kerner would be impeached for bribes he took as governor, but that his impeachment was inevitable. to quote mr. turley, judge kerner resigned before inevitable impeachment after he was convicted for conduct that preceded his service." let us assume that the statute of limitations had not barred prosecution of judge porteous on the kickbacks or his corrupt scheme with the marcottes and that judge porteous had been indicted, tried and convicted based on that prior conduct. would it be any less inevitable that he must also be impeached and removed from office? although judge porteous' counsel acknowledges the appropriateness of impeaching for prior conduct and murder, bribery and other cases -- indeed its inevitability -- he evidently seeks to distinguish this case because judge porteous was not first convicted during a criminal trial. of course, the constitution does

not require a criminal conviction prior to impeachment. the framers didn't want to delegate to the department of justice the power to remove a judge, which would be defective, saying it requires a conviction to remove someone on the basis of prior conduct. indeed, the language of the constitution presumes that a prosecution may follow, not precede impeachment, when it provides an article i, section 3, that a party convicted in an impeachment shall -- quote -- never the less be liable. in subject to indictment, punishment according to law, criminal laws. in many prior impeachments, this have been no criminal trial, no prior criminal trial. in fact in the hastings case, impeachment followed an acquittal in the criminal case. so plainly, the constitution doesn't require a prior criminal trial or conviction to impeach, whether the conduct occurred before or while in service. nonetheless, counsel argues it is unfair here because a criminal trial would have more fully brought out the facts in

the case and provided a more detailed record. but this ignores the very full record in the fifth circuit proceeding, the depositions in this case as well as the comprehensive trial before the senate committee. it is worth pointing out that during the trial, judge porteous had been represented not only by the very capable mr. turley but at least eight attorneys from the law firm of brian cave. moreover, this team of attorneys did not feel it was necessary to use the entire amount of time they were permitted to put on their case before they rested. you would think if counsel really felt that there was more to the case that needed to be illuminated, it would have used the full opportunity it was given to present witnesses. finally, there was a policy argument advanced by judge porteous that if the senate convicts on the basis of quct that incurred -- that occurred in part before he was on the federal bench, even though it was intertwined with his appointment and service on the bench, it will open impeachment process to views by partisan

interests. these partisan interests upset by the judge's decision or judicial philosophy might con con con -- conjure up some prior misconduct and use it to impeach the judge. it is true that the power to impeach a judge based on prior conduct could be abused like any other power. if partisan interests wish to urge the impeachment after judge whose decisions they don't like, they can just as well conjure up, however, misconduct that occurred while the judge was on the bench as before they were appointed. the protection against that abuse rests in two places. it rests with the house to reject any impeachment charge which is a mere subterfuge for attacking a judge's decision or philosophy, and it rests here in this chamber where you must never remove a judge for a partisan reason that would erode the independence of the judiciary. importantly, there is no allegation, no suggestion, not

by defense counsel or anyone else, that in this case that is true with respect to judge porteous. there is no claim that this impeachment is based on some illicit partisan interests. there is a more serious consequence, however, of reaching the opposite conclusion , that judges cannot be impeached for prior misconduct, that confirmation is a safe harbor against all removal for all prior offenses, be they undiscovered at the time, and that is the destruction of the public trust that would accompany a policy determination that a judge who has so disgraced his office by committing a high crime or misdemeanor. although they sit in jail must continue to be called judge, must continue to be paid their full salary for life and rest beyond the reach of this body. whether the senate concludes that prior conduct alone should

be the basis of an impeachment or not, since article ii alleges impeachable conduct which occurred not just before but while he was a federal judge and for the purposes of this motion to dismiss those allegations must be accepted as true, this final motion must be denied. mr. president, for these reasons, judge porteous' motion to dismiss should be denied and i would be happy to respond to any questions. the president pro tempore: thank you very much. representative goodlatte will now complete the argument for the house. mr. turley. mr. turley: thank you, mr. president. i thank you for allowing me the chance to rebut some of what my

esteemed colleague has told you today. i have to begin by making an observation, and perhaps you noticed what happened. we were told today that we were going to speak to you this morning about constitutional issues, and the first thing that the house did was they started to go through the specific allegations against judge porteous, the merits of the case. it may be that i'm a bit sensitive, but the way that i heard it made it sound as if if you don't like this guy, if you don't like what the merits say, it should influence how you read the constitution. as many of you know, i believe all of you know, constitutional interpretations don't depend on how you feel about someone. it doesn't depend how you feel about a case. it depends how you read the constitution. and so my opposing counsel took you up to about 10,000 feet. as you look down at these

articles and say look at all the bad things this guy did. he is the one asking you to interpret the constitution. he is not asking you to interpret the constitution. you're required to interpret the constitution. it's your job. it doesn't matter if he was guilty of all these things. he's not guilty. we'll make that argument, but that doesn't have any bearing on how you interpret these clauses. now, i also have to object to the use by the house of testimony by law professors in the house proceedings. as some of you know, the house of representatives submitted a post-trial brief that contained statements from law professors on the merits of impeachment, basically telling you what you should do in this case. the committee and chairman mccaskill correctly, in our view, ruled that's not

appropriate. it would be allowed in a court of law. and so the house was told to redo their brief and resubmit it. the house then proceeded to introduce that very same information in today's presentation. i simply have to object. i also have to object that when they did so, they didn't actually -- the house didn't actually quote the law professors fully on the issue of pre-federal conduct. professor amar actually dismissed it as just all that state stuff. professor gerhardt said no one has ever been convicted of pre-federal conduct, which directly contradicts what the house has said. but the reason that we objected to the inclusion of these professors -- and if i had testified, i think my testimony should have been excluded -- is that it's your decision. judges don't hear experts on the merits of decisions. now, i'd like to actually

address the constitutional issues. i will, however, take the liberty to deal with one factual assertion that the house has made because it was in direct response to something that i had said. i told the members of this body that judge porteous agreed to waive all the statutes of limitations he was asked to waive, that he did not think it was appropriate to stamped behind the statute of limitations. the house proceeded to suggest that he had not, that there were some statute of limitations that he did not waive. the record will show, if you look at some of the material we have already submitted to you in our post-trial brief, that, in fact, judge porteous agreed to every waiver of a statute of limitations that was put in front of him. he did not refuse any waiver of a statute of limitations.

when they came to him and said we want the ability to charge you even if you could block a charge under the statute of limitations, he said so be it, i'm a federal judge. if you find crimes, charge me. now, just to make sure that we understand this, the d.o.j. began its investigation in the mid to late 1990's. the statute of limitations on the charges for the articles of impeachment ran five to ten years. so no statute of limitations had passed for anything that he did as a federal judge, which is what we're discussing today. but putting that aside, the prosecutors had a problem with the statute of limitations with regard to judge bodenheimer, and it didn't stop them from charging. all they did was charge conspiracy and said there were ongoing acts and so the statute of limitations had to run. it wasn't even a speed bump on their way to charge judge bodenheimer. i just wanted to correct that on the record. specifically, judge porteous waived, among others, the right

to charge them with bankruptcy fraud, bribery, illegal gratuities, criminal conflict of interest, criminal contempt, false statements, honest services, wire fraud. those were requested of him, and that's what he signed, so i think it was a bit unfair to suggest that somehow he had not done that. now, the court -- the senate has heard from the house that they were simply showing considerable restraint and deference to this body by aggregateing counts. -- by aggregating counts. my esteemed colleague on the other side said, after all, you wouldn't want us to break these up into what he called unnatural pieces. i'd like to talk about those natural pieces in a second, but i can't allow it to pass when the house said do any of you doubt that if we had disaggregated, the defense wouldn't be here today complaining that they were

facing individual articles on individual claims. i'll simply represent to you, if you look at the record, no one, no criminal defense attorney in history has objected to having specific, defined charges, but more importantly, if you look at the history of this body, defense attorneys and members of this body have objected to the aggregation that is being used in these articles, and indeed, the house of representatives in hastings separated specific false statements so that you could make a decision whether a judge gave a false statement, a specific one, before you reach your decision to remove them. those weren't unnatural pieces. those were stand-alone charges, and those would be in an indictment as separate counts.

now, my esteemed colleague also has objected that we are asking you to set up a situation where some judge is going to sit in a prison -- and i believe the expression was and force people to call him judge. once again, just as the response was to go to the merits instead of the constitutional issues, clearly the light is better by directing your attention to a mythical judge sit nag federal prison, making people call him judge. i'll argue that case if you want me to, but i've got to tell you i would lose. the judge cannot serve in office in good behavior in prison. i don't know of anyone who is credible who has said at any time that a judge could insist on being treated as a judge. i don't know about being called

a judge, but to be a judge, that would not be possible in our view. i'd like to address a couple of points about aggregation. the house obviously walked back from mr. schiff's statement to the committee that of -- that you have the authority to do preliminary votes. that was very clear and at the time i commended mr. schiff for that position. i have no idea what the authority is for saying that you cannot organize your deliberations any way that you want. what you are required to do under rule 23 is have a final vote on the article, and it cannot be divided, and we suggest that you do that. all we are proposing is that the senate know what it's voting on, to look at the individual issues presented in these articles. furthermore, the house says that

this was already rejected by the committee. we were given a fair hearing by the committee in the pretrial motions, and i thank the chair and i thank the vice chair for that opportunity. if you if you look at the record, what occurred is that some senators agreed that they had difficult with the aggregation issue. and mr. schiff stood up and said, you don't have to decide it because you have the authority to do this, you can go ahead and -- and make determinations on individual issues. some senators raised this question and it was ultimately not granted at that time. instead, we have submitted it to you. i will only submit to you that it makes no sense, honestly, for the framers to go through the trouble of establishing a two-thirds vote requirement but allow the house to simply

aggregate charges that virtually guarantees that in many cases, two-thirds of you will not agree on the reason you're removing a federal judge. that can't possibly be what the framers intended, because they weren't stupid men. they were very careful and deliberate men and they set up a standard that was exactly -- that was exacting. now, the house also says, in addition to our being able to do this, to aggregate because it would be so exhaustive to turn one article into three, even though they did that in hastings and prior impeachment cases, they say, but, by the way, these aren't individual claims; they're actually all related. so they're -- they're -- they don't have to be separated because the house says it wouldn't make any sense, you

wouldn't understand it. i direct your attention to article ii. in article ii, judge porteous is accused of using his power and prestige of federal office to assist bail bondsmen in making relationships and acting corruptly. all right, i understand that. i don't think it's an impeachable offense, saying corruption is basic -- is the exact word that madison reject rejected. but still, that's a stand-alone issue. you could make a decision if that happened. and i will simply say, because i will not argue the merits at this time -- i was told to argue the motions -- we have very strong disagreements with the factual representations made by the house. but that is one of the claims in article ii. in the same article, he is charged with knowing that louis marcotte, a bail bondsman from

louisiana, lied to the f.b.i. in an interview. those are two very distinct charges. one is saying that he essentially procured someone to testify or make statements falsely, and one is that he used his office to assist in a corrupt relationship. as you can imagine, if you were standing here in my place, could you defend against both those points with the same argument? i don't think so. those two points raise two different issues. they actually refer to two different issues in the criminal code. what i'm asking from you, with all due respect, is to give this judge the process that you would want for yourselves if, god forbid, you were accused of anything like what the judge is accused of. would it be fair if you stood here accused to have the house

say, you know what, we don't have to separate always; we just pile them all together, because, after all, they have one thing in common: judge porteous? that's not enough. now, we've submitted a -- a motion that showed no discernible connection between some of these aggregated claims and we will leave it to that because we have limited time, and i know the members of this body have somewhere to go and i'm going to try to wrap up as quickly as possible. i would simply note on the skilling issue that if you listen carefully, the house on skilling said that it's not a problem after skilling because you can read in a kickback scheme into these articles. if you -- if you want to, you could read these facts and say, well, that is a kickback, so skilling applies.

