his remark senate will recess until 2:30 p.m. for caucus. there may be another live quorum

at 5:30 to begin the closed session deliberations. mr. reid: mr. president? the presiding officer: the majority leader is recognized. mr. reid: note the absence of a quorum. the presiding officer: the clerk will call the roll.

quorum call:

mr. inouye: the quorum is present. under the previous order, the hour of 10:12 having arrived and a quorum having been established, the senate will resume its consideration of the articles of impeachment against judge g. thomas porteous jr.

the house managers and judge porteous and counsel will please make their entry before the proclamation is made. the president pro tempore: the sergeant at arms will make the proclamation. the sergeant at arms: hear ye, hear ye, hear ye, all persons are commanded to keep silence on pain of imprisonment while the senate of the united states is sitting for the trial of the articles of impeachment exhibited by the

house of representatives against g. thomas porteous, jr., united states district judge for the eastern district of louisiana. the president pro tempore: the chair recognizes the majority leader. mr. reid: mr. president, on march 17, 2010, the house of representatives exhibited to the senate four articles of impeachment against u.s. district judge g. thomas porteous, jr., of the eastern district of louisiana. judge porteous was summoned to answer, which he did on april 7, 2010, and the house of representatives filed a reply to the answer on april 17, 2010 and amended the reply on april 22, 2010. on the same day that the articles of impeachment were exhibited to the senate, members present in the chamber were administered the oath, as required by the constitution for impeachment trials. those senators who were not present to take the oath, and those who have been elected to this body since the oath was administered, should be sworn today. however, before the oath is administered to those senators not yet sworn, there is one preliminary matter to be addressed.

the senator from illinois, mr. kirk, was a member of the house of representatives during this congress when the house voted on the articles of impeachment. if the senator wishes to make a statement about his participation in the senate phase of this impeachment, this would be an appropriate time to do so. mr. kirk: mr. president? the president pro tempore: the chair recognizes the junior senator from illinois. mr. kirk: thank you, mr. president. i was a member of the house of representatives at the time the articles of impeachment were proffered against judge g. thomas porteous, jr. on march 11, 2010, i voted in favor of all four articles of impeachment in the house, as recorded in roll call votes 102, 103, 104 and 105. i have given careful consideration to this matter and consulted with other members of the senate about senate historical practice, i believe that the judge is entitled to a full and fair hearing in the senate and to avoid any possible conflict of

interest, i have concluded that under the circumstances it would be inappropriate for me to participate in the senate trial and to vote again on matters related to this impeachment. having already done so as a member of the house of representatives. therefore, i request that i be recused from sitting as a member of the senate while it hears the matter of the impeachment proceedings against judge porteous. mr. reid: mr. president, i would -- the president pro tempore: mr. kirk is excused from further participation in this impeachment for the reasons stated. the majority leader is recognized. mr. reid: mr. president, i would first ask that the house managers and judge porteous and counsel will take their seats. there's no reason at this time to remain standing. mr. president, the

remaining preliminary matter is to administer the impeachment oath to the other newly elected members of the senate, and any member of the senate who did not take the oath when the articles of impeachment were first exhibited. article i, section 3, clause 6 of the constitution provides in part: the senate shall have the sole power to try all impeachments. when sitting for that purpose, they shall be on oath or affirmation. the impeachment oath that was taken by members of the senate earlier this session remains in effect. the four current members who did not take the oath at that time have been so advised by the secretary of the senate. the two newly elected members also should be sworn now. the president pro tempore: those senators who have not taken the oath will now rise, raise their right hands, and be sworn. do you solemnly swear that in all things appertaining to the trial of the impeachment of g. thomas porteous jr., judge of the united states district court

for the eastern district of louisiana, now pending, you will do impartial justice according to the constitution and laws. so help you god? senators: i do. the president pro tempore: the majority leader is recognized. mr. reid: thank you, mr. president. the secretary will note the names of the senators who have just taken the oath, and if these senators will now present themselves at the desk, the secretary will present to them for signature the book, which is the senate's permanent record of the taking of the impeachment oath by the members of this body.

mr. reid: mr. president, on march 17, 2010, the president pro tempore appointed, pursuant to senate resolution 458, senators mccaskill, hatch, klobuchar, whitehouse, udall of new mexico, shaheen, kaufman, barrasso, demint, johanns, risch and wicker to perform the duties provided for by rule xi of the senate's impeachment rules. under the leadership of its chairman, the

senator from missour, mrs. mccaskill, and its vice chairman, the senator from utah, mr. hatch, the committee heard five days of testimony between september 13 and september 21. during that time the committee heard from 26 witnesses, 14 who were called by the house of representatives and 12 witnesses who were called by judge porteous. the committee also conducted pretrial depositions of four witnesses and admitted into evidence the testimony of a number of witnesses, including judge porteous, who had testified in prior proceedings, more than 300 factual stipulations, and hundreds of exhibits. mr. president, the senate is indebted to all of the members of this committee, who so conscientiously discharged their responsibility in this important constitutional matter. in addition to the committee's leadership, i would like to take particular note of the contribution of senator kaufman, who actively participated in the committee's proceedings, although his tenure in the senate concluded before the committee filed the report of its proceedings in the senate. the committee filed its report on november 15, and the report was received as senate report number 111-347.

in accordance with impeachment rule xi, the committee certified that senate hearing report 111-691, which reprints the committee's proceedings, is a transcript of the proceedings and testimony had and given before the committee. before proceeding further, i would like to verify with the presiding officer that the evidence and testimony received by the senate from the committee shall, as prescribed in rule xi, "be considered to all intents and purposes, subject to the right of the senate to determine competency, relevancy and materiality, as having been received and taken before the senate." will the presiding officer advise the senate whether this is correct? the president pro tempore: the majority leader is correct. the testimony and other evidence reported by the committee will be considered, in accordance with impeachment rule xi, as having been received and taken before the senate. the majority leader is recognized.

mr. reid: thank you again, mr. president. rule xi provides that the senate's receipt of evidence reported by the committee is subject to the senate's right to determine competency, relevancy and materiality. further, rule xi explicitly provides that nothing in it prevents the senate from sending for any witness and hearing that witness's testimony in open senate, or by order of the senate having the entire trial before the full senate. i would ask the presiding officer advise the senate whether, following the report of the committee, any motions have been filed asking that any witnesses be heard in open senate? the president pro tempore: in response to the majority leader, neither party, following the report of the committee, ha moved that any witnesses be called in open senate and the senate may now proceed to hear final arguments on the basis of the record reported by its committee. and the majority leader is recognized. mr. reid: mr. president, the parties have filed their final written briefs, and the senate is now ready to hear argument.

prior to consideration of the articles of impeachment, judge porteous has requested time to present argument on three motions that take issue with the sufficiency under the constitution of several aspects of the impeachment articles framed by the house. first, judge porteous has moved to dismiss article ii, or for alternative relief, based on the house's inclusion of allegations of misconduct occurring prior to the commencement of the judge's federal service as a united states district judge. second, judge porteous has moved to dismiss article i, or for alternative relief, based on the house's inclusion of unconstitutionally vague allegations that judge porteous's conduct deprived the public of its right to the honest services of his office. third, judge porteous objects to the manner in which each article of impeachment was framed to aggregate discrete allegations of misconduct. he accordingly moves to dismiss the articles of impeachment or seeks alternative curative

relief. the parties' written arguments on those legal issues are addressed in their post-trial briefs, as well as the motion papers submitted by the parties to the committee, which are on the desks of all members. in accordance with the unanimous consent agreement, each side will be permitted no more than one hour to present its argument on the motions. upon the conclusion of argument on the motions, the senate will then turn to hearing final argument by the parties on the impeachment articles. under impeachment rule xxii, final argument will be opened and closed by the house. by unanimous consent, each party shall have up to one and one-half hours to present final argument on the merits. as the senate has done in the past, we have provided that counsel may face the full senate during their presentations. they should remain mindful, nevertheless, that the proceedings are under the direction of the presiding officer. on their part, senators should recall that any questions they have of counsel should, pursuant to impeachment rule xix, "be reduced to writing, and put by the presiding officer."

there is assistance available in the respective cloakrooms to aid members in putting any questions in writing. questions may be sent to the chair during the argument, for reading by the chair at the appropriate times. the managers on behalf of the house of representatives -- representative schiff, representative goodlatte, and representative johnson. representative sensenbrenner and special impeachment counsel to the house, alan baron, are present at the managers' table. jonathan turley, daniel c. schwartz, p.j. meitl daniel t. o'connor, and ian barlow are counsel to judge porteous and are present with him. mr. president, the motions will be argued first by jonathan turley, counsel to the judge, who is the moving party. by the unanimous consent order, that is now before this body, argument on the motions on behalf of the house will be divided between representative schiff and representative goodlatte. mr. turley may, under the u.c. agreement, reserve a portion of judge porteous's time for rebuttal. for the argument on the articles, the managers will likewise divide

their time between the two managers, and mr. turley will present argument on behalf of judge porteous. under impeachment rule xxii, the house will open and close final argument on the impeachment articles. the president pro tempore: we are now ready to hear argument on the motions. mr. turley will open the argument in support of the motions to dismiss. mr. turley, how much time do you wish to reserve for rebuttal? mr. turley: yes, mr. president. we would like to reserve 20 minutes for rebuttal. the president pro tempore: 10 minutes. so noted. mr. turley: thank you, mr. president. my name is jonathan turley and i am from the public of law at george washington university and i am counsel to the honorable j. thomas porteous jr. of the united states district court for the eastern district of louisiana. joining me in counsel's tables are my colleagues from the law firm of brian cave, daniel schwartz, p.j. meitl and daniel

o'connor. as the majority leader has told you and as many of you know, the porteous impeachment has raised a number of constitutional issues that are rather unique and considerable concern among law professors and legislators alike. the three motions before you today are designed to put these issues squarely before you. we understand that members can choose not to vote on these motions and you can, in fact, reject an article or an allegation in light of these constitutional concerns. however, these issues do not turn on the facts of this case. rather, they present threshold questions for each senator in deciding whether to establish new precedent in the scope, in the meaning of impeachable offenses. the first motion before you today is a motion to exclude as a basis for the removal of a federal judge any so-called pre-federal allegations.

that is conduct that allegedly occurred before judge porteous became a federal judge. this motion primarily deals with article ii, which is widely recognized as a pre-federal claim and the focus of much discussion nationally. second is a motion to exclude as a basis -- a motion to exclude as a basis for removal that judge porteous deprived litigants and the public of the right of his so-called honest services. the supreme court recently rejected that very theory as unconstitutionally vague. we believe the senate should do likewise. third and finally, there is a motion for preliminary votes on each of the multiple allegations contained in the house articles of impeachment. as we will discuss, those articles are grossly aggregated, meaning that each article contains numerous separate

allegations. this long simmering dispute between the house and the senate came to a boiling point in these articles with the unprecedented use of what we refer to as an aggregation tactic. equally important to the relief that judge porteous is requesting is what he is not requesting. we have tailored these motions so that we are not requesting the dismissal of any articles in their entirety. instead, judge porteous requests that the senate deliberation be confined only to those allegations that constitute valid basis for removal under the united states constitution. throughout history, senators have expressed their primary concern as the precedent set by impeachment cases and the implications of their decisions that are reached in this chamber for future cases. this care is shown in the fact that 19 impeachments have reached this body.

only seven ended in conviction. your predecessors accepted that the impeachment clauses contain an implied hippocratic oath under the constitution. your duty, first and foremost, is to do no harm. to do no harm to the courts and to do no harm to the constitution. indeed, in all of the impeachment cases resulting in acquittals, the senators found much to condemn in the conduct of the accused. they simply didn't find impeachable offenses. with that brief introduction, i'd like to turn to the first motion before the senate in which judge porteous asks for the exclusion of pre-federal allegations. the first motion deals with the most dangerous aspect of the articles of impeachment. the house, through article ii, and to some degree through article i, is seeking to have judge porteous removed on the basis of conduct that allegedly occurred before he became a

federal judge. the house's pre-federal charges in this case are in a district contradiction to decades of precedent from this body and would, in fact, violate the text of the united states constitution. in the history of this republic, no one has ever been removed from office on the basis of pre-federal conduct. no one. the pre-federal claims are an attempt by the house to secure impeachment at any cost, at the cost of the constitutional standard itself, to remove a previously disciplined judge just months before his retirement. the logic of this article is much like the story my father used to tell me about a man who comes across a stranger on his hands and knees one night looking for his wedding ring under a lamppost. he joins the man, searches for an hour and then turns to him and says, "you know, mister, i don't see it anywhere. are you sure you dropped it here?" and the stranger responds, "oh,

no, no, no. i lost it down the street but the light is better here." unable to find a crime during federal service, the house managers just decided to look elsewhere, down the road, before he became a federal judge. it does not appear to matter that experts and the congressional research service warn that no individual, not a president, not a vice president, not a federal judge, not a cabinet member, has ever been removed on this basis. in order to open up the federal bench to removals for prefederal conduct, you must first ignore the express language of the constitution itself which refers to conduct during federal service, during service in an office. a judge is guaranteed life tenure under the constitution during good behavior in office. it's not a standard of good behavior in life. it's a standard of good behavior in office. it requires misconduct during

federal service that justifies the removal from that federal office. the standard fashioned by james madison and others has stood for centuries, largely because of the work of your predecessors who have rejected articles of prefederal conduct. that includes in 1912 the impeachment of judge robert archibald. the senate in that case explicitly rejected the theory of removing an individual for conduct occurring before he took federal office for which the house was seeking removal. in the archibald case, there were 13 articles of impeachment. the first six dealt with conduct in the office for which he was being sought to be removed. the next six dealt with conduct before he entered that office, and the last was something that is called a catch-all provision. that is, they combined all the

12 earlier provisions into one. archibald was convicted on all six -- i'm sorry -- was acquitted on all six articles that focused on conduct prior to his assuming a seat on the circuit court, all six were defeated in this chamber. and these were not close votes. with the house receiving no more than 29 votes for conviction on those prefederal articles, this was an average that was rather high of 64% rate for acquittal. many senators rose to amplify the reasons why they were rejecting those articles. senator bryan of florida stated -- "i am convinced that the articles of impeachment lie only for conduct during the term of office being filled." senator branagy of connecticut

stated -- "i vote not guilty because it alleges offenses, some of which are alleged to have been committed by the respondent while he was in office he does not hold at present and did not hold at the time the articles were adopted." senator dupont of delaware -- "my vote of not guilty upon the article of impeachment was based upon the fact that the offenses were alleged to have been committed when he was not holding his present office. senator werks of california -- "i am of the opinion that the respondent cannot be impeached for offenses committed before his appointment to the present office." senator catron of new mexico -- "i do not believe that the house of representatives had the right to go back of the present office held by judge archibald and hunt up any of his acts to charge against him so as to remove him from the office he now holds." senator crawford of south dakota stated -- "i find the respondent guilty of misconduct but it

occurred before he became the incumbent in his present office. i believe impeachment can be sustained for that reason stated." finally, senator mccumber of north dakota stated -- "impeachment proceedings cannot lie against a person for an act committed while holding an official position for which he is separated." i could read more, but the point is clear. the senate specifically dealt with the issue before of prefederal conduct and rejected it by a large margin. the large percentage of senators at the time felt strongly about the issue to publicly speak about the impropriety of seeking prefederal causes for removal. 32 senators sat out the vote on that catch-all article 13, and many publicly stated that the reason that they were sitting

out that vote was because it contained in that whole list some of the prefederal conduct. however, the judge had already been convicted of six articles that contained federal conduct. and so by vote of just two with these senators sitting out the vote, that article was approved. article 2 would eradicate two centuries of precedent, and for what purpose? the house alleges federal rather than prefederal conduct in article 3 and article 4. even article 1 has some federal claims. we're eager to reach those issues, and they offer an ample basis for review, and, yes, possible removal. without opening up the federal bench and all other federal officers to prefederal attack. one statement in the archibald case stands out particularly as prophetic and relevant. when confronted with the

prefederal conduct, senator stone of missouri rose to give the following warning to his colleagues, and by extension to you, his successors. he said -- "it would not be difficult to conceive a case where under great pressure where the country was in a state of high political excitement, and where some supposed political exigency was influencing a public opinion, a hostile majority might hearken back to some alleged misbehavior of a judge." now, one can certainly imagine a period of high political excitement if you try hard enough. the point is that despite the rhetoric and passions of periods of great upheaval, senators, united states senators have stepped forward to protect our core constitutional values and standards. this is why framers gave senators long terms and large constituents, to allow them to

resist the passions and distemper of contemporary politics. once the senate allows the house to cross this constitutional rubicon for the first time, congress would be able to dredge up any pre-federal conduct to strip the bench of unpopular judges or to remove other federal officials at the whim of the house. it would raise the very real possibility that an unpopular opinion issued by a federal judge or a supreme court justice could trigger impeachment based on alleged acts from decades of practice before taking office. other officials, the vice president, cabinet member, could be similarly confronted with pre-federal conduct as a basis for removal. now, i expect my esteemed colleagues from the house to raise again a rather old saw, that if you accept the defense argument, the senate would be precluded from removing someone