isn't the danger to that argument obvious? the senate would be changing an article of impeachment. that is what they're being invited to do. the house of representatives has the sole authority and obligation to define what it is that a judge should be removed for. it's not just their power, it's their obligation. now, the house says, look, we're given great discretion to give you whatever we want. no one tells us what has to be in an article. we can do it because we have the authority to do it. that's true. and the constitution gives you great authority to turn down an article from the house of representatives. that's what you can do. so this idea that the house would produce four articles that don't even mention bribery or kickbacks but you can read it

into those articles is unbelievably dangerous. it means that you could get any article and transform it here on the floor of the senate, you could remove someone for something that the house members did not agree should be submitted to you. isn't that danger obvious? the house had the opportunity to state that there was a bribe or a kickback. bribery is in the standard. it was used by the framers. they rejected corruption but they put bribery in. and so the question is: are you allowed to do a do-over here on the floor of the senate and simply ask the members of the senate to make the article fit like it's close enough for jazz? that's not the standard under the constitution.

now, the house says that the constitution is silent on when conduct has to occur in order for it to be the basis for the removal of a federal judge. in fact, i thought i heard the house say that the framers chose not to put in a statement in the constitution when it would occur. like many in this room, i've spent a lot of time with those debates, probably more than i should. i don't remember ever seeing that. in my understanding, the framers never addressed this issue. but they did address it in the constitution. they just didn't put it in the impeachment clause. but when they defined "life tenure," they said you have life tenure during good behavior. during good behavior in what? it wasn't good benaifer life -- it wasn't good behavior in life. they said good behavior in office. it was in reference to the office that they held because

they wanted to make sure that people would not abuse their federal office. the life tenure guarantee under article 3 of the constitution was to guarantee an independent judiciary by saying that you could not be denied life tenure as long as you served with good behavior in that office. what the house would have you believe is that the framers would allow you, even though it refers to good behavior in office, to remove a judge for anything that they did in life. now, once again, does that track with what you know about article iii? does that make sense in terms of the only seven judges that were removed by this body, that all the time, it turns out, for 206 years congress could have removed someone for anything they did in life? now, the house says you shouldn't be scared by the

implications of all this, that if you allow pre-federal conduct, if you allow anything done in life to be the basis of removal of a federal judge, don't be concerned about abuse. god knows congress would never abuse any authority under the constitution. and basically the argument was -- trust us, we're the house. that's not what the framers said in the constitution. they didn't tell you to trust them because of the house. and, yes, you are here. the house said, don't worry, you're here. so even if we abuse this, it's got to go through you. now, that's true. god knows, this body has stopped a lot of impeachments. it's only agreed to seven removals. but is that the constitutional standard, that the house can go ahead and just impeach anyone for anything they did in life and seek the removal and hope that you correct their actions?

the president pro tempore: the time has expired. mr. turley: thank you, mr. president. and thank you, members of congress -- members of the senate. the president pro tempore: the chair has received two questions for both sides, one from senator durbin and the other from senator leahy. the clerk will report. the clerk: senator durbin's question to both sides: what is the standard of proof for the motivant or petitioner in impeachment proceedings such as the extant case? the president pro tempore: do you wish to respond? professor turley? mr. turley: senator durbin, the standard which we will be

addressing when we get to the merits of the case, has been the subject of considerable historical debate. i will give you what i believe is the weight of that historical record. it is true the constitution does not annunciate a specific standard in terms of a burden of proof. we do not agree with the house that they refer to high crimes and misdemeanors as a standard. that's not a standard of proof. that's the definition of a removable offense. there's a difference. so what we would suggest is that the senate can look at known standards, such as beyond a reasonable doubt. beyond a reasonable doubt, of course, is the standard for a criminal case. the constitution is written in criminal terms, of high crimes and misdemeanors. that's one of the reasons why historically you have had these articles crafted closely to the criminal code. in fact, many impeachments actually took directly from a prior indictment and made the indictable counts the articles

of impeachment. the house has argued that that standard is not necessary and too high. what we would submit to you, and we'll certainly argue this when we get to the merits, is that in the house, recently when they held a member up for censure, they had a clear and convincing standard. that you must at least be satisfied clear and convincing evidence. i -- in my view, as in academic, it's somewhere -- it must be somewhere between clear and convincing and beyond a reasonable doubt. what is more clear, senator, is what it is not. if you read the impeachment clauses, the clear message is that you can't just take facts that are in equipoise, allegations that are supported by one witness and denied by another, and just choose between them. that -- that the facts have to, in your mind, go beyond a simple disagreement and be established, in our view, at a minimum by

clear and convincing evidence. mr. goodlatte: mr. president and senators, the senate has considered and rejected the adoption of any particular standard such as beyond a reasonable doubt. what the senate has determined in the past in these cases is that essentially each -- mr. schiff: is that essentially each senator must decide for themselves, are they sufficiently satisfied that the house has met its burden of proof, are they convinced of the truthfulness of the allegations and that they rise to the level of high crimes and misdemeanors. it is a decision. we can get the precise language the senate has used in the past. but the presiding officer has instructed each senator to look to their own conscience, to look to their own conviction, to be assured that they believe that the -- the judge in this case has committed the acts that the house has alleged. so it is an individual determination, and the senate has always rejected adopting a

specific criminal code-based standard, such as beyond a reasonable doubt, or a civil standard of convincing or clear and convincing proof because it is an individual senator's decision. it also reflects i think the fact that, as the framers articulated, this is a political process, not political in the partisan sense but political in that it is not a criminal process. it is not going to deprive someone of their liberty. what it is designed to do is to protect the institution. and so i think the question for each senator is, has the house sufficiently proved the case, that in the view of each senator, to protect the institution, they must be removed from office? so it's an individual determination. the president pro tempore: thank you, very much. and now will the clerk read the question from senator leahy. the clerk: senator leahy to both sides: the senate judiciary

committee requires a sworn statement as part of a detailed questionnaire by a nominee. until this questionnaire is filed, neither the judiciary committee nor the senate votes to advise and consent to the nomination. would not perjury on that questionnaire during the confirmation process be an impeachable offense? the presiding officer: mr. turley. mr. turley: thank you, mr. president, and thank you, senator leahy. in my view, yes, that is if you commit perjury in the course of confirmation, that that would be basis for removal. in fact, i believe mr. schiff made reference to perjureous statements by judge porteous. we will a a be addressing that, because that's not charged what. would have to be done is the whews have to aus could someone of perjury, as in the hastings cairks and have purge us are

statements and i could stand here and tell you why there was no intent to commit perjury or why the statements were in fact true. while mr. schiff referred to perjury, once again perjury is not one of the articles of impeachment. and what i would caution, even though it can be, i would again caution that this should not be an ad hoc process by which you could graft on actual criminal claims by implying them in language issued by the house. the president pro tempore: congressman schiff? mr. schiff: thank you. this is essentially what article 4 is about which charges judge porteous with make false statements to the f.b.i. and to the senate during his confirmation process. the answer is, yes, absolutely. i think what is very telling here is that counsel has conceded that yes, if someone perjures themselves in the confirmation process, they should be imeesmed but by definition that is conduct that

has occurred prior to their assumption of federal office. if someone can never be impeached on the basis of prior conduct, his answer should have been no. but plainly counsel recognizes there are circumstances where impeachment is not only appropriate but inevitable and essential and where someone lies to get the very office that they are confirmed to, to deprive them of that office, to deprive them of the ill-gotten gain that have deception is i think not only constitutional but essential to uphold the office as well as to uphold the confirmation process itself. the president pro tempore: thank you very much. that concludes the argument on the motions, and under the previous order, the senate will proceed to legislative session for a period of morning business with the senator from florida, mr. lemieux, recognized to speak therein for up to 15

minutes. congressman lemieux. a senator: madam president, i notice the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

mr. lemieux: madam president? the presiding officer: the senator fromful florida. mr. lemieux: i ask that the quorum call be rescind. the presiding officer: without objection. mr. lemieux: i rise to speak to the body i have been a privileged of. representing floridians has been the privilege of a lifetime. now that privilege is coming to eangdz. standing here on the floor of the united states senate to address my colleagues just one last time, i am both hum balinged and grateful. humbled by this tremendous institution, by its work, and by the statesmen i have had the opportunity to serve with, whom i know only from afar but now grateful that i can call those same men and women my colleagues. nothing ever worth doing --

my time here is no exception. the past 16 months i have asked the folks that work with plea to try to get six years of service out of that time. they have worked tirelessly to do that. my chief of staff, my deputy chief of staff vivian martinez, state director carlos robello, ben moncrief, maureen jaeger, brian walsh, frank walker, spencer wayne, victor sarvino, taylor booth and many, many other have made our time here worthwhile and i thank all of them. i especially thank vivian and maureen who left their families and gave up precious time with their children to come to washington to support me in these efforts. i'm also thankful to the people who work in our state office. time and time again when i travel around florida, i am encountered by people who have received such a warm reception

from the men and women who serve us in florida and help people deal with problems with the federal government. i am grateful for their work. senator mcconnell has provided me with opportunities beyond my expectations. he is a great leader, and i am grateful to him. senators alexander, burr, cornyn, kyl, mccain, corker, many others have taken me under their wing and mentored me, and i am appreciative of them. chairman rockefeller and levin, i thank for the work in your committees. senators whitehouse, baucus, we have worked together in a commonsense way to pass legislation that's good for the american people, and i am appreciative of your efforts. senator mel martinez ably held the seat before me. he has been generous in his advice and counsel. senator nelson and his wife

grace have been warm and welcoming mikey and i to washington. i am thankful for your courtesy. i want to thank governor crist. he has afforded me tremendous opportunities for public srvetion and i am grateful. i want to say a special thank you to my parents. my father, my grandfather, rather, in 1951 drove his 1949 pontiac from waterbury, connecticut to fort lauderdale, florida, with his wife and five kids piled in the back. he didn't know anybody. he didn't have a jofnlt but he went there to make a better life for his family. he worked in the trades and construction. he built houses. he taught my father the same thing. as my father worked in the hot florida sun, he had one ambition for his son, that i would get to work in the air conditioning. i have achieved so much for

because of their sacrifice. they sent me to college and to law school and i will forever be grateful for what they have done for me. my most heartfelt appreciation go to my wife mikey. when i learned of this appointment, i met her at the door of our home in tallahassee and she was crying. she was not just crying because she was happy. she was crying because she was worried. we at the time had three small sons, max, taylor and chase, 6, 4, and 2 at tevment and she andi knew something that others didn't know, which is that we were going to have another baby. that baby was born here in washington, our daughter, baby madeleine. throughout all of my travels, she has been an unfailing support for me, and i love her dearly. i am appreciative to her. it has been the privilege of my life to serve here, but i would not be filling my charge in my final speech if i didn't tell

you what weighs on my mind and lays upon my heart about the direction of this country. so what i say to you now is with all due respect, but it is with the candor that it deserves. the single-greatest threat to the future of our republic and the prosperity of our people is this congress's failure to control its spending. in my maiden speerchg i lamented a world where my children would one day come to me and say that they were going to find an opportunity in another country instead of staying here in america because those opportunities were better there. in one year's time, that lament has proven to be too optimistic because the challenge that confronts us will not wait until my children grow up. when i came to congress just 15 months ago, our national debt was $11.7 trillion.