who committed murder before taking office. of course, the extreme hypothetical that -- like this points out the absurdity of the case against judge porteous. in this case, the justice department did not find evidence to bring a single charge of criminal wrongdoing. once again, the house simply wants to go where the light is better, and in this case, they want to go to a hypothetical place. but to be blunt, in deference to my colleagues, i must confess that this is an unsensical argument from a constitutional standpoint. the reason is that in the case of pre-federal murder, a judge would be subject to trial during his or her federal term. if convicted, the judge would likely be sentenced to life imprisonment. while the crime may have predated his confirmation, he was -- he became a convicted felon during his federal service. that's the basis for the

removal. further, a judge couldn't possibly serve time and good behavior given his conviction and presumed incarceration. the house, i believe, will also argue reasons for the lack of any precedent of removals for pre-federal conduct. the record is rather telling. there hasn't been such a case. why? the house will argue that the reason is that people who are charged with pre-federal misconduct simply resign if it's serious. history repudiates that argument. it's simply not true. a number of individuals have had misconduct in their pre-federal lives revealed after they took office and yet never faced impeachment. for example, supreme court justice hugo black admitted after his confirmation that he was, in fact, at one time a member of the ku klux klan. there was outrage with that

disclosure, that controversy had been raised before confirmation. as our filings document, numerous other justices, as well as a bevy of other federal officers have had damaging information of this kind revealed. hugo black did not face impeachment nor did they. this body has removed only seven , seven judges in 206 years through the impeachment process and has never removed anyone for pre-federal conduct. if you believe that judge porteous committed removable offenses as a federal judge, so be it. he's here to be judged himself. but do so on that basis on the remaining articles, not on article 2. it's a great burden and responsibility to stand before you not just as counsel for judge porteous but as a constitutional law scholar.

the importance of article 2 transcends this case and, frankly, transcends this judge. it's an attack on a constitutional standard that has guaranteed an independent judiciary for two centuries. whatever you do today, please do no harm. judge porteous stands ready to be judged himself for his conduct on the federal bench. however, like many scholars and commentators, i ask you to hold the constitutional line as did your predecessors and reject pre-federal claims as the basis for his removal. i would like now to turn to perhaps the most novel problem raised in this impeachment, the reliance in article 1 on the theory that was rejected by the supreme court after the impeachment vote in the house. at issue is the honest services claim that is at the heart of article 1. even before this impeachment, honest services claims were

proferl in federal courts. various judges had, in fact, rejected this claim. while experts were predicting a rejection in whole part -- whole or in part of this theory, the supreme court accepted three cases dealing with honest services. the house was fully aware that those cases had been accepted by the supreme court. the house was fully aware that lower court judges had rejected this theory. they simply took a gamble. they decided to take a risk and structure article 1 as an honor services claim, and they lost that gamble. when the court ruled in curt schilling v. united states in two related cases, rejecting the use of this theory in cases without express allegations of bribery and kickbacks, neither bribery nor kickbacks are alleged in article 1. in fact, they are not mentioned

in any of the articles. indeed, the house's own witnesses testified that there was no such bribery or kickback scheme to influence judge porteous on the federal or, for that matter, on the state bench. house managers are now going to ask the senate to cover their bad bet on skilling and ignore that the stated theory of article 1 was rejected by the supreme court as a viable criminal claim. the dangerous implications of such a vote are difficult to overstate. the senate has never removed a federal judge on the basis of a legal theory specifically rejected by the supreme court. if allowed, congress could remove presidents, judges, cabinet members on theories that are barred as invalid in federal court. ironically, if judge porteous were presiding in a case, he would be bound by the rule of law to reject an indictment of a public official on this

identical claim that is now being offered as the basis for his removal. house managers crafted article i around the same theory of honest services that is being advanced by the federal -- that was advanced by the federal government in the skilling case. articlarticlearticle i answers e porteous is guilty of high crimes and misdemeanors and should be removed from office because in connection with a recusal motion -- a recusal motion in a single case before him -- he -- quote -- "deprived the parties and the public of the right to honest services of his office." the house asserts that judge porteous caused this deprivation of honest services in three wa ways. first, that he failed to disclose certain information during the recusal hearing held in the so-called lifemark case about his relationship with one of the attorneys in the case, jake amato, and amato's partner, bob ceely.

ceely. second, that he made misleading statements at the recusal hearing about his relationship with these two attorneys. and, third, that he ultimately denied the motion to recuse. now, the reason the house did not allege either bribery or kickbacks became obvious when the defense was allowed to cross-examine the house witnesses before the senate committee concerning article i. all of whom denied any bribe or kickback scheme by judge porteous. faced with various house witnesses who insisted universally that judge porteous was not and could not be bribed, the house turned to a claim of a -- quote -- "scheme or artifice to deprive another of the intangible right of honest services." in basing its allegations on this provision of the criminal code, which is title 18, section 1346, the house followed a long-standing precedent of crafting articles to reflect

actual crimes. that, however, just happened to be the provision that was rejected in skilling. the house finalized and approved article i on march, 2010. that means that for months, the house knew an honest services claim could be rejected by the court and decided to rely on it because it could not expressly claim a federal bribe or kickback. the reason for the house's honest services gamble was obvious. beginning in the early 1990's -- actually, it was more the late 1990's, the justice department began what was called the wrinkled robe investigation. and in the course of that investigation, they conducted a long-running grand jury investigation with testimony, plea bargains, countless subpoenas and searches of judges in lo in louisiana. in the end, some judges were indicted. however, the government, which looked specifically at judge porteous, as well as some of the other judges, found the evidence

did not support bringing an indictment against judge porteous for any crime. permit me to repeat. judge porteous had agreed to waive the statute of limitations to allow the government to bring a criminal charge against him. he decided that it would not be appropriate for a federal judge to rely on the statute of limitations to protect himself from a criminal charge. he signed three waivers to permit those charges even though they could have been blocked under the statute of limitations. the department of justice then investigated and found insufficient evidence to bring a charge of any kind, big or small, against judge porteous. in declining to prosecute, the d.o.j. specifically cited a host of rather fundamental problems in bringing such a case. it said that it did not believe it could carry the burden of proof.

it did not believe it could secure a verdict of conviction from a jury. and that there was a general lack of evidence to show mens rea, an intent to deceive. that only left the soon to be rejected theory of honest services without a specific charge of bribery or kickback. the house's gamble failed in june when the supreme court issued its trio of decisions, led by the skilling v. united states decision, where the court directly and, by the way, unanimously rejected the theory underlying article i. the court expressly held that absent specific allegations of a bribe or kickback -- quote -- "no other misconduct falls within the statute's province." in direct relevance to this case, the court expressly rejected the notion that -- quote -- "nondisclosure of a conflicting financial interest can constitute criminal

deprivation of honest services." "nondisclosure of a conflicting financial interest." that should sound familiar because that's article i. as noted earlier, article i does not include any allegation of a brief obribe or kickback, instet refers to a -- quote -- "corrupt scheme" that existed when judge porteous was a state not a federal judge. it alleges a corrupt scheme that he had with attorneys amato and creely. as we will address in greater detail in our closing argument, there were -- there was, in fact, no corrupt scheme. our proof is the testimony of the house's witnesses, not our witnesses, the attorneys themselves, who denied a scheme of bribery or kickback. the greatest irony of the house's use of the honest services claim is that the -- is that the very concerns stated by

the supreme court was that it was so ambiguous that it would not give citizens notice of what it is they could be charged criminally with. and yet that is the same concern that james madison raised when crafting the impeachment standard. madison said that congress should not be able to use a standard that was so vague as to make removal easy or to rob people of knowledge of what they could be removed for. and so after the supreme court in skilling rejects this very theory as so ambiguous, so vague it cannot be used in a federal court, the house picked up that very theory and said, but we think you should use it as the basis to remove federal officers, from presidents to judges to cabinet members. simply put, deprivation of honeshonest services is the modn equivalent of maladministration. many of you know that james madison and the framers rejected

maladministration as a standard for impeachment. and, by the way, they also rejected corruption. the term corruption was viewed as far too vague to allow the members of the senate to remove a judge on that basis. and so what the house is doing is taking a standard of honest services which was rejected for the same reason and effectively make it the standard of the united states for the basis of removal of a federal judge. since the article i does not allege a bribe or kickback, it is constitutionally invalid under skilling and this body should not import that standard into the united states constitution. while an article of impeachment does not have to be coextensive with a crime to be valid, an article must give fair notice of what conduct can result in removal.

an impeachment speaks not just to one judge. it speaks to all judges. they need to know, because they need to know that they can perform their duties without having a damocles sword hanging over their head, not knowing if an unpopular decision will trigger removal. they deserve fair notice. it's worth noting that -- that after the court's decision, senator leahy introduced a bill that was cosponsored by senator whitehouse and former senator kaufman, to amend the federal services statute in response to skilling. that bill, known as the honest services restoration act, would revise the honest services statute to prescribe what is defined as "undisclosed self dealing by a public official." notably, even under the new statutory definition of "honest services," the allegations in article i would not meet that standard any more than it met --

would meet the standard under skilling. senator leahy's bill defines -- quote -- "undisclosed self dealing as a public official performing an official act -- quote -- "for the purpose of benefiting either himself or others and their financial interests." article i doesn't allege that judge porteous denied the recusal motion for the purpose of benefiting himself. and, indeed, the house doesn't allege that he was at that time receiving gifts from mr. creel or mr. amato. those gifts, which we'll be talking about later, occurred years before. but, of course, this -- that's not the prior and is not the current standard. the senate must decide if a federal judge can be removed on an alleged claim of a corrupt scheme despite the supreme court ruling. to allow such a removal would be to sever any connection between the viability of a criminal

claim and the basis for the removal of a federal judge. indeed, it would establish that federal judge can be removed from conduct that is demonstrably not criminal and a theory so vague that it can't actually be used in a federal court. the house made a bad gamble in skilling. the senate should not now make a bad gamble into bad law. i'd like now to turn to the final motion before the senate which is a defense request that the senate take preliminary votes on the numerous and separate allegations in the four articles of impeachment. the house managers, in crafting these articles, used a tactic called aggregation. it's not new. it has often been the subject of criticism by both senators and scholars. aggregation say method by which house members, when drafting articles of impeachment, can

circumvent the high vote required under the constitution. they can essentially remove a federal judge even though less than two-thirds of you agree on any specific allegation. this is accomplished by combining different claims in one article so that no single act is subject to a stand-alone vote. by lumping together or aggregating issues, you can secure total votes even if only five or ten senators might agree that any given act is sufficient to remove a federal judge. that negates article i and section iii, which says that no person shall be convicted without concurrence of two-thirds of the members present. the aggregation tactic converts this exacting process into an undefined and fluid process where neither history nor the public will know what was the grounds by which you removed a

federal judge. let me try to explain this with an example. let's say that you go back into your deliberations and 20 of you might agree that one allegation in a particular article was worthy of removal while another 30 might reject that allegation but agree on a different allegation as sufficient for removal. two other groups of senators of 10 might focus on a third and fourth allegation. when it came to the fourth -- to the final vote, you would have 70 senators voting for removal even though no more than 30 actually agreed on what should be the basis for removal, what actually satisfied the constitutional standard. one does not have to be a strict constructionallist to see the violence that that approach does to the express language of the constitution. honestly, do members of this

body believe that the framers would establish a two-thirds majority vote to remove a federal judge but allow the house to simply aggregate and achieve that with just 20 or 30? the framers of the united states might have been many things but they were not stupid and they were not frivolous. they created a two-thirds vote for a purpose. they wanted two-thirds of you to agree together that at least one act committed by a federal judge is sufficient to satisfy this extraordinary measure of remov removal. such aggregation of claims wouldn't even be allowed in a criminal or a civil trial. a judge wouldn't permit it. this judge wouldn't permit it. senators have repeatedly objected to the aggregation of claims in past cases. however, the house knows that senators are reluctant to dismiss an article that has been duly submitted by the house.

it's a game of constitutional chicken. they aggregate knowing that it would be difficult institutionally to simply dismiss an article. and for that reason, we are not asking you to do that. all we are asking for you to do is to take preliminary votes on the separate allegations that have been combined in these articles. to ensure for yourselves and for history that the constitutional standard has been met. the house itself has conceded that the senate can, in fact, do this and concede it had may be necessary to do this when we last had this discussion before the committee and chairman mccaskill. congressman schiff stated at that and i quote -- "the senate can when it deliberates say we want to have a separate vote internally on each of the facts that alleged in article i. on each of the facts alleged in

article ii. you can make that decision and if -- and if the vote internally is that you don't agree, you have the -- you have a further discussion and say, well, unless we agree on these pieces, we don't think the conduct rises. you can make that decision. ." you will find that on page 18 18-61. congressman schiff noted you will have further opportunity when the evidence is provided to you to vote on it in any way, shape, or form we decide, nothing we will do about prejudice that. when senato senator klobuchar ad congressman schiff whether we could vote on each one or vote them as a group, would we be allowed to do that? congressman schiff said, that's exactly right, senator. and i commended congressman schiff because i believe that is an honorable and correct

position. we would encourage, however, that those votes be made public. i say this not as much for the interest of my client as in the interest of history. what you say this week will speak to the remaining judges on the bench and you should speak clearly as to what you think is sufficient to remove a federal judge. i also want to mention that the need for a clear record is particularly important in this case because that wa because tho criminal trial in this case. this is the first modern impeachment to come to you as a body without a prior trial and more importantly a prior trial record. so the evidence, the witnesses in this case were not subject to the procedures and review of a criminal case. it was raw evidence that came in. for that reason you will be the

first to evaluate this evidence in terms of an impeachment. it did not occur in a criminal case. and we believe in light of that you should take particularly strong steps to isolate what it is that would be the basis for removal or acquittal. now, i have to point out that the problems of the house were unnecessarily created by itself, not by this body, and not by the defense. the house decided to abandon good practices in the drafting of articles, good practice that were applied in prior cases. for example in the hastings impeachment case, where some of you were, in fact, involved, if you recall there were 17 articles of impeachment. each of those articles isolated one false staimentd that has -- statement that hastings made. articles two through 14 were all

short and largely identical. the first and third paragraphs of those articles were, in fact, identical. the only difference was the specific falls statement. the house did that so you would have the opportunity to state, to vote whether you believe this was a false statement and whether that specific statement justified removal. that has been the approach of the house in prior cases. now, it is correct, and i believe the house is likely to -- to mention that there are some prior cases that have multiple claims, but those are different from an aggregation case. as i mentioned before, on some occasions the house has -- has submitted to you what's called a catch-all provision. and so what they would do is they would have, for example, six articles of impeachment with specific acts they believe should be subject for removal

and the seventh article was a catch all that would combine all of the previous acts. the difference between this and a catch ya'll is that you and -- catch-all had an opportunity -- you knew as a body if in fact, two-thirds of you agree any of the prior six did occur and did constitute removal conduct. that is not the case with aggregation. what we are suggesting today is a simple process that we believe would protect the constitutional standard and this body, not just in this case, but in the future. we have suggested you simply vote preliminary, as was discussed with congressman schiff, on each of the allegations. and if you look at our motion, we have laid them out. there's not a great number in

each of the articles, but you could vote simply on those specific allegations and determine if two-thirds of you agree that, first, they occurred, and that you believe that they would be the basis for removal. you would then vote on the article as a whole in compliance with rule 23. rule 23 requires you to take a final vote on an article that has not been divided. but by the time you took that vote, you would know -- you would know whether the standard of the constitution had been satisfied. as we note in our filing, and i -- and i won't take up your time by quoting them again, many senators have objected to the aggregation of claims in history. in the archibald, george sutherland of utah objected to his colleagues and stated in

exasperation, i cannot consistently vote upon this article one way or the other because of aggregation. mr. inouye: the chair would like to advise you that you've consumed 40 minutes. mr. turley: thank you very much. as a law professor i'm trained to speak in 50-minute increments. i will try to wrap-up. in conclusion, i ask that the senate adopt this simple approach to deal with aggregated claims. we've suggested this way to deaggregate the claims, we believe it is useful not just -- in this case but in the future cases. thank you very much. mr. inouye: the chair has not received any written questions. accordingly the senate will now hear from representative schiff in opposition to the motions. representative schiff?