today it stands at $13.7 trillion. it has gone up $2 trillion in 15 months. it took this country 200 years to go $1 trillion in debt. our interest payment on our debt service is nearly $200 billion now. at the end of the decade, when our debt will be nearly $26 trillion, that interest payment will be $900 billion. when that interest payment is $900 billion, this government will fail. and long before that time, the world markets will anticipate that, and our markets will crash. this is not hyperbole. it is the truth. not since world war ii has this country faced a greater threat.

not since the civil war has this threat come from within. how has congress arrived at this moment? for the past 40 years it's spent more than it could take. it has borrowed from social security and foreign governments, failing to make the honest choices and prioritizing what it should spend. budgeting in washington seems to be nothing more than adding to last year's budget. we are funding the priorities of the 1-9d60's, 1970's, 1980's, 1990's without any real evaluation as to whether or not those are still good priorities and certainly not as to whether they're being done efficiently and effectively. it would be as if a teenage child received not only all the gifts on their christmas lits list this year but the gifts on all of their christmas gifts going back to when they were three. it is clear congress is capable of solving this problem with business as usual. what is needed is

across-the-board spending cap to right the ship. an across-the-board spend cap will necessitate oversight and require prioritization. congress will finally have to do what businesses and families do all across this country: make tough choices. make ends meet. i have proposed such a cap. i have proposed going back to 2007-level spending across the board. was our spending in 2007 so austere that we could not live with it just three years later? if we did, we would balance the budget in 12013, and we would cut the not debt in half by 2020. and you would save america. unlike most problems that congress addresses, this problem is uniquely solvable by congress.

congress can't win wars, only the brave men in our military, who we especially remember on this day, december 7, of all those who've served for our country in all of our wars who keep us safe and free -- only those men and women can win a war. congress cannot lead us out of recession. only job creators or businesses can create jobs. but this problem is solely of congress's making, and uniquely solvable by this body. what congress should do is strengthen its oversight. the lack of oversight in washington is breathtaking. evaluate all federal programs, keep what works, fix what you should, get rid of the rest, return the money to the people, and use the rest to pay down this cataclysmic debt. the recent work of the debt commission is a good start, and i commend my senate colleagues who voted for this measure.

it was courageous for them to do so. but out-of-control spending is not just a threat because it is unsustained. it is also changing who we are as americans. remember our founders told us that the powers delegated to the federal government were few panned defined. -- were few and defined. the powers to the states numerous, indefinite, extending to the causes that concern the lives, liberties and property of the people. the size of the federal government is corrosive to the american spirit. the good intentions of members of congress to solve every real or perceived problem with a new federal program and the false light of praise that attaches to giving away of the people's money is endangering our republic. every new program chips away at

what it means to be an american, harms our spirit and replaces our self-reliance with dependency, supplants an opportunity ethic with an entitlement culture. it is at its face un-american. it is not the government's role to deliver happiness. rather, it's the role to stand clear of that path to allow our people to pursue that god-given right. what has created our prosperity, after all, is not our government. it is our free-market system of capitalism. it is through the healthy cut and thrust of the marketplace that new technologies, new jobs and new wealth is created. through that dynamic process, some win and some lose. but it allows all of our people, regardless of their race, gender, creed, color or background the opportunity to succeed or fail.

and it ensures for us that unique expression, "only in america" is not just a refrain from the past but an anthem for the future. can you imagine the tragedy if the downfall of the american experiment was caused by a failure of this congress to control its spending? the challenge of this generation is before you and it is not beyond your grasp. there is nothing that we as americans cannot do. we have fought imperial japan and nazi germany at the same time and beaten both. we have put a man on the moon. we have mapped the human genome. and in the spare bedrooms and garages and dorm rooms of our people, our citizens have created the greatest inventions and the greatest businesses that

the world has ever known which have employed millions of people and allowed them to pursue their dreams all in the freest and most open society in the history of man. we are that shining city on the hill. we are that beacon of freedom. we are that last best hope for mankind upon which god has shed his grace. president theodore roosevelt said that one of the greatest gifts that life has to offer is the opportunity to do work that is worth doing. i can't think of a greater gift than the work that lies before you. righteous in its cause, noble in its purpose, and essential for the prosperity of our people. i will always cherish the relationships that i have gained here and the work that we have done together. god bless you, god bless the

united states senate, and god bless our great country. madam president, i yield the floor. the presiding officer: the senate stands in recess until 2:30 p.m. recess: >> without the new s.t.a.r.t. treaty in ratified by the senate, we do not have a

verification mechanism to ensure that we know what the russians are doing. and they don't know what we're doing. when you have uncertainty in the area of nuclear weapons, that's a much more dangerous world to live in. >> find out more about the expired start nuclear arms treaty with russia, what you might accomplish, with a tree stands now as well as its history. online at the c-span video library. search, watch, and share. all free. it's washington, your way. >> this afternoon senator john kerry will be at the center for american progress talking about u.s.-china relations.

>> while the senate is unbreakable we are going to show you portions of this morning's impeachment trial dealing with defense motions to dismiss some of the charges against louisiana federal judge tom porteous. is charged with four counts of corruption and lying. at the end of the traversable vote on whether to remove him from office. this is the 19th time that they have conducted impeachment trials.he >> 2010, president pro tem 41 tt

pursue senate resolution 458 senators mccaskill, klobuchar, white house, udall of new mexico 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 offe >> the first motion before you today is a motion to exclude as a basis for the removal of a federal judge any so-called prefederal allegations. that is conduct that allegedly occurred before judge porteous became a federal judge. this merely deals with article 2 which is why we recognized as a prefederal 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 to his so-called honest services. the supreme court recently rejected that very theory as unconstitutional vague. we believe the senate should do likewise.

third, and finally, there's 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 request that the senate deliberation be confined only to those allegations that constituted valid bases for removal under the united states constitution.

throughout history, senators have expressed the 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 the body. only 7 ended in conviction. your predecessors accepted that the impeachment clauses contain a implied hypocratic 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 previous introduction i would like to turn to the first motion before the senate in which judge porteous asks for

the exclusion of prefederal allegations. the first motion deals with the most dangerous aspect of the articles of impeachment, the house through article 2 and to some degree through article 1 is seeking to have judge porteous removed on the basis of conduct that allegedly occurred before he became a federal judge. the house's prefederal charges in this case are an direct 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 prefederal conduct. in your own. -- no one. the prefederal 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 said you know mister, i don't see it are you sure you dropped it. he said oh, no, i dropped it down the street but the light is better here. unable to find a crime during the 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 the experts and an 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 expressed language of the constitution itself. which refers to conduct during federal service, during services

in 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 archbald. 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 archbald 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 a combined all the 12 earlier provisions into one. archbald was convicted on all six -- i'm sorry, was acquitted on all six articles that focused on kentucky 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% ready for acquittal. many senators rose to amplify the reasons why they were rejecting those articles.

senator brian of florida stated, i am convinced that the articles of impeachment lie only for conduct during the term of office being filled. the senator from 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 that present. and did is 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 works 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 archbald 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 i think 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 region 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 a 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 law officers to prefederal attack. one statement in the archbald 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 when the country was in the state of high political excitement. and when some supposed political exigency was influencing a public partisan a hostile public partisan might heart attacken back to the misconduct of a judge. one can certainly imagine a period of high political excitement if you try hard enough.

the point is that despite receipt reck of -- rhetoric of past times, this is why senators gave them long terms and long constituencies to resist the 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 prefederal 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 supreme court justice could trigger impeachment based on alleged acts of decades of practice before taking office. other officials, the vice

president, cabinet member could be similarly confronted with prefederal 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 like this points outlet 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. one 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 nonsensical argument from a constitutional standpoint. the reason is that in the case of prefederal 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 could serve time and good behavior given time and prison. the house will also argue reasons for the lack of any precedent of removals for prefederal 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 prefederal misconduct simply resign if it's serious. history repudiates that argument. it's simply not true. a phone number of individuals that have had information of misconduct in their prefederal

lives revealed after they took office and have 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 prefederal conduct. if you believe that judge porteous committed removal 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 do your predecessors and reject this as a basis for his removal. i would like to now turn to

perhaps the most novel argument on the theory that was rejected by the supreme court after the impeachment vote in the house. at issue is the honor services claim that is at the heart of article 1 even before this impeachment honest services claims were controversial in federal court. various judges have, in fact, rejected this claim. while experts were predicting a rejection in 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 is 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 honest services claim and they lost that gamble.

when the court ruled in skilling versus 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 allegedly 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 bet on skilling. and ignore that the state of 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 thebes that are b -- that are barred by fra. and what is being offered for the basis of his removal. house managers crafted article 1 around the same theory of honest services that is being advanced -- that was advanced by the federal government in the skilling case. article 1 alleges that judge porteous is, quote, guilty of high crimes and misdemeanors and should be removed from office because in connection with the 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 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 creely. second, that he made misleading statements at the recusal hearing about his relationship with these two attorneys and he denied the motion to recuse. now, the reason the house did not allege either bribery and kickbacks became obvious when the defense was allowed to cross-examine the house witnesses before the senate committee. concerning article 1. 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, closed quote. in basing its allegations of this criminal code which is title 18 section 1346, the house followed along 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 1 on march, 2010. that means for months that 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 1990s -- actually it was the more the late 1990s 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 louisiana. in the end some judges were indicted. however the government which looks 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 would 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 doj declined a host of other problems in bringing such a case. 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 and there's left deception the kickback. the house's gamble failed in june. when the supreme court issued its trio of decisions led by the skilling versus united states decision where the court directly and by the way unanimously rejected the theory underlying article 1. 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 1. as noted earlier, article 1 does not include any allegation of a bribe or kickback. instead, it 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 was, in fact, no corrupt scheme.

our proof of 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 concern 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 the 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 a basis to remove federal officers from presidents to judges to cabinet members. simply put, deprivation of honest services is the modern equivalent of mal-administration. many of know that james madison and the framers rejected mal-administration for impeachment and by the way, they 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 1 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 sword dangling over their head not knowing if a popular decision will trigger removal. they deserve fair notice. it's worth noting 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 honor services statute in response to skilling. that bill known as the honest services restoration act would

revise the honest services statute to proscribe what is defined as undisclosed self-dealing by the public official. notably even under the definition of honest services, the allegations in article 1 would not meet that standard any more than it -- it would meet the standard under skilling. senator leahy's bill defines quote undisclosed self-dealing performing an official act, quote, for the purpose of bends either himself or others in their financial interests. article 1 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. creely or mr. amato. those gifts, which we'll be talking about later, occurred years before.

but, of course, that's not the prior and that is not the current standard. the senate must decide if a federal judge can be removed on allege 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 the federal judge can be removed for 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 manager in drafting these articles used a tack particular called aggregation. it's not new. it's often been the subject of criticism by both senators and scholars. aggregation is a 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 5 or 10 senators might agree that any given act is sufficient to remove a federal judge.