mr. schiff: mr. president, members of the senate and representative schiff, i'm joined by bob goodlatte, sensenbrenner and hank johnson as well as our counsel alan bar and and kristen konar. when the impeachment trial began in this case, some weeks ago, we acknowledged the historic significance of an impeachment proceeding and how rarely they're undertaken. this is for good reason. the overwhelming majority of men and women appointed to the bench have great integrity and uphold the trust that the public places in them. very seldom does someone corrupt get nominated to the bench. when a problem is discovered during the confirmation process, most withdraw from further consideration or their confirmation is denied. it is a very rare -- it is very rare that a corrupt official is nominated and his corruption

escapes discovery until after he is appointed, but it does happen. it happened here with the appointment of g. thomas porteous who is not only a corrupt state judge, but would become a corrupt federal judge as well. by means of the impeachment and removal process the framers of the constitution sought protect the institutions of government by you a lowg congress to remove those unfit for positions of trust as alexander hamilton noted when referring to impeach there are those offenses which proceed from the misconduct of public men or in other words from abuse or violation of some public trust. the charges against judge porteous here in the view of the house of representatives are precisely that, abusive and vieo violate the public trust. the first proceedings against

judge porteous began before a disciplinary panel of the fifth circuit court of appeals. after taking evidence and conducting two days worth of hearings where judge porteous testified and you grant of immunity, the fifth circuit concluded that it might constitute more one or more grounds for impeachment an referred it to the -- the chief justice in conference also concluded that impeachment may be warranted and referred the case against judge porteous to the house of representatives. the case was also recommended for potential impeachment by the department of justice which in part because the statute of limitations had run on many of judge porteous's offenses felt that impeachment might be the more appropriate remedy. although judge porteous signed a tolling agreement, it did not reset the clock on the vast majority of potential charges from the kickbacks from the lawyers or the bail bondsman

corrupt activity already time barred from prosecution. in the house judiciary committee we undertook a thorough investigation, interviewing a great many witnesses, taking depositions, acquiring documents never found by the justice department, revealing the recusal hearing in the hospital case mentioned by my opposing counsel where judge porteous so grievously misled and deceived the parties. at the conclusion the committee considered carefully whether judge porteous's conduct was so morally repugnant and whether he so demeaned himself in office that he was guilty of high crimes and misdemeanors. unanimously he was guilty of high crimes and misdemeanors. three motions to dismiss, we considered carefully how many articles should be crafted,

whether his conduct gnawly divided itself into coherent schemes and if so how many to give the public clear knowledge of what he was charged with and to give judge porteous a fair opportunity to defend himself and to give the senate clear articles to vote upon. we concluded that the judge's conduct could be divided logically into four parts, one article based on the corrupt scheme with the lawyers, one article based on the corrupt scheme with the bondsman, one based on the false bankruptcy petition and one based on the petition of this very body of the senate. we did not wish to pile on -- by dividing articles into unnatural pieces. something a prosecutor might refer to as loading up an indictment. there were other charges we considered as well. the evidence of which was introduced at trial such as many serious false statements on mandatory judicial disclosure forms. but opted to introduce that as

evidence to perjure himself when it suited his interest. something relevant to his statements to the senate and in the bankruptcy proceeding. the house has great discretion in how it drafts an article of impeachment which is why the senate impeachment committee in this case ruled against precisely this same motion counsel makes only two months ago find that the schemes charged were very straightforward. we also considered whether a charge of violation of specific criminal statute that the judge violated 18-us-c-section x, y, or z, but rejected that approach. some charge no crimes at all and impeachment precedent is very clear, no particular statute need be referenced only the conduct that constitutes the high crime or misdemeanor, which is why, as i will explain later, judge porteous's motion to dismiss article i, claiming that

charges of violations of 18-usc-section 1846 is fatally flawed. the article charges no such violation of that statute and makes no reference to that code section whatsoever. the house judiciary committee considered how to view the elicit conduct of judge porteous not only while he was on the federal bench, but prior to his appointment, and, indeed, during the very confirmation process itself. we concluded that we could not ignore the judge's corrupt prior conduct or his conduct during the confirmation because it was so interwoven with his corruption on the federal bench. his deplorable handling of the hospital case while a federal judge, his lies during the recusal hearing, his hitting up the lawyers for cash, the very reason the lawyer was brought into that hospital case to begin with, so all of that conduct occurred while judge porteous was on the federal bench, none

of it can be fully understood without considering the judge's prior conduct with the relationship with those same attorneys. it was also the unanimous view of the judiciary committee that whether a high crime or misdemeanor occurs before or after someone is appointed to the bench, if it is such a violation of the public trust that the institution of the judiciary will be harmed, that the public will lose confidence in the decisions of the court and of that judge that he must be impeached. to reach the opposite conclusion could be to countenance a continuing injury to the judiciary which would be forced to retain judges proved to be corrupt. even where a judge is indicted and convicted on conduct that occurred before his appointment, the senate would be powerless to remove him from office or from lifetime salary although he sits in prison. nothing in the language of the constitution or 200 years of precedent support such an absurd

result. this was the unanimous view not only of the house judiciary committee, but when the matter was brought before the full house, it was the unanimous view of that body as well. the senate can decide to convict judge porteous on articles 1, 2 and 3 on the basis of corrupt conduct on the federal bench alone if it chooses, and count 4 addresses the concealment and false statements to the senate during the confirmation itself. or the senate may, as i will discuss later, convict judge porteous on the basis of his prior conduct as well, consistent with the constitution, with precedent, with a considered opinion of experts, and with the sound public policy reasons as well. but first let me turn to each of the judge's three motions. in considering judge porteous' motion toss dismiss, let me begin with the discussion that the argument that the charges against him are improperly aggregated.

in order to do so, it may be useful to provide a brief summary of the evidence charged in each article so that the full senate can see, just as the senate impeachment trial committee concluded that the house was well within its discretion in how it drafted the articles, each contains a coherent scheme of conduct giving the judge, the senate and the public a clear understanding of the charges against him and the motion must be denied. it is also worth pointing out that as the senate impeachment trial committee report demonstrates so clearly, none of the really salient facts in this case are in dispute. article 1. article 1 alleges, and the evidence at the trial has now established, that judge porteous while a state judge initiated and implemented a corrupt kickback scheme with attorney robert creely and his partner jacob amato. the essence of the scheme was that judge porteous, in his judicial capacity, assigned curatorship cases to creely, and

thereafter the firm of amato and creely gave judge porteous approximately half of the legal fees generated by those cases. a curatorship is a small case where the appointed lawyer represents a missing party and is asked to do some minor administrative work. the payments to the judge were always made in cash. as amato testified at trial, to avoid a paper trail. contrary to what counsel has just represented, amato testified that it was a classic kickback scheme. prior to judge porteous' initiation of this curator kickback scheme, he had asked creely for small sums of money from time to time. creely gave him the money until judge porteous asked for larger amounts, $500 or $1,000 at a time. at this point, creely bawkd. it was then that judge porteous began assigning creely the curatorships and seeking the cash back from creely and his partner amato. the evidence is undisputed that judge porteous asigned creely

over 190 of these cases from 1988-1994, resulting in fees to the firm of about $40,000. both creely and amato independently estimated they gave judge porteous a total of about $20,000 in cash. they both testified that they understood the cash they gave judge porteous was funded by these curatorships. by initiating and implementing this curatorship kickback scheme, judge porteous abused his position of trust as a judge by corruptly taking actions in his official capacity designed and intended to enrich himself. this is judicial misconduct and abuse of power at its most venal, but this was only the beginning of judge porteous' egregious misconduct. it gets worse. thereafter when judge porteous became a federal judge, he presided over a complex high- stakes, nonjury case. you will hear it referred to as

the liljeberg case, the hospital case. amato enters his appearance in this case as an attorney for the liljebergs. even though this case has been around for years, tens of millions are at stake. he enters the case six weeks before trial. when opposing counsel filed a motion to recuse judge porteous because he was concerned with the -- about the late introduction of his attorney. seeking that judge porteous asigned the case to another judge based on what counsel understood to be the judge's close relationship to amato, judge porteous deliberately misled counsel and the parties concealing his previous corrupt financial relationship that had existed between he, amato and creely. in fact, judge porteous did something much worse. the transcript of that hearing was truly revealing and sets forth a series of misleading statements, half-truths and outright lies by judge porteous. with one example, judge porteous steered the colloquy into a discussion of whether amato had

ever given judge porteous campaign contributions. in that discussion, judge porteous stated, and i quote -- "the first time i ran, 1984, i think is the only time when they gave me money." that statement was clearly false and deceptive and concealed many thousands, indeed tens of thousands of dollars in cash that amato and his partner had given judge porteous. judge porteous denies the recusal motion, and the order was appealed. the appeal based on the false record that judge porteous confirms or denial. so counsel for the other party, lifemark, was unknowingly forced to represent his client against an opposing counsel that had given judge porteous thousands of dollars as part of a corrupt scheme. in one of the most appallingly corrupt acts, among many by judge porteous, after the case is tried but hadn't been decided -- and again, nonjury case. the judge, the trier of fact as law, the judge solicits and receives a secret cash payment

of $2,000 from amato. amato testified during the senate trial it was the worst decision of his life and would acknowledge that he worked on this case for two years, stood to make $500,000 to $1 million if fees if he prevailed, and if he lost, he would make nothing, and that this was one of the reasons he gave the judge the cash, because the judge was presiding over this very important case. judge porteous decides the liljeberg case very favorably to amato's client. this decision is later reversed in scathing terms by the u.s. court of appeals for the fifth circuit in an opinion the appellate court, which characterized -- by the appellate court which characterized judge porteous' central rulings as inexplicable, apparently constructed of whole cloth and close to being nonsensical. not until the case was long over and the parties had moved on would they learn that the lawyer for the prevailing side at trial