that negates article 1 in section 3 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 explain this with an example. let's say 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 ten 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 constructionalist to see the violence that that approach does to the expressed 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 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 aggregate of claims of 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. conceded that it may be necessary to do this when we

last had this discussion before the committee and chairman mccaskill. the senate can when it deliberates say we want to have a separate vote internally on each of the facts that are alleged in article 1. on each of the facts that are alleged in article 2. you can make that decision and if -- and if the vote internally is that you don't agree, you have -- 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'll find that quote on page 1861 in the green books before you. congressman schiff says you will have every opportunity when the evidence is presented to you to vote on it, on any way, shape or form you decide. nothing we do will prejudice that. later in the hearing when

senator klobuchar asked congressman schiff, quote, whether we could decide on our own, to individually vote on each one or vote them as a group, would we be allowed to do that? congressman schiff says that's exactly right, senator. and i commended congressman schiff because i believe that is an honorable and correct decision. 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 there was no 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 that 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 practices that were applied in prior cases. for example, in the hastings

impeachment case, for some of you, in fact, were involved, if you recall there were 17 articles of impeachment. each of those articles isolated one false statement that hastings allegedly made. articles 2 through 14 were all short and they were largely identical. the first and third paragraphs of those articles were, in fact, identical. the only difference was the specific false statement. the house did that so that you would have the opportunity to state, to vote whether you believed 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 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 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 that they believe should be subject to removal. and then the seventh article was a catch-all article that combined all of the previous alleged acts. the difference between this and a catch-all provision is that you and in this case your predecessors had the ability to vote on those first six claims so you knew as a body if, in fact, two-thirds of you agreed that any of those prior six actually did occur and actually did constitute removal conduct. that is not the case with aggregation. what we're 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 that you simply vote preliminarily as was discussed with congressman schiff on each of these insular 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 that if they first occurred and that you believe that they would be the cases 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

won't take up your time by quoting them again, many senators have objected to the aggregation of claims. in history. in the archbald indictment, for example, george sutherland of utah objected to his colleagues and stated in cannot vote on this article one way or the other because of aggravation. >> the chair would like to advise you that you've consumed 40 minutes. >> thank you very much, mr. president. as a law professional i'm trained to speak in 50-minute increments and i'll 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 not in this case but in future cases and we would like

to remain the rest for rebuttal. >> 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. president, members of the senate, i'm representative schiff and i'm joined by bob goodlatte and jim sixteenen brenner of wisconsin and hank johnson offorn george as well as our counsel alan barren. when the impeachment trial began in this case, some weeks ago we acknowledged historic significance of an impeachment proceeding. and how rarely they are undertaken. this is for good reason. the overwhelming majority of men and women appointed to the bench have great integrity. and uphold the enormous trust that the public places in them. very seldom does someone corrupt

get nominated for the bench and in those cases where a significant problem is discovered during the confirmation process, most withdraw from further consideration or their confirmation is denied. 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 to protect the institutions of government. by allowing congress to remove persons who were unfit to hold positions of trust. as alexander hamilton tried to impeachment a federalist in '65 there are those offenses who proceed from the misconduct of must be men or in other words from the 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 violative of the public trust and he must be removed. as a federal district judge in new orleans, the first proceedings against judge porteous before disciplinary panel of the fifth circuit court of appeals. after taking evidence in conducting two days worth of hearings at which judge porteous testified under a grant of immunity, the fifth circuit concluded that judge porteous's misconduct quote might constitute one or more grounds for impeachment and referred the matter to the judicial conference of the united states headed by chief justice roberts. 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 the 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 when discussions with the justice department 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 which were 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 including the very revealing transcript of 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 of our investigation, the committee considered carefully whether judge porteous' conduct was so morally repugnant, so violative of the public trust and he demedian himself in public

office that he was guilty of high crimes and misdemeanors that he should be removed from the bench. unanimously the committee concluded he was guilty of high crimes and misdemeanors and must be impeached. our committee studied the very issues implicated in this morning's motion to dismiss. we considered carefully how many articles should be crafted. whether his conduct naturally divided itself into coherent schemes and if so, how many? so as 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 quite logically into four parts. one article based on his corrupt scheme with the lawyers. one article based on his corrupt scheme with the bondsman. one based on his false bankruptcy petition and one based on his deception of this very body of the senate. we did not wish to pile on charges against judge porteous by dividing any of these 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 his many serious false statements on mandatory judicial disclosure forms. but opted instead to introduce that as evidence of his willingness to perjurier himself in both 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 impeachment trial committee in this case ruled precisely against this same motion counsel makes only two months ago finding that the schemes charged were very straightforward. we also considered a charge of a violation of a specific criminal statute that the judge violated 18usc, x, y, z.

some charge no specific crimes and some have no crimes at all and it's very clear no particular statute need be referenced, only the conduct that constitutes a high crime or misdemeanor which is why as i will explain later judge porteous' motion to dismiss article 1 claiming that it charges a violation of 18usc, section 1346 is so fatally flawed. the article charges no such violation of that statute and indeed makes no reference to that code section, whatsoever. the house judiciary committee considered how to view the illicit 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 on 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, though all 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 in 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 if that judge that he must be impeached to reach the aconclusion would be to countenance a continuing injury to the judiciary which would be forced to assume judges are 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, though, he sits in prison, nothing in the language of the constitution or 200 years of precedent supports such an absurd result. this was the unanimous view 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 can convict judge porteous on the buys 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's motion to dismiss let me begin with a discussion or the arguments of the judges 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 that 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 has 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's 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 balked. it was then judge porteous began assigning creely the curatorships and asking for the kickbacks. it's undisputed that he assigned creely from 1988 to 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 that the cash they gave judge porteous was funded by these curatorships. by initiating and implementing this 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 is only the beginning of judge porteous's 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 referred to as the lilberg case, the hospital case. amato enters his appearance in this case as an attorney for the lilbergs 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 about the late introduction of this attorney. seeking that judge porteous reassign 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. judge porteous did something much worse. the transcript of that hearing was truly revealing and sets forth a series of misleading misstatements and half truths and outright lies by judge porteous. judge porteous steered the colloquy into a discussion of whether amato had ever given judge porteous campaign contributions. in that discussion, judge porteous stated, 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, many 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 is appealed. the court of appeals based on the false record that judge porteous created the firms denial. so counsel for the other part lifemark, was unknowingly forced to represent his client against an opposing counsel giving judge porteous thousands of dollars as part of a corrupt scheme.

in one of the most appallingly corrupt schemes, after the case is tried, but hadn't been decided, and again, nonjury case, the judge and the trier of fact as law the judge solicits and receives a secret cash payment of $2,000 from amato. amato had 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 a million dollars in fees if he prevailed and if he lost, he would make nothing. and that 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 lilberg case very favorably to amato's client. this decision is later reversed in scathing terms by the u.s. court of appeals in the fifth circuit. in the opinion the appellate court which characterized by the

appellate court which characterized judge porteous' central rulings as inexplicable and apparently constructed out 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 of trial had given the judge thousands in secret cash. that's article 1. article 2 alleges and the evidence has 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 his sister laurie marcotte. judge porteous would take official acts to financially benefit the marcottes by setting bail at amounts they requested to maximize their profit, not on the best interest of the public, not what was necessary to secure the defendant's 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 bond setter. while other judges would go to jail for precisely this same relationship with 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's lifestyle in numerous ways.

in response to judge porteous' requests, they frequently 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 fence, digging the holes, 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 bondsman. 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 that 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 established is this was a classic quid pro quo relationship between a judge with hand out and a corrupt bondsman who could do what he could for him. the 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 for marcottes. the marcottes continued wining and dining marcottes because they needed help to recruit a successor to assume judge porteous's formal 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 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 believed he was a drug user. bodenheimer testified when judge porteous vouched for marcotte's integrity it was critical to his decision to form a relationship with louis marcotte. judge bodenheimer would later be

convicted and incarcerated 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 three 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 he filed it under penalty of perjury using a fake name, g.t. ortis. further, just a few days of

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 4100 tax refund. he concealed a money market account that he used the gay 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 he had gambling. he had a secretary pay off a credit card account shortly before filing and failed to report the transaction. after the bankruptcy judge issued an order confirming judge porteous's chapter 13 plan, which prohibited him from incurring new debts without permission, judge porteous violated the order by secretly incurring additional debt at

several casinos and by obtaining 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 hide his bankruptcy and his gambling problem. now, let me turn to article 4. i previously mentioned while he was a state judge, judge porteous had corrupt schemes going on with the attorneys amato and creely with the marcottes. how then did he ever get confirmed in the first place. the establish established that judge porteous repeatedly lied to the fbi 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 fbi agents and filled out two separate questionnaires, one of

which was sent directly to the senate committee on the judiciary. there's perhaps no more important question for an applicant for a senate-confirmed position than that seeking information concerning the candidate's integrity. they were false given his corrupt relationships with amato and creely and his corrupt relationship with marcottes. and judge porteous understood the questions as calling for his disclosure with 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 a employee aubrey wallace who had taken care of judge porteous's cars and house repairs for judge porteous. 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 jeopardize his appointment. judge porteous knew he had to conceal his corrupt relationship with marcotte if he had any hope of being confirmed as a u.s. district judge and that's exactly what he did. almost all of the salient facts in this case that i've just mentioned are not seriously contested. in connection with article 1, and as a relationship of creely and amato, judge porteous admitted the critical facts during his sworn testimony in the fifth circuit where he was given immunity of testimony in a criminal proceeding. he admitted creely gave him money and balked and continued to do so. he was asked about the curator money and he admitted sending the curatorships to creely and getting cash for amato and creely after he assigned them

the curatorships. though he will not call it a kickback, judge porteous does not deny getting the cash back from the attorneys after sending in the curatorships. when he was asked how much money he got back from creely and amato during the fifth circuit proceedings, his answer was, i have no earthly idea. i have no idea. not that 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 from amato during the pendency of the lilberg case? yes. he admits to that in the fifth circuit. he 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 if he got it personally or he sent his secretary to pick it up but he doesn't deny getting the cash. the record is absolutely clear that judge porteous does not disclose his receipt to the curatorships money when he was asked to recuse himself from the lilberg case. he admits filing bankruptcy under a false name saying it was his lawyer's idea. he admits not disclosing his income tax form and gambling losses as required. he admits not disclosing the bank account he used for gambling. and as for the judge's false statements to the fbi and the senate, the defendant's own expert testified that if the judge received kickbacks while on the state bench or had a corrupt relationship with bail bondsman he would have understood this must be disclosed in answer to the questions he was asked by the fbi and the senate. these were the facts. the house considered and unanimously approving four articles of impeachment. the house determined that the

corrupt conduct by judge porteous fell into four discrete schemes one involving his corrupt arrangement with yeand amato and his false filings in bankruptcy and the final concerning his deception of the senate and the fbi. notwithstanding this historic precedent of giving the house broad discretion in drafting articles of impeachment and the plain logic of decision, judge porteous complains that the articles contain allegations that in counsel's 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 1 and 2, 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 aggaits a series of disparate allegations. he argues further the senate

should dismiss all of the articles and the pleadings and in so many words vote on each separate predicate claim on each article. judge porteous mischaracterizes the articles and the impeachment precedent on the issue. there's to 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 discrete acts as judge porteous contends. each article describes a course of conduct towards a unitary and pursued through the means. article 1ize judge porteous in proper conduct while presiding of the lilberg case and his relationship with amato and creely. article 2 describing his corrupt relationship of the marcottes and provides in details what he received for them and what he did for them. article 3 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 4 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 comprise discrete 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 contain 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 consistent with the constitution and ruled, quote, each of the four articles negligence 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, unquote. each article contains a series of factual allegations comprising the charge course of conduct that constitutes the article, although the requirements for how an account 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, say, involving a scheme or artifice to defraud and a whole bunch of conduct is alleged in that particular scheme and artifice to defraud. theish doesn't have to agree on every single piece of evidence of what's -- of that being judge. they have to look at the evidence, and conclude, yep, based on what we do see, we do see a scheme or an artifice to defraud in this case. isn't that the case here as well because the course of conduct integrated enough can fall within the general impeachment