had given the judge thousands in secret cash. that's article 1. article 2 alleges in the evidence as shown that judge porteous, while a state judge and extending into his tenure as a federal judge, had a corrupt relationship with local bail bondsman louis marcotte and hisster lori. the essence of the relationship is that judge porteous would take essential acts to benefit the marcottes by setting bail amounts that they requested to maximize their profit. not in the best interests of the public, not what was necessary to secure the defendants' appearance in court, but would maximize their profit. and in addition, he would set aside the criminal convictions of the marcottes' employees. the way the bond arrangement worked was this. louis marcotte would interview the defendant and their family to figure out the most expensive bond they could possibly afford and would ask judge porteous to set the bond at precisely this amount, and the judge would do

so. if the bond was set too low, below what the family could afford, marcotte would lose money. if the bond was set too high, then the defendant couldn't use marcotte at all and marcotte would lose money. it had to be set just right to maximize their profit, and judge porteous was their go-to bondsetter. although other judges would later go to jail for precisely this same relationship with the marcottes, louis marcotte testified at the senate trial no one, no one did more for them than judge porteous. and marcotte said further the more they did for porteous, the more he did for them. the marcottes supported judge porteous' lifestyle in numerous ways. in response to judge porteous' requests, they reportedly took judge porteous out to expensive restaurants, paying for his food and copious amounts of liquor. they sent their employees to pick up his cars at the courthouse, repair them, fill them up with gas, detail them, leave buckets of shrimp or bottles of liquor in them when

they were done. they sent their employees to his house to do home repairs where they spent three days repairing 85 feet of damaged fence, digging the holes, laying the concrete, picking up the fence boards, doing the construction. and they paid for one or more trips to las vegas for the judge and his secretary. as we proved during the trial, judge porteous was also asked by louis marcotte to expunge or set aside the felony convictions of two marcotte employees so they could be licensed as bail bondsmen. judge porteous obliged but significantly told marcotte that he would not set aside one of the convictions until after senate confirmation of his position as a u.s. district judge because judge porteous did not want to jeopardize what was in the judge's words his lifetime appointment. in essence, judge porteous told marcotte that he would set aside the conviction but that he needed to hide the corrupt relationship from the senate. and, in fact, this is exactly

what he did. shortly after senate confirmation but before he was sworn in as a federal judge, judge porteous did, in fact, set aside the conviction of marcotte 's employee. and it had to be done precisely then, after confirmation so you wouldn't learn about it but before he was sworn in because once he was sworn in, it was too late. he could no longer expunge the conviction. what the articles allege and the evidence establish is that this was a classic quid pro quo relationship between a judge with his hand out and a corrupt bondsman who was willing to pay for what the judge could do for him. judge porteous' corrupt relationship with the marcottes did not come to an end after judge porteous became a federal judge. although he no longer had the power to set bonds or expunge convictions for the marcottes. the marcottes continued wining and dining judge porteous because they needed his help to recruit a successor, other state judges to assume judge porteous' former role in setting bonds at the amounts necessary to maximize their profits, and once

again, judge porteous agreed. meeting with state judges and vouching for the marcottes and using the prestige and power of his office to foster these new corrupt relationships. one of the judges that porteous helped the marcottes recruit was a -- while he was a federal judge was a state judge named ronald bodenheimer. bodenheimer testified he did not hold louis marcotte in high regard and wouldn't deal with him because he had a low regard for marcotte's character and deceived he was a drug user. he testified that when judge porteous vouched for marcotte's integrity, it was critical to his decision to form a decision with louis marcotte. judge bodenheimer would later be convicted and incarcerated on federal corruption charges in part because of his corrupt relationship with the marcottes setting bonds in the amounts they requested in return for financial favors. both the marcottes also would plead guilty to corruption charges premised on these same relationships. now let me turn to article 3.

by 2001, judge porteous had close to $200,000 in credit card debts, a substantial portion of which resulted from his gambling problem. for years, judge porteous had dishonestly concealed his debts and the extent of his gambling by filing false annual disclosure forms. ultimately, in march of 2001, judge porteous filed for bankruptcy. his filings were replete with dishonest representations. first, to conceal his identity, judge porteous filed and signed the petition under penalty of perjury using a fake name, g.t. g.t.ortis. further, just a few days prior to filing as part of his plan to conceal his identity, he obtained a post office box which he listed as his residence on the bankruptcy petition. he concealed assets so he could gamble, such as a $4,100 tax refund, even though the bankruptcy form asked him specifically whether he was expecting a tax refund.

he concealed a money market account that he used the day before filing bankruptcy, and that he used while in bankruptcy to pay for his gambling. he lied under oath about preferential payments to creditors, particularly casinos. he falsely denied under oath having gambling losses in response to a question on the form that asked just that. he had his secretary pay off a credit card account shortly before filing and then failed to report the transaction. after the bankruptcy judge issued an order confirming judge porteous' chapter 13 plan which prohibited him from incurring new debt without permission, judge porteous violated the order by secretly incurring additional debt at several casinos and by attaining and using a new credit card, all without the permission of the bankruptcy trustee. in sum, his bankruptcy was replete with deliberately false statements made under penalty of perjury in an effort to avoid public disclosure of his bankruptcy and his gambling problem. now let me turn to article 4.

i previously mentioned that while he was a state judge, judge porteous had corrupt schemes going on with the attorneys amato and creely and with the marcottes. how then did he ever get confirmed in the first place? article 4 alleges and the evidence established that judge porteous repeatedly lied to the f.b.i. and to the u.s. senate in responding to questions posed to him as part of the confirmation process on no less than four occasions. particularly in response to the very questions that would have required his disclosure of his relationship with creely, amato and the marcottes. he was interviewed twice by f.b.i. agents and filled out two separate questionnaires, one of which was sent directly to the senate committee on the judiciary. there is, perhaps, no more important question for an applicant for a senate-confirmed position than that which seeks information concerning the candidate's integrity. judge porteous's responses to these questions were false,

given his corrupt relationship with attorneys amato and creely and his corrupt relationship with the marcottes and their bail bond business. there was a wealth of evidence that makes clear that judge porteous understood the questions as calling for his disclosure of the corrupt relationships with amato and creely and the marcottes. most critically, as i mentioned, in the summer of 1994, louis marcotte asked judge porteous to set aside the felony conviction of one of his employees named aubrey wallace. a marcotte employee who had taken care of judge porteous's cars and had performed house repairs for judge porteous. marcotte testified that judge porteous responded to marcotte's request by telling marcotte -- quote -- "louis, i am not going to let wallace get in the way of me becoming a federal judge and getting appointed for the rest of my life. wait until it happens. then i'll do it." in short, judge porteous would set aside the conviction as marcotte requested but he would hide that act from the senate so as not to very much dies his --o

jeopardize his appointment. he knew he had to seal his relationship with marcotte if he any hope of being confirmed as u.s. district court judge, and that's exactly what he did. almost all the salient facts in this case that i have just mentioned are not seriously contested. in connection with article i and his relationship with creely and amato, judge porteous admitted the critical facts during his sworn testimony before the fifth circuit, where he was given imhiewnt froimmunity from the ue testimony in a criminal proceeding. he admitted creely gave him money and then balked at continuing to do so. he was asked about the curator money and he admitted setting the curatorships to amato and giving them money after he assigned the curatorships. though le not call it a kickback, judge porteous does not deny getting back the money from the attorneys after setting up the curatorship's. when he was asked how much money he got back from creely and amato, his answer was "i have no earthly idea. i have no idea."

not, i didn't get the money. not, "i don't know what you're talking about." but in terms of how much, "i have no idea." the payments of cash to judge porteous occurred so often and for such a prolonged period of time he could not or would not estimate how many thousands of dollars he received from them. does he admit getting the $2,000 in cash in an envelope after soliciting it from amato during the pendancy of a case? yes. he admitted to that in the fifth circuit e. takes issue strangely enough with the envelope itself. he can't remember whether the money was delivered in a bank envelope or a regular envelope but he doesn't deny getting an envelope with cash during the pendency of this multimillion-dollar litigation. he doesn't remember whether he got it personally or whether he sent his secretary to pick it up but he doesn't deny getting the cash. the record is absolutely clear that judge porteous did not disclose his receipt to the curatorship money when he was asked to recuse himself from the

liljeberg case. he admits filing bankruptcy under a false name saying it was -- it was his lawyer's idea. he admits not disclosing his penting income tax on the forms required. he admits not discolleagues his gambling losses, as required. he admits not disclosing the bank account he used for gambling. and as to the judge's false statements to the f.b.i. and senate, the defense's own expert testified that if the judge received kickbacks while he was on the state bench or had a corrupt relationship with bail bondsmen, he would have understood this must be disclosed in answer to the questions he was asked by the f.b.i. and the senate. these were the facts the house considered in unanimously approving four articles of impeachment. the house determined that the corrupt conduct by judge porteous fell into four discreet schemes. one involving his corrupt relationship with amato and creely. another pertaining to the marcottes. a third reflecting his false filings and bankruptcy. and the final concerning his deception of the senate and the f.b.i. notwithstanding historic precedent of giving the house broad discretion in drafting