first degree of high crimes and misdemeanors? that analysis hits the nail right on the head. each of the four articles describes integrated schemes, integrated courses of conduct. looking at article 1, 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 the 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 discrete spheres joined in a single article and had we set them out with amato, 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 on him nis bus article. -- omnibus article and the house chose not to do and the house has summarized the prior counts and the senate has not only deemed improper but repeatedly voted to convict on such omnibus articles. the judge has suggested that the consideration of the articles as drafted 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 convention. in article 1 there's no reason that he would not connect that he or she was satisfied with the

core theories set forth in that count and the same is true with articles 2, 3 and 4. counsel for judge porteous has argued that the cases of judge hastings and archbald support his claim. pointing to the comments of some individual senators. but as the senate impeachment trial 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 different in stance to those raised in the hastings impeachment. in that case, there was a parliamentary inquiry as to whether an order to find judge hastings guilty a senator had to find he committed each of the four allegations in the given article. the president pro tem responded which is for each senate to determine in his own mind, in his own conscience and in

accordance with his oath that he do impartial justice according to the law. it is the chair's opinion if the 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 in the integrity and 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 them that judge porteous by his conduct in the given 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 ultimate request of the 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, the 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, quote, 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 1. judge porteous acknowledges in his written pleadings that for the purpose of this motion, all of the facts alleged in article 1 should be accepted as true. judge porteous urges the senate to dismiss article 1 on 3 grounds. first, that it charges a violation of title 18usc, the mile and wire fraud statute that on the supreme court decision in skilling an honor services claim cannot be made under that code section. second, he argues that judge porteous could not have known that taking kickbacks lying during the recusal hearing or taking thousands of dollars of cash from an attorney 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 motion 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 let me turn first to the >> the chief democratic impeachment manager testing in thomas porteous. the senate is in recess until 2:30. until then, the number of republican leaders wrap up the compromise on the bush era tax cuts. this is about five minutes. >> well, good afternoon, everyone. let me just say we're pleased as you well know and have been reporting for the last 24 hours to have reached an agreement

with the president, and the vice president on how to deal with the issue here. one the issues here at the end of the session, which is to make sure the american people's taxes don't go up at a time of 9.8% unemployment. i'm very hopeful and optimistic that a large majority of members of the republican conference will find this proposal worth supporting. and i'm hopeful that the democratic leaders will be able to convince their members as well that this is the way to go forward and the right thing to do under these circumstances here as we move towards the end of the 111th congress. with that, let me call on john kyl. >> excuse me, leader. one comment. some of you have asked about specific revisions of tax law and whether or not it's included in what we are doing. i ask that you give us and our

staff an opportunity to work through some of those issues that haven't been discussed by the president. give us time to work through those before asking us to tell you exactly all of the specific things that are in or outside the tax package. we are working through those quite rapidly. i think we conclude it fairly quickly. >> there are a lot of stories as would be expected to be about who won or who lost politically in the agreement. the way i look at it, and many members of our conference look at it, what would be the best thing for our country right now? we believe our number one goal is to make it easier and cheaper to create private sector jobs. and the best thing that we can do to make it easier and cheaper to create private sector jobs is not to raise taxes on the people who create jobs and on the american working people in the middle of an economic downturn.

that's why the right thing for our country is to support the tax agreement. it makes it easier and cheaper to create private sector jobs. >> i think the american people have two many jr. concerns. -- major concerns. one, issue of economy. second, job creation, washington growth, and spending and debt under control. i think the proposal that's been reached on taxes is an important one where the economy is going concerned. i believe if we are going to create issues, we can't have jobs going up on the job creators and small businesses. in this particular agreement preserves the current tax rates and hopefully will unlease some economic growth to get people back in the country back to work. the second thing that i think the american people want addressed and addressed in shorter as well, is the issue of spending and debt. i hope before the congress

adjourns, we can come to an agreement on the spending bill that doesn't increase spending, that recognizes that we have to get our fiscal house in order here in washington. and i hope that we can get the cr passed, a clean cr passed before congress adjourns and deal with the issues of taxes, spending, debt, and put the other things off until next year when we are going to have an opportunity to bait a whole range of other issues. >> i appreciate the president's willingness to work in a bipartisan way to give the kind of certainty that american businesses and the job creators in the country have been asking for. by not raising taxes on anyone when there's 9.8% unemployment in this country. i appreciate the president's efforts to agree that's the proper way forward to try to revitalize the economy. >> i'll take a couple of

questions. >> are you considering the agreements final or still having to be passed? >> the agreement is final. senator reid and i will have to discuss procedurally how to go forward. in the senate, that requires a pretty broad agreement. i believe it is his intention. he can speak for himself to bring it up first in the senate. my assumption is we'll be dealing with it some time soon. >> any blocks, any thresholds that can be overcome? there seems to be opposing voices already. >> i think it's pretty early to tell who's doing to vote how. i reported to you a few moments ago, i think the vast majority of the republican members of the u.s. senate feel this is a step in the right direction. an important step to take for the american people. i think the vast majority of my members will be supporting it. thank you. [inaudible conversations]

[inaudible conversations] >> and we return now to live coverage of the u.s. senate. senators have spent most of the day hearing testimony in the trial of louisiana federal judge thomas porteous who's charged with four counts of corruption and trying. at the end, the senate will vote to remove him from office. that could happen tomorrow in closed session. 2/3 vote of senators voting in even one of the articles could result in his removal from the bench and loss of pension. now to live coverage of the u.s. senate here on c-span2.

mr. reid: mr. president, is there -- is there a caucus present? -- a quorum present? femme teem a quorum is present. the president pro tempore: a quorum is present. a quorum is present so we will e sergeant-at-arms call on the members of the house, if they are prepared to proceed.

mr. reid: consideration of the articles of imeement against judge porteous, is that right? the president pro tempore: the leader is correct. we're now waiting for the presence of the house members.

the president pro tempore: the senate will resume consideration of the articles of impeachment against judge g. thomas porteous, jr. the chair understands that final arguments for the house on the articles of impeachment will be presented by representative schiff and representative goodlatte. mr. schiff has asked to speak first. mr. schiff, do you wish to reserve time for closing, and, if so, how much time? mr. president, if it is permitted, i'll turn it over it my colleague mr. good lat to speak. when he is finished speaking, we would like to reserve the balance of our time, unless we're required to submit that in advance. the president pro tempore: you may proceed. shifa pharmaceutical plant mr. president, and members of the senate, this is a case about a state court judge from louisiana who had a gambling problem and had a drinking

problem and as a result of both of those problems also had serious financial problems. he was constantly short of money. this judge entered into a corrupt scheme with lawyers and bail bondsmen who could help him lead a lifestyle he could otherwise not afford. he sefnts the lawyers cases, they kicked back money to the judge, and they paid for many of his meals, his liquor, his parties, even some of his son's expenses. he set bonds for the bail bondsmen at the amounts that would maximize their profits. he expunged the convictions of their employees and they also paid for many of his meals, his trips, his home repairs, his car repairs, and lavish gifts. the white house was not aware of this corrupt activity and nominated judge to the federal bench. the judge misled the senate about his background, concealed the kickbacks in graft, waited until after his confirmation hearing but before he was sworn

in to expunge the conviction of another bail bondsmen employee and falsely told the senate that there was nothing in his background that would add vrsly affect his confirmation. unaware of what the judge had been engaged in, he was confirmed. the very reason why the information sought by the senate was so material, whether he had a drinking problem, whether he had a gambling problem, whether he lived beyond his means, whether he engaged in conduct that would make him the subject of coercion was to prevent the damage to the institution of the judiciary that would be caused by putting a corrupt man on the bench. shifa pharmaceutical plant what happened when -- mr. schiff: what happened was all but predictable. the corruption continued. the judge declares bankruptcy, he files with a false name and files under penalty of corruption, falsely states his income, secretly takes out a new credit card, violates the bankruptcy court order by incurring new debt.

he files false judicial financial disclosures stating that he is no more than $30,000 worth of credit card debt when he owes over $100,000 on his credit cards and most pernicious to the interests of his creditors, he keeps on gambling. the judge is assign add complex case and a trial that has been years in the making, pit ago hospital against a pharmacy and worth many tens of millions of dollars. six weeks before trial one of the lawyers that had been paying him kickbacks in the state court is brought in at the last minute to represent the pharmacy. the hospital smells a rat. they don't know about the kickbacks, but they're suspicious about why an attorney with no experience in the case or complex bankruptcy litigation would be brought in so they ask around. and they don't like what they hear. they ask the judge to recuse himself and he refuses. falsely representing that he never received money from the

attorneys but once and even that was only a campaign contribution that went to all the judges of that parish. the case goes to trial and is taken under submission by the judge. while he is considering how to rule, he goes fishing with a lawyer who paid him the kickbacks and hits him up for $2 more in cash. the two partners at the law firm put the cash in an envelope and the judge sends his secretary to pick it up. at the law firm the judge's secretary asks what's in the envelope? the lawyer's secretary rolls her eyes, never mind, the judge's secretary says. i don't want to know. and the relationship with the bail bondsman isn't over either. he can no longer set bonds for them but he can help them recruit other judges who will step into his shoes by vouching for his character, by bringing them together, and he does.

now we are here. everyone around the judge has fallen. the bondsmen have gone to jail. the other state judges he helped recruit have also gone to jail. the lawyers who gave him the cash have lost their law licenses and given up their practices. sh-f -- mr. schiff::litigants wonder if they too must pay a judge in cash and under the table, do the homework, car repairs and other favors to win their case or have their conviction expunged. only the judge remains defiant, claiming his problems are no more than the appearance of impropriety, not actual wrongdoing. he retains his office, his title, his full salary, though he hears no cases and hasn't for

years. and if he could just eek it out a little longer, a full retirement. the judge is a gambler, and he is betting that he can beat the system just one more time. in a moment i'll turn it toefr my colleague, bob goodlatte to, give a detailed presentation of what the house proved at trial for high crimes and misdemeanors committed by judge g. thomas porteous. the remarkable thing about this case is most of the pertinent facts are not in dispute as the neutral report prepared by the senate committee demonstrates, he evidenced on -- the evidence on most of the salient points was uncontested. at the same time the report is not a substitute for hearing from the witnesses themselves, or because that is not possible for the entire senate, hearing from the senators who did. the senate impeachment committee of 12 conducted a remarkable

trial, weighed the testimony of every witness, heard every argument and they will be a great resource to you during your deliberations. to give one example, it is uncontested that judge porteous received $2,000 cash secretly from his attorney and possible while that case was under submission. judge porteous admits this before the fifth circuit. the judge called it a loan that he never paid back. but his counsel has taken to calling it a wedding gift, as if it were a piece of china from the pottery barn. significantly, no one other than defense counsel has ever called this cash a wedding gift. not am mat tow&creely and not the defense himself. this is himself the best counsel at his most creative. the 12 senators who heard the testimony are in the best position to refute those

characterizations which are so at odds with the evidence. one last example before i turn it over to mr. goodlatte, the defense has suggested many times during prior proceedings and may today, that judge porteous has been impeached for nothing more serious than having lunch with attorneys or bail bondsmen. this was represented to the committee of 12 senators after the pretrial deposition of bob creely in which only senator johanns was present. because senator johanns had heard the testimony, he was able to inform the other senators of what creely really had said, as johanns admonished the defense -- quote -- "i sat through the creely deposition, and to suggest this was about a purchased lunch is really, in my personal opinion, very misleading." he later went on to say, "again, i will emphasize please don't try to convince my colleagues that the creely deposition was just about a free lunch. it was not, and i can cite what

i heard that day." the 12 senators who heard these witnesses can cite what they heard during that trial. and they will be a tremendous resource. i would now like to introduce mr. goodlatte of virginia for a detailed presentation of the evidence the house presented. tanned when he -- and when he concludes, we will reserve the balance of our time for rebuttal argument. the president pro tempore: the chair recognizes representative goodlatte. mr. goodlatte: thank you, mr. schiff. mr. president, let me turn to what the evidence showed. by way of background, in the early 1970's, judge porteous practiced law as a partner with jacob am mat -- amato. in 1984, judge porteous was elected judge of the 24th

judicial district court in jefferson parish, louisiana, with its courthouse in gretna outside new orleans. he served as a state judge from august 1984 through october 28, 1994, when he was sworn in as a united states district judge for the eastern district of louisiana. starting with article i, let me first describe what the evidence established concerning judge porteous' curie torship kickback scheme with creely and amato. while he was a state court judge, judge porteous started to ask creely for money. at first he asked for small amounts. $50 or $100, money that creely had in his wallet which creely would give him. at some point in the midto late 1980's judge porteous began to request more significant amounts from creely, amounts in the range of $500 or $1,000. creely resisted giving judge porteous that sort of money. as creely testified, i did tell

him i was tired of giving him cash. i felt put upon that he continued to ask. i thought it was an imposition on our friendship. i told him a couple of times, i'm tired of giving you money. i'm tired of you asking for money. judge porteous needed cash and creely wouldn't give it to him. so what did judge porteous do? the evidence demonstrated that judge porteous came up with what was a kickback scheme. judge porteous used the power of his judicial office to assign creely curatorships and then requested and received from creely and his partner amato a portion of the fees received by their law firm for handling those cases. over time judge porteous received approximately $20,000 from creely and amato as a result of this arrangement. let me show you what one of these orders looks like. as you see here, mr. president, let me just say i know that it's difficult for some of the senators to see these exhibits.

at the conclusion of the closing arguments, we will leave all of these exhibits for the senators to examine if that is appropriate with the senate. as you see here, an order signed by judge porteous, assigning robert creely to be the curator for a missing party in a civil case. creely and his law firm received a fixed fee, $200, for handling each of these matters and it was from those fees that judge porteous sought the cash from creely and amato. this corrupt scheme went on for years. the proof of this series of events is evidenced by the interwoven and consistent testimony of creely, amato and judge porteous himself in his testimony under oath before a special committee of the fifth circuit. it is also corroborated by the court records. first creely testified that after judge porteous started assigning the curatorships, judge porteous then started calling over to his office and saying, look, i've been sending

you curators. you know, can you give me the money for the curators? creely testified that even though he previously had resisted giving judge porteous cash, he would now -- he now would give him cash in response to judge porteous' demand because it -- quote -- "wasn't costing him anything." it did not cost creely anything because the money creely gave judge porteous came from the curatorship fees. amato, who split the payments to judge porteous with creely 50-50 corroborated the events. amato testified that creely informed him -- quote -- "that the judge was sending curator cases to him and that he would in turn give money to the judge. amato agreed to go along with the arrangement but told creely that it was -- quote -- "going to turn out bad," which it clearly has. amato testified he knew the curatorship scheme was wrong, but he was not strong enough to say no to what he understood to

be a classic kickback arrangement. creely and amato provided judge porteous cash every few months in response to judge porteous' requests. they gave him cash as opposed to checks drawn on the firm's accounts. according to amato's testimony, this was -- quote -- "to avoid any kind of paper trail." as creely testified, they gave him cash because that's what judge porteous wanted. in most instances creely gave the cash to judge porteous. however, both amato and creely testified that on occasion amato personally gave judge porteous the cash as well. judge porteous confirmed in his testimony under oath before the fifth circuit the essential aspects of this scheme. judge porteous admitted that, one, he received cash from creely. two, at some point in time creely expressed his displeasure with giving judge porteous cash. three, thereafter judge porteous started assigning creely

curatorships. and four, that judge porteous receipt of cash from creely and amato followed his assigning creely curatorships. first judge porteous admitted that he received cash from creely and amato. question: when did you first start getting cash from messrs. amato, creely or their law firm? answer: probably when i was on the state bench. question: and that practice continued into 1994 when you became a federal judge, did it not? i believe the -- answer:i believe that's correct. judge porteous confirmed that there came a time when creely expressed resistance to giving judge porteous money before the curatorship started. question: do you recall, mr. creely refusing to pay you money before the curatorship started? answer: he may have said i needed to get my finances under control. yeah. judge porteous admitted that his

receipt of cash from creely and amato occasionally found his assignment of curatorships to creely. although judge porteous refused to label the arrangement as a kickback, he accepted the description of the arrangement that he had with creely and amato as one where he gave -- quote -- "creely and amato curatorships and was getting cash back." what about the court reports? during its investigation, the house located close to 200 orders signed by judge porteous assigning creely curatorships between approximately 1988 and 1994. all of these orders are in evidence. these curatorships generated fees of nearly $40,000 to the firm. both creely and amato have testified consistently that they gave judge porteous about 50% of the proceeds of the curatorship fees or approximately $20,000 in total. for his part, judge porteous testified at the fifth circuit

that he had -- quote -- "no earthly idea" how much creely and amato gave him, though he did not deny the total could have been more than $10,000. judge porteous testified as follows: question: judge porteous, over the years how much cash have you received from jake amato and bob creely or their law firm? answer:i have no earthly idea. question: it could have been $10,000 or more; isn't that right? answer: again, you're asking me to speculate. i have no idea is all i can tell you. on october 28, 1994, judge porteous was sworn in as a federal district judge. judge porteous was no longer in a position to assign curatorships to creely and amato and he stopped asking them for cash at least for the time being. the fact that judge porteous' requests for cash from creely and amato temporarily came to an end at the same time he stopped assigning them curatorships

constitutes additional powerful evidence that those two actions were inextricably connected and that the cash payments from amato and creely to judge porteous were not merely gifts from the two men separate and apart from the curatorships. let me provide you with a little bit more flavor as to judge porteous' relationship with amato and creely. though i have focused on the cash and curatorships, i should stress that judge porteous depended on the two men to provide for his entertainment and support his lifestyle in other major respects. for example, while judge porteous was a state judge, both amato and creely frequently took judge porteous to lunch at expensive restaurants. amato testified that he took judge porteous to lunch a couple of times a month, amounting to potentially hundreds of lunches, and that judge porteous paid only two or three times out of 100. at these lunches, amato testified that he typically paid for at least two vodka drinks for judge porteous.

similarly, creely also took judge porteous to lunch approximately twice a month. creely testified that when he and judge porteous went to lunch, either creely paid or someone else paid, but not judge porteous. in addition, amato and creely hosted judge porteous on a variety of hunting and fishing trips and arranged those trips, some of which involved air travel to mexico, so that judge porteous never paid. and they gave him cash on at least one other occasion at his request. in the summer of 1994, when judge porteous' son timothy was in washington, d.c. for an externship, judge porteous had his secretary, rhonda danos solicit and receive money from creely and amato to -- quote -- "sponsor timothy's position and pay for his expenses." this is all in the record. now let me turn to judge porteous' relationship with amato and creely after he became a federal judge. on january 16, 1996, judge

porteous, now a federal judge, was assigned a complicated civil action. lifemark hospitals vs. hreupblg enterprises. the case -- involved bankruptcy law, real estate law and contract law. the matter was particularly contentious. t -- in early november 1996, he was to be the trier of law and fact in mid-september six weeks prior to the scheduled trial date, the liljebergs filed a motion to enter the appearances of amato and leonard levinson, another of judge porteous's prendz as their attorneys -- friends. his law firm would receive a percentage of any award. amato estimated in the

liljebergs preveiled in the case, he and his firm would receive between $500,000 and $1 million. if the liljebergs lost, he would receive nothing. lifemark's lead counsel was alarmed when amato was hired by the liljebergs on the eve of trial. even amato testified -- quote -- "i'm sure my relationship with judge porteous had something to do with it." mole was concerned that judge porteous would figure out a way to give an award to liljeberg to benefit amato. mole feared with amato on the other side he would not receive a fair trial. mole did the only thing he could do under the circumstances, he filed a motion asking judge porteous to recuse himself which essentially requested that judge porteous had the case assigned to another judge. mole drafted the motion based on his limited understanding of the facts alleging in substance only -- quote -- "that there was a

close relationship between judge porteous and mr. amato and mr. levinson." that they were known to socialize together. that amato and the judge had been law partiers and the timing of amato's entry into the case just a few weeks prior to trial created suspicion. mole had no idea that amato, along with his partner creely had actually given judge porteous approximately $20,000 pursuant to the curatorship kickback arrangement. nor did he know the other things of value that amato and creely provided to judge porteous. judge porteous held a hearing on mole's motion. judge porteous's statement at the recusal hearing are set forth in detail in our brief and the hearing transcript is in evidence. so i'm not going to repeat all of them here. in sum, judge porteous made a series of deceptive, misleading and lulling statements in which he minimized his relationship of amato, and criticized mole for

filing an unfounded motion. in essence, judge porteous portrayed his relationship with amato as simply the same sort of unexceptional relationship that he would have had with any member of the bar. for example, judge porteous stated -- quote -- "yes, mr. amato and mr. levinson are friends of mine. have i ever been to either of their house -- have i ever been to either one of them's house? the answer is a defensive no. have i gone to lunch with them? the answer is a definitive yes. the question -- have i been going to lunch with all members of the bar? the answer is yes. even that is misleading because judge porteous had, in fact, accepted hundreds of meals at expensive restaurants from amato and his partner creely. but most significantly judge porteous made no mention whatsoever of what he knew was really the issue, that is, that he had received approximately $20,000 in cash

from amato's law firm, money that he knew came from amato as well as creely. when mole at great disadvantage made a reference to the fact that amato and levinson had contributed to judge porteous's campaigns, judge porteous went on the offense. "well, luckily i didn't have any campaigns, so i'm interested to find out how you know that. i never had any campaigns, counsel. i have never had an opponent." he went on to say the first time i ran, 1984, i think is the only time they gave me money. that blanket statement was, of course, a deliberate falsehood because amato and his firm had given judge porteous approximately $20,000 in cash pursuant to the kickback scheme. judge porteous concluded with the self-serving comment in which he promises to notify counsel if he has any question that he should recuse himself

and concluded, "i don't think a well-informed individual can question my impartiality in this case." so, in effect, what you have is judge porteous, who knows the facts, just not disclosing it, completely deseefing lifemark with his relationship with amato and judge porteous. announcing to the world how honest he was complete with a mock indignation. judge porteous denied the recusal motion after the argument in open court on october 16, 1996. lifemark appealed to the fifth circuit seeking to overturn judge porteous's order. however, because of the false record created by judge porteous at the recusal hearing, that appeal was denied. trial was held without a jury in the summer of 1997 and judge porteous took the case under advisement. while the case was pending, his -- was pending his decision, judge porteous continued to solicit and accept cash and

things of value from amato and creely. in may, 19199 -- 1999 while judge porteous had not yet ruled on the case, he went to las vegas, nevada with several friends, including creely for his son's bachelor party. creely paid for judg judge ports hotel room and $500 for a portion of timothy porteous' bachelor party dinner. these payments amounted to more than $4,000. after the dinner creely accompanied judge porteous and others to a strip club where creely gave a club employee $200 to pay for a lap dance for judge porteous and a courthouse employee. judge porteous admitted in his fifth circuit testimony that creely paid for his hotel room and a portion of the dinner. in june of 1999 while judge porteous still had the liljeberg case under consideration, the

two men took a nighttime fishing trip together. on the fishing trip judge porteous told amato he need cash for his son's wedding and requested that amato give him approximately $2,000. excuse me. in response to that request amato agreed to give porteous the money he solicited. amato supplied $1,000 and obtained $1,000 from creely and gave porteous $2,000 in cash in an envelope. as amato later testified, it was -- quote -- "a decision i'll regret until the day i die." as a senate impeachment committee report found, the $2,000 was picked up by porteous' secretary. when she was asked what was in the envelope, the secretary rolled her eyes. in response dano said, never mind, i don't want to know.