articles of impeachment and the plain logic of this division, judge porteous complains that the articles contain allegations that, in counsel words, are improperly aggregated. the senate has never ordered an article passed by the house to be divided up according to the accused's desires or required multiple votes on an article -- a proposal prohibited by the senate's own rules. unlike his motions to dismiss articles i and ii, this motion was heard and decided by the senate impeachment trial committee on the merits, which rejected it completely. judge porteous claims that the structure of the articles of impeachment aggregates a series of disparate allegations. he argues further the senate should dismiss all of the articles in his pleadings, or in so many words, vote on each separate factual predicate claim within each article. judge porteous mischaracterizes the articles in this case and misstatements the impeachment precedent on the issue. there's no basis for granting the relief he seeks and the motion should be denied. first, as a factual matter, the

articles simply do not contain a series of unrelated discreet acts, as judge porteous contends. each article describes a course of conduct towards a unitary end pursued through a combination of means. article i describes judge porteous' improper conduct while presiding over the liljeberg case arising from his concealed financial relationship with amato and creely. article ii describes his corrupt relationship with the marcottes and provides details of what he received from them and what he did for them. article iii describes numerous dishonest acts and false statements under oath by judge porteous to deprive his creditors and the bankruptcy court of the truth surrounding his financial circumstances. article iv describes judge porteous' false statements during the confirmation process when he concealed his relationships with amato and creely and marcotte, even though each of these separate schemes surprise discreet acts, each article describes a coherent scheme. second, as such, each of the articles easily withstand

scrutiny under long-settled senate precedent. the nixon impeachment committee ruled that articles of impeachment are properly framed if -- quote -- "they give fair notice of the contours of the charges against the judge and contained an intelligible essential allegation, thus providing a fair basis for the conduct of the evidentiary proceedings." there's no reason for the full senate to set aside the analysis and decision of the senate impeachment trial committee in this case. which found that the judge nixon standard, persuasive and consist went the constitution and ruled -- quote -- "each of the four articles against judge porteous meets the nixon standard." in reaching this conclusion, the committee summarized the articles and stated -- quote -- "each article provides judge porteous with fair notice of the contours of the charges against him and makes clear, intelligible allegations." each article contains a series of factual allegations comprising the charge course of

conduct that constitutes the article. although the requirements for how a count is charged in a criminal indictment don't apply in an impeachment, we think that senator whitehouse, a former u.s. attorney, got it right when he said during the proceedings, "let's say you were looking at a case involving a scheme or artifice to defraud and a whole bunch of conduct is alleged in that particular scheme and artifice to defraud. the judge doesn't have to agree on every single piece of evidence of what's having been done. they have to look at the evidence and include, yep, based on what we do see, we do see a scheme or artific tow defraud in this particular case." isn't that the case here as well? doesn't it fall within the general impeachment standard of high crime and misdemeanor? that analysis hits the nail right on the head. each of the four articles described integrated schemes, integrated courses of conduct. looking at article i, for example, defense counsel argues in his brief that the recusal hearing alone should be three

separate counts. one stating the recusal motion was improperly denied. another charging that during the recusal hearing, he should have disclosed the kickbacks from creely and amato. and a third, that he made false and misleading statements during the same recusal hearing. one hearing -- three articles. had we charged it in the way counsel suggests? is there any question in your mind that counsel wouldn't be before you here today arguing that the house improperly disaggregated one corrupt scheme to pile on three separate charges? in fact, none of these articles constitute what in the past has been occasionally referred to as an omnibus article, where articles involving discreet spheres of misconduct are joined in a single article. had we drafted a fifth article that set out the relationship with amato and creely and the marcottes and the bankruptcy and the deception of the senate and said that because of all these acts together, he should be removed, that would be considered an omnibus article.

the house chose not to do so. although we note that the house has frequently returned omnibus articles summarizing the prior counts and the senate has not only deemed them proper but repeatedly voted to convict on such omnibus articles. judge porteous has suggested that the consideration of the articles as drafted sun fair -- is unfair or would lead to confusion. according to judge porteous, senators would not really understand that they were voting -- what they were voting on when they voted to convict. this, however, is hardly a serious contention. in article i, there is no credible reason to believe that a senator would not convict unless he or she were satisfied with the core factual theories set forth in that count and the same is true of articles ii, iii and iv. council for judge porteous has argued that the cases of judge haigzings and archibald support his claim, pointing to the arguments of some individual senators. but as the impeachment committee

in this case so correctly pointed out -- quote -- "this, however, was not the adopted view in either instance, as both judges were convicted on the aggregated articles." so in both the cases cited by counsel, the senate voted to convict on the omnibus or aggregated articles. judge porteous' argument are no difference in substance to those raised in the hastings impeachment. in that case, there was a parliamentary inquiry as to whether in order to find judge hastings guilty, a senator had to find that he committed each of the four allegations in the given article. the president pro tempore of the senate responded, "this is for each senator to determine in his own mind and his own conscience and in accordance with his oath, that he do impartial justice under the constitution and law:it is the chair's opinion if a senator in his own conscience and based on the facts as he understands them determines that in any one of the paragraphs, judge hastings has undermined confidence and the integrity and the impartiality of the judiciary and betrayed the trust

of the people of the united states, he should vote accordingly." and so it is here. it is certainly not necessary for the senate to proceed sentence by sentence or paragraph by paragraph, so long as you're able to find, based on the facts as you understand th them, that judge porteous, by his conduct in the given artic article, has undermined the confidence and the integrity and impartiality of the judiciary and betrayed the trust of the people of the united states. the alternate request of counsel to require multiple votes on each article was also rejected by the senate impeachment trial committee and should be rejected here. as the committee ruled -- quote -- "impeachment rules do not permit judge porteous' suggestion that the senate vote separately on the individual impeachment allegations within each article. impeachment rule 23 states that an article of impeachment' shall not be divisible for the purpose of voting thereon at any time during the trial.'." let me now turn to judge porteous' motion to dismiss article i. judge porteous acknowledges in his written pleadings that for

the purpose of this motion, all of the facts alleged in article i should be accepted as true. judge porteous urges the dismiss article i on three grounds. first, that it charges a violation of title 18, u.s.c., section 1346, the mail and wire fraud statute, claiming that under the supreme court's decision in skilling, an honest services claim cannot be made under that code section. second, he argues that judge porteous could not have known that taking kickbacks, lying during a recusal hearing or soliciting thousands in cash from an attorney with a case before him could constitute grounds for impeachment. most remarkably, in his written pleadings, he claims he did nothing wrong and that taking secret cash from an attorney whose case is under submission in your courtroom is, at most, only an appearance problem. it is just such an argument that demonstrates judge porteous's unfitness for the bench. first, as to his honest services

argument. it is helpful to provide some background what an honest services charge is in a criminal case. 18 u.s.c., sections 1346 and 1347 are the wire and mail fraud statutes. under those laws, a defendant in a criminal case can be charged with defrauding someone of mon money, property, or honest services. judge porteous argues here that he has been charged with a violation of the mail and wire fraud statutes and that if this were a criminal case, he would seek to dismiss those charges on the basis that it did not adequately set out a crime under that statute. the problem with the judge's argument is that he is not charged with mail or wire fraud under sections 1346 or 1347. this is not a criminal case and even if it were, he would still lose under the very case he cites, for in skilling, the court found that you could be charged with honest services fraud in any case involving a kickback scheme. it is plain from a reading of article i that the house has not charged nor is it required to charge that porteous is guilty

of mail or wire fraud in violation of title 18. the article i described by judge porteous' counsel bears little evidence to the article that was actually charged in this case, which consists of six paragraphs that describe how judge porteous received kickbacks from attorneys amato and creely, how he dishonestly presided over the liljeberg case by concealing these kickbacks, and making intentionally misleading statements at the recusal hearing and by secretly soliciting and accepting cash from amato while the case was pending. article i, despite defense counsel's claim, is not patterned after the mail or wire fraud statutes or any other criminal statute and it does not otherwise allege a scheme, quote, "or artifice to defraud" or any other language that would be necessary to charge an honest services fraud offense. article i is written in nontechnical language and focuses on judge porteous's receipt of kickbacks and his acts of concealment of financial relationships, corrupt financial

relationships in the course of presiding over a case. article i concludes that judge porteous prejudiced public respect for and confidence in the federal judiciary and demonstrated he is unfit for the office of federal judge. whether the conduct alleged enterarticle 1 also violated criminal laws or could have resulted in indictable offenses simply has no bearing on the issue before the senate and no plausible reading of article 1 as actually drafted suggests that it intended to import supreme court interpretations of a federal statute. it is for the senate to determine whether the charged conduct demonstrates that the individual is not fit to be a judge. that determination does not turn on whether the conduct at issue constitutes a federal criminal offense. indeed, one of the first impeachments was of a judge for

drunkenness and for most of the nation's history, federal judges have been impeached for articles that have not alleged the conviction of a particular federal criminal offenses. as the senate impeachment committee in this case repeatedly pointed out this is not a criminal case. impeachments in this country are not punitive in nature. and don't threaten the judge with the loss of liberty or jail time. they are designed to protect the institution from the ill effects from having a corrupt officer destroy the public trust in that institution. finally, if this were a criminal case, and he were charged with mail or wire fraud and you were judges, rather than senators, and this judge stood to go to jail rather than lose his office, he would still lose this motion under the very precedent he cites, skilling. skilling, the former c.e.o. of enron, was charged with mail an wire fraud on the theory that he deprived shareholders of

truthful information about the value of that company. the supreme court held as to these counts that if congress wanted to a apply this broadly, it would need to do a better job saying so. because the charges against skilling didn't involve bribery or kickbacks. if the scheme did involve kickbacks as alleged in article i, the court said the charges would be fine, as the courted stated -- quote -- "a criminal defendant who participated in a bribery or kickback scheme in short cannot 10ably complain about prosecution under section 1346 on vagueness grounds." finally, judge porteous argues that article i should be dismissed because he charges as he notes in his written pleadings only the appearance of impropriety. not actual wrongdoing as if any judge should not be schectd to know that he can receive cash from an attorney with a pending case or kickbacks after sending the attorneys cases.

this is truly a remarkable assertion. judges are on notice from the day they're sworn in that they may be convicted and removed if thecommit high crimes an misdemeanors. this is the high standard that judges must adhere which judge porteous and every judge ought to understand that that requires a basic level of integrity. when judge porteous or any judge is exposed to having accepted things of value from attorneys appearing before him and ruling in favor of the client represented by those same attorneys, he damages the judicial system and brings the whole court into disrepute. this is especially so here where judge porteous's rulings for ben factors were based on the central issues that excoriated the judge. whether the house approved these facts is a matter you must decide when you deliberate on the case after closing arguments. the senate report makes clear that these facts are really beyond dispute. but accepting the allegations in

article i as true as defense counsel concedes you must for the purpose of this motion there is no question they set out a chargeable high crime and misdemeanor. for these reasons judge porteous's second motion must be denied. let me now turn to his motion on article ii. judge porteous argues that article ii must be dismissed on 3 grounds, that it allegation conduct before and after his conduct to the federal bench and dismissal he claims is constitutionally required as shown in archbald. second, because house experts he claims testified that a judge could never be impeached on the basis of prior conduct, an argument he makes in his pleadings. and finally because the article only allows judge porteous associated with the wrong people. judge porteous in his moving papers concedes that the allegations in article ii for the purpose of this motion must be accepted as true. those allegations in summary are this, that judge porteous while

a state judge began a corrupt relationship with the marcottes where the judge accepted things of value, meals, trips, home repairs, car repairs for his personal use and benefit and took official actions benefiting the marcottes, setting bail to maximize their profits, expressing the convictions of marcotte employees and using the power and prestige of his office as a federal judge and helping to recruit other state judges to form the state corrupt relationship with the marcottes. as you can see article ii by its own terms charges conduct which occurred before the confirmation to the federal bench after his confirmation but before he was sworn in and after he was sworn in and serving on the federal bench. the conduct charged in article ii while a federal judge is egregious, using the power of his federal office to recruit other state judges to form the same corrupt relationship with the marcottes that he had, a relationship that these other

judges would later go to jail for. we proved this at trial. this conduct for the purposes of this motion must be accepted as true. just as in article i, the senate may convict on article ii solely what judge porteous did as a federal judge if he chooses to do so. the only article that charges pre-federal conduct alone is is article iv which charges judge porteous with making false statements to the senate and f.b.i. during the confirmation process. interestingly, although judge porteous takes issue -- other issues with article iv, he does not challenge the constitutionality of the fact that only prior conduct is alleged in article iv. as -- in fact, as i will discuss in a moment, even defense counsel recognizes that it is not only constitution to impeach a judge on prior conduct in certain cases, it is inevitable as well. let me turn first to the constitution. the constitution is silent on

when a high crime or misdemeanor warranting impeachment must take place. the constitution describes certain types of conduct for which impeachment is warranted such as bribery or treason but does not say when the misconduct must have been committed. plainly had the framers wish to confine the conduct would have taken place it would have been easy to do so, they could have had an officer removed for a high crime or misdemeanor while in that office. they chose not to do so and not to limit the scope of impeachment and for good reason. the deliberation of the framers focused on the impeachment clause make it clear that it was the institution they sought to protect from the destructive influence of an officer who violates the public trust and bring that's institution into disrepute. whether the high crime or misdemeanor occurs before or after appointment to a particular office, if the conduct of that official has

brought the institution into ill repute, it stands to reason that the framer's intent was that that conduct could warrant impeachment. there is no indication that in a charge like article ii, which describes conduct before, during, and after appointment, that anything in the constitution presents a grounds for dismissal. the one precedent in which a judge was charged with a single count of pre-and post office conduct is the 1913 impeachment of judge robert archbald. there were 13 articles of impeachment against judge archbald. six accused him of misconduct while on the commerce court. six accused him of misconduct while on the district court, his prior judicial appointment. article 13 set forth allegations that involved misconduct on both courts and amal -- analogous to article ii and on article 13 the senate voted to convict and

remove judge awbd. because debate was closed during the floor vote, there was no formal debate or discussion about the senate's decision to impeach. the senators were not required to state the reasons for their votes. although some did. senator owen stated whether thee crimes be committed during the holding after present office or preceding office is immaterial if such crime determines or demonstrates the gross unfitness of such official to hold a great office and dig knitties of the -- dignities of the people. another senator specifically noted that he was voting not guilty on all but one of the prior court counts because he felt that the evidence did not support conviction on those counts. but that his vote should not be misinterpreted as suggesting that charging prior conduct was improper. in fact, there are many senators of five for example that did not feel the evidence on any count

was sufficient whether preor post and voted to quit on all accounts. now more than a quarter of the sean was absent during the archbald case and it is impossible to motivate every senator who was present. we know of the 68 senators who believed there was sufficient evidence to convict on at least one count pre or post, a full 34 of them expressed unequivocally that they believed that a judge should be impeached on the basis of misconduct preceding their appointment to the current position. how do we know this? because 32 of them told us so by voting to convict on purely prior kict and two others -- convict and two others stating that they would have done so if the evidence of guilt was stronger. we know that 34 of those 68 senators believed it was not only appropriate, but imperative to convict on prior conduct. only seven do we know expressed

the view associated with judge porteous here today. but one conclusion is beyond question about archbald, and that is that the senate voted to convict awrbled on the -- archbald that closes -- an alleged conduct prior to and during his tenure in current office. defense counsel argues in his written pleadings that the distinguished constitutional efforts before the house impeachment task force took the position that prior conduct could not be considered by the senate as a basis for impeachment. this is a rather incredible claim since each of the experts testified precisely the contrary, that the timing of the misconduct was not a constitutional impediment and the constitution permits impeachment, conviction and removal of a federal judge for pre-federal bench conduct. they further testified that the principles underlying the

impeachment process, protecting the judiciary compelled this conclusion. michael gerhart explained say for instance the offense is murder, it is as serious as any crime we have, it completely undermines his integrity and more ral authority, he must have in order to function as a federal judge. the timing of the murder is less concern than the fact of it. this is the kind of behavior incompatible with the federal officials. professor amar stated at the hearing, let's take bribery. imagine now a person who bribes his way into office by definition a bribery occurs before or prior to the commencement of the office, but surely that fact can't immunize the impeachment an removal. had the bribery not occurred the person never would have been an officer in the first place. moreover defense counsel himself

concedes in his written statement of the case to the full senate that prior conduct can be an appropriate grounds for impeachment. in discussing a case where a judge might be indicted or convicted of murder that with was committed before the federal bench but only discovered later, defense counsel conceded impeachment would be appropriate writing -- quote -- "there would be little controversy about removing a judge from office convicted of murder during his term of office and that precedential value would be limited." nor has defense counsel taken that it should be liltd to cases of murder. the senators from illinois may recall the case of judge otto kerner, had he been the governor of illinois before his appointment to the court of appeals. while on the court of appeals he was indicted of accepting bribes not as a judge but as governor long before he was put on the bench. in writing