like much of the other evidence, the fact that judge porteous solicited and received money from amato in 1999 while the liljeberg case was pending is not contested. here's how judge porteous testified under oath before the fifth circuit. question: whether or not you recall asking mr. amato for money during the fishing trip, do you recall getting an envelope with $2,000 shortly thereafter? answer: yeah, something seems to suggest that there may have been an envelope. i don't remember the size of the envelope, how i got the envelope or anything about it. question: wait a second. is it the nature of the envelope you're disputing? answer: no, money was received in an envelope. question: and had a cash in it? answer: yes it was from keel wily. answer, yes. question: and would you dispute that amount was $2,000? answer: i don't have any basis to dispute it.

at the time he made the request, judge porteous had significant financial lerchl over amat yoavment and his solicitation of cash had a shackdown quality to it. amato bluntly acknowledged one of the factors that impacted his decision to give judge porteous the cash is that amato stood to make a lot of money in connection with the liljeberg case then pending in front of the judge and that amato was not going to -- quote -- "take the risk of not giving judge porteous the cash the judge solicited." judge porteous solicitation of cash from amato demonstrates judge porteous egregious misuse of his judicial power to enrich himself. a judge who engages in such conduct is unfit to continue to hold the office of united states district judge. in addition, amato and creely continued to take judge porteous out to expensive lunches on a regular basis and paid

over $1,000 for a party in honor of his fifth year on the bench. mole knew nothing of judge porteous's relationship with amato and creely while the case was pending. specifically judge porteous did not inform mole of the meals, the payments of expenses in las vegas or the $2,000 cash payment. on april 26, 2000, judge porteous issued a written opinion in the liljeberg case. at that time his financial situation was desperate and he was just weeks away from meeting with a bankruptcy attorney. judge porteous who had take judicial actions in the past with amato and creely to enrich himself had powerful financial moat toifs curry their favor and reward them and encourage in the future. thus it is not surprising that judge porteous ruled in all major aspects in favor of amato's clients, the liljebergs. counsel for lifemark testified that this was a -- quote -- "resounding loss for lifemark."

and lifemark appealed judge porteous's decision to the fifth circuit court of appeals. in august of 2002, the fifth circuit reversed judge porteous's decision in most significant aspects. in doing so the fifth circuit characterized various aspects of judge porteous's ruling as inexplicable. constructed entirely out of whole cloth, absurd, close to being nonsensical, and not supported by law. after the case was reversed, the fifth circuit by the fifth circuit and sent back to judge porteous, the parties settled because lifemark understandably did not want to go back before judge porteous. article ii, judge porteous' relationship with bail monthman louis -- bondsman marcotte. first, let me briefly describe how the bail bonds business worked in jefferson parish.

from the financial perspective of bail bondsman louis marcotte, he would make no money if the judge set bond so high that the prisoner or family do not afford to pay the premium or if a judge set bond so low that the premium was an insignificant sum. what marcotte really wanted was for a bond to be set at the maximum amount for which the prisoner could afford to pay marcotte the premium which was typically 10% of the bond amount. and that's how he maximized profits. he would interview the prisoner, know what the prisoner could afford, and attempt to have bonds set at that profit maximizing amount. if a prisoner or his family could scrape together $5,000, marcotte would want a judge to set bail at 10 times that amount or $50,000 even if a lower amount would have been appropriate. now in the gretna, louisiana courthouse, where judge porteous

sat, bail bondsman like marcotte dealt directly with the judges and magistrates to have them set bonds. prosecutors and defense attorneys were virtually never involved. it is against this background that judge porteous's relationship with the marcottes can be understood. marcotte needed a judge to be receptive to his bond request to reduce bonds when they were too high and set them at higher amounts if they were going to be set too low. as we know from judge porteous's relationship with amato and creely, judge porteous needed and welcomed financial support from whomever would provide it and was more than willing to use his judicial power to obtain it. judge porteous and marcotte each understood what the other could do for him and they formed a mutually beneficial corrupt relationship. first, as to what the marcottes gave judge porteous. the evidence established that the marcottes frequently took judge porteous to high-end restaurants for lunch, paying

for meals and drinks, over time these lunches may have occurred as much as twice per week. these lunches seem to have started in or about 1992 and are up corroborated by several witnesses. the marcottes ledge judge porteous invite whoever he wanted, especially other judges. and judg judge porteous help the marcottes establish their legitimacy. the marcottes paid for car repairs and routine car maintenance. on occasion it was substantial and included buying new tires or engine and transmission repairs or installing a new radio in addition marcotte employee would pick up judge porteous's car to wash it and fill it with gas. he testified that he gave him his security code to go into the judge's parking lot at the courthouse. judge porteous would leave the key under the mat. wallace would pick up the car

and return it wash, gas, and kaishly with a ticket. that the car kots paid for judge porteous's car repairs. in addition, marcotte also paid for home repairs for judge porteous when an 0-foot section of fence had to be replaced. testimony at trial from marcotte employees duhan and wallace established the project took three days to complete. the marcottes also paid for a trip to las vegas for judge porteous. on this trip, judge porteous' secretary, rhonda danos, had paid for the judge's transportation up front. the evidence is clear that lori marcotte later paid for this trip by giving danos cash in judge porteous' chambers. both louis marcotte and lori marcotte testified that the payment was in cash to conceal the fact that the marcottes had paid for this trip. there is no pretense that this was some sort of legitimate act of generosity. it was obviously improper and

hidden by the parties for that reason. in turn, judge porteous willingly became marcotte's go-to judge for setting bonds. marcotte went directly to judge porteous with recommended bond amounts, bond amounts that would maximize their income. judge porteous was receptive to them and signed countless bonds at their request. they would go to his chambers and tell him how much the prisoner could afford as part of the discussions where they requested that he set bail. as senator risch observed during the trial, it was really the poorest families who were hurt by judge porteous' relationship with marcotte. an inhairnt aspect of their -- an inherent aspect of their corrupt dealings was that bond was set at a higher amount than might have been set by a neutral judge who was not on the take. and the opposite is also true. the public interest was potentially compromised when judge porteous reduced a bond at the marcottes' request which

thereby led to the release of someone who otherwise should have been confined. the marcotte-porteous relationship perverted what should have been a neutral, detached process. in addition to setting bonds as requested, judge porteous took other judicial acts of significance for the marcottes. in 1993 at louis marcotte's request, judge porteous expunged the felony conviction of a marcotte employee, jeff duhan so duhan could obtain his bail bondsman license. in 1994, again at marcotte's request, judge porteous set aside the conviction of another marcotte employee, aubrey wallace. this took place during judge porteous' last days on the state bench and evidences the extent to which judge porteous was beholden to the marcottes. as i will get into in a few moments, judge porteous timed this judicial action to occur after the senate's confirmation of him for the federal judgeship so as to conceal his corrupt

relationship with the marcottes and thereby not jeopardize his lifetime appointment. there was -- there was one more thing that marcotte did for judge porteous as a part of their corrupt relationship when judge porteous was a state judge. in the summer of 1994 when judge porteous was undergoing his background check, the f.b.i. interviewed marcotte. in that interview, marcotte lied for judge porteous on three specific points. first, he stated that judge porteous would -- quote -- "have a beer or two at lunch" when, in fact, marcotte knew that judge porteous was a heavy vodka drink we are an alcohol problem who would on occasion have five or six drinks. second, marcotte stated that he had no knowledge of judge porteous' financial circumstances when, in fact, he knew that judge porteous struggled financially. finally and most importantly, when interviewed by the f.b.i., marcotte denied that there was anything in judge porteous'

background that could subject the judge to coercion, blackmail or leverage. this was also not true because marcotte knew that he had a corrupt relationship with judge porteous and that he himself had leverage over judge porteous because of that relationship. in fact, marcotte testified bluntly in september before the senate impeachment trial committee that he could have, quote -- "destroyed judge porteous had he chosen to do so." marcotte told the f.b.i. that he believed judge porteous wanted him to -- told the f.b.i. what he believed judge porteous wanted him to say. in effect, marcotte acted as judge porteous' agent in lying to the f.b.i. marcotte then reported back to judge porteous as to the contents of the interviews and told judge porteous he gave him a clean bill of health. indeed, there can be little pretense that the judge porteous-louis marcotte relationship was anything other than a corrupt business relationship. they were brought together by

their financial needs. marcotte was clear that the only reason he took judge porteous to lunch, took him to las vegas, fixed his cars or fixed his house was because the judge was assisting them in setting bonds and using the prestige of his office to help them with other judges. marcotte testified -- quote -- "judge porteous would do more when we would do more for him." after judge porteous became a federal judge, he could no longer set bonds for the marcottes. nonetheless, the marcottes would continue to take judge porteous to lunch, particularly when they sought to recruit other state judicial officers to take his place in a similar corrupt scheme or to impress business executives. louis marcotte explained that judge porteous -- quote -- "brought strength to the table table" -- end quote -- by his strength and assistance.

marcotte testified it would make people respect me because, you know, i'm sitting with a federal judge, end quote. as lori marcotte described -- quote -- "state court judges would view us as trusted people because we were hanging around with a federal judge." thus judge porteous used the power and prestige of his office as a federal judge to help the marcottes expand their corrupt influence in the gretna courthouse by vouching for their honesty, vouching for their practices and helping to recruit a successor. our post trial brief details several instances of judge porteous providing assistance to the marcottes as a federal judge. let me talk about one of those instances in particular. in 1999 at louis marcotte's request, judge porteous spoke to newly elected state judge ronald bodenheimer. prior to that conversation, bodenheimer stayed away from louis marcotte because he had concerns about marcotte's character and believed that marcotte was doing drugs. during his conversation with bodenheimer, judge porteous,

then a united states district court judge, vouched for louis marcotte's integrity. bodenheimer took judge porteous' statements seriously, and as a result of that conversation, bodenheimer began to set bonds for the marcottes. the marcottes and bodenheimer developed a relationship that took on the characteristics of the relationship that had previously existed between judge porteous and the marcottes. the marcottes began providing bodenheimer meals, house repairs and a trip to the casino. boden himmer in return began to set bonds that would maximize profits for the marcottes. bodenheimer was eventually criminally prosecuted, pleaded guilty and was sentenced to prison on a federal corruption count arising from his corrupt relationship with the marcottes. let me now get to one final act of the marcotte-porteous relationship. in the early 2000's, the f.b.i. was investigating state court judges including bodenheimer for

corrupt misconduct arising out of the relationship with the marcottes. on april 17, 2003, louis marcotte signed an affidavit prepared by judge porteous' attorney in which he falsely denied that he and judge porteous had a corrupt relationship. i mention this 2003 affidavit for two reasons. first, this 2003 affidavit reflects that the corrupt relationship between the marcottes and judge porteous continued well into his tenure as a federal judge. second, just as marcotte's 1994 false statements to the f.b.i. helped obstruct the background check investigation, marcotte's 2003 false affidavit prepared by judge porteous' attorney was a part of an effort to obstruct a criminal investigation. in both instances, marcotte lied to the f.b.i. to assist judge porteous by concealing their corrupt relationship. it reflects how even in 2003,

nine years after he took the federal bench, judge porteous was compromised by his relationship with louis marcotte. in march, 2004, louis marcotte pleaded guilty to a racketeering conspiracy charge involving his corrupt relationship with state judges. he was sentenced to 38 years in prison. his sister lori marcotte pleaded guilty at the same time as her brother and was sentenced to three years probation, including six months of home detention. in his house testimony, his deposition and at trial, louis marcotte repeatedly described judge porteous' overall impact on the marcottes' business as even more significant than two other state judges who were federally prosecuted and were sentenced to prison. question: mr. marcotte, you testified in response to mr. turley that you did things for lots of judges. answer, yes, i did. question: and some of those judges went to prison, did they not?

answer: yes, they did. question: of all the judges that you did things for, who was the most important judge to you, ever? answer: thomas porteous. now let me turn to article iii involving judge porteous' bankruptcy while he was on the federal bench. the evidence demonstrated that throughout the 1990's and into 2001, judge porteous' financial condition deteriorated, largely due to gambling at casinos to the point that by march, 2001, when he filed for bankruptcy, he had over $190,000 in credit card debt. his credit cards and bank statements in the years preceding his bankruptcy reflect tens of thousands of dollars in cash withdrawals at casinos. before discussing how judge porteous deceived the bankruptcy court, i want to stress that for the years leading up to his bankruptcy, judge porteous had concealed his debts in the financial statements that he filed with the courts. let me show you an example.

this is a little detailed, so let me walk you through it. what you see here is the portion of judge porteous' 1999 financial disclosure report in which he was required to disclose his year-end liabilities. judge porteous reported two credit cards with the maximum liability being $15,000 each, code j, for a total maximum liability of $30,000. in fact, he had five credit cards with amounts -- with debts amounting to over $100,000. these should have been reported on the form in the liabilities box as code k, debts over over $15,000. this form was blatantly false. judge porteous filed false financial statements that failed to honestly disclose the extent of his credit card debts for each of the four years 1996-1999. those forms are in evidence. even though judge porteous has not been charged in any article of filing false financial reports, these reports constitute powerful evidence as to judge porteous' intent.

these false financial reports make it clear that the false statements in bankruptcy were part of a conscious chorus of conduct involving his concealment of financial activities and not some set of innocent mistakes or oversights as claimed by counsel. in 2000, judge porteous met with bankruptcy attorney claude lightfoot about his financial predicament. the evidence demonstrates that judge porteous did not tell lightfoot at that time or indeed at any time that he gambled. the two men decided that lightfoot would attempt to work out judge porteous' debts owed to his creditors, and then if that failed, then judge porteous would consider filing for bankruptcy. lightfoot's attempts at a workout failed and in february of 2001, lightfoot and judge porteous commenced preparing for a chapter 13 bankruptcy. prior to filing for bankruptcy, judge porteous, in consultation with lightfoot, agreed that he would file his bankruptcy petition under a false name.

to further this plan, judge porteous personally obtained a post office box so that his initial petition would have neither his correct name nor a readily identifiable address. if you look at this exhibit, you will see that ultimately on march 28, 2001, judge porteous, a sitting federal judge, filed for bankruptcy under the false name "g.t.ortous," and with a post office box that judge porteous had obtained on march 23, 2001, listed as his address. judge porteous signed his petition twice, once under the representation -- quote -- "i declare under the penalty of perjury that the information provided in this petition is true and correct." end quote. the other over the typed name, "g.t.ortous." on april 9, 2001, judge porteous submitted a statement of financial affairs and numerous bankruptcy schedules. this time, they were filed under his true name.

however, they were false in numerous other ways, all reflecting his desire to conceal assets and gambling activities from the bankruptcy court and his creditors. while i am not going to go through all his false statements during the bankruptcy, they are detailed in our post-trial brief, i want to at least point out some to you. he falsely failed to disclose that he had filed for a tax refund, claiming $4,143.72 refund even though the bankruptcy form specifically inquired as to whether he had filed for a tax refund. as you see, this chart sets forth his tax return, dated march 23, 2001, five days before he filed for bankruptcy. it also shows the place on the form where he was required to list any anticipated tax refund. the copy here is not as clear as we would like, but question 17 required judge porteous to disclose -- quote -- "other lick way indicted debts owing debtor, including tax refunds."

as you see, the box "none" is checked. judge porteous never disclosed the fact of this refund, not to his attorney, not to the creditors, and not to the bankruptcy court. instead, he kept it secret and the money went right into his pocket. he deliberately failed to disclose that he had gambling losses within the prior year, even though the form specifically asked that question. in fact, judge porteous has admitted before the fifth circuit that he had gambling losses. in the days immediately prior to filing for bankruptcy, paid casino debts that he owed them in order to avoid listing those casinos as unsecured creditors. additionally, he filed record those preferred payments to creditors in the bankruptcy forms, which required their disclosure, and failed to tell his attorney about them. thus, casinos, to which judge porteous owed money in march of 2001, received a hundred cents on the dollar while other creditors received but a fraction of that amount. judge porteous favored casinos

over other creditors because he did not want to jeopardize his ability to take out credit and gamble at the casinos while in bankruptcy. he had his secretary pay off one of his wife's credit cards five days prior to filing for bankruptcy. judge porteous then reimbursed his secretary and failed to disclose this preferred payment to the credit card company on his schedule as that he filed under oath with the court. he reported his account balance in his checking account as $100 when the day fryer filing for bankruptcy -- prior to filing for bankruptcy, had foftd $2,000 -- deposited $2,000 into the account. he deliberately failed to disclose a fidelity money market account that he regularly used in the past to pay gambling debts. this particular nondisclosure demonstrates judge porteous' determination to have a secret account available with which to pay gambling debts while in bankruptcy. this nondisclosure clearly was not inadvertent since the evidence is clear that he wrote a check on that account on march 27, 2001, the day prior to

filing for bankruptcy. the single organizing principle that arranges this pattern of false statements is judge porteous' desire to conceal assets and to conceal his gambling so that he could gamble while in bankruptcy without interference from the court or the creditors or even his lawyer. at a hearing of creditors on may 9, 2001, judge porteous under oath testified that the schedules were accurate. that statement, like so many of judge porteous' other statements under oath, was false. at that hearing, the bankruptcy trustee also informed judge porteous that he was on a cash basis going forward. at the end of june 2001, bankruptcy judge william greendyke issued an order approving the chapter 13 plan specifically directing judge porteous not to incur new debt without the permission of the court. notwithstanding judge greendyke's order, judge porteous did incur additional debt without the permission of the court. he applied for and used a credit

card. here is a blowup that includes a copy of judge porteous' application for a credit card and the statement showing its use in september of 2001, in violation of the order of the court. more particularly, judge porteous continued to borrow from the casinos without the court's permission. this chart, which was used at trial, lists 42 times that he took out debt at casinos to gamble in the first of the three years he was in bankruptcy. further, as judge porteous had planned, in some instances, he paid these casino debts through the fidelity money market account that he concealed. here at the top of this blowup is a check he wrote on the concealed fidelity money market in the amount of $1,800 to the treasure chest casino on november of 2001. below it is a check in the amount of $1,300 to grand casino

gulfport, also drawn on the undisclosed money market account in july of 2002. both of these checks repaid the outstanding debts to the casinos. in short, he engaged in a pattern of deceitful activity designed to frustrate and confound the bankruptcy process. the harm wrought by judge porteous' conduct in bankruptcy is really incalculable. the bankruptcy process depends totally on the honesty and candor of debtors. the trustee does not dispassion investigators to check on a debtor's sworn representations. judge porteous' display of contempt for the bankruptcy court is little more than a display of contempt for his own judicial office. a federal judge who, in fact, heard bankruptcy appeals in his court should be expected to uphold the highest standards of honesty. it is inexcusable that judge porteous manipulated this process for his own benefit. let me now discuss article iv, and for that i need to return to the summer of 1994.

let me set the stage. at that time, while judge porteous was being considered for a federal judgeship, he was engaging in two corrupt schemes. first, the curatorship kickback scheme with creely and amato that i previously described in connection with article i, and, second, the corrupt relationship with the marcottes that i described in connection with article ii. judge porteous knew that if the white house and the senate found out about his relationships with either creely and amato or the marcottes, he would never be nominated, let alone confirmed. in the course of the background investigation and during the confirmation process, judge porteous was asked questions on four separate occasions that, if he were to answer the questions truthfully and candidly, required him to disclose his relationships with creely and amato and the marcottes. on each instance, judge porteous lied. because of those four -- because those four statements are at the heart of article iv, let me show you exactly what judge porteous

was asked and exactly what he answered. first, at sometime prior to july of 1994, judge porteous filled out a form referred to as the supplement to the sf-86. on that form is a question that goes to the very heart of the issue associated with the background process. on that form, judge porteous was asked -- question -- "is there anything in your personal life that could be used by someone to coerce or blackmail you, is there anything in your life that could cause an embarrassment to you or to the president if publicly known? if so, please provide full details." so which judge porteous answered, "no." judge porteous signed that document under warnings of criminal penalties for making false statements. this statement was a lie. on july 6 and july 8, 1994, judge porteous was personally interviewed by an f.b.i. agent as a part of the background check process. judge porteous was asked by the agent the same sort of questions

i discussed in connection with the sf-86. his answers were incorporated in a memorandum of the f.b.i. agent that summarized the interview. let me show you the relevant portions of the memorandum. judge porteous was recorded as saying that he was not concealing any activity or conduct that could be used to influence, pressure, coerce, or compromise him in any way or that would impact negatively on the candidate's character, reputation, judgment, or discretion. these statements were also a l lie. after that interview, the f.b.i. in new orleans sent the background check to f.b.i. headquarters in washington, d.c., for their review. f.b.i. headquarters directed the agents to interview judge porteous a second time about a very particular allegation that the f.b.i. had received in 1993 that judge porteous had taken a bribe from an attorney to reduce the bond for an individual who'd been arrested.

so on august 18, 1994, the f.b.i. conducted a second in-person interview with judge porteous. this time probing possible illegal conduct on his part in connection with bond setting. again, the f.b.i. write-up of the interview records judge porteous as stating -- quote -- "that he was unaware of anything in his background that might be the basis of attempted influen influence, pressure, coercion, or compromise and/or would impact negatively on his character, reputation, judgment, or discretion." and again he lied. finally, after he was nominated, the united states senate committee on the judiciary sent judge porteous a questionnaire for judicial nominees. again, i'm showing you the document. judge porteous was asked the following question and gave the following answer. question -- "please advise the committee of any unfavorable information that may effect your nomination. answer: to the best of my knowledge, i do not know of any unfavorable information that may

affect my nomination." the signature block is in the form of an affidavit that the information provided in the document is true and accurate. judge porteous lied for a fourth time. the questions judge porteous asked are clear and unambiguous. in each of the four instances, the questions called for judge porteous to disclose his relationship with amato and creely and the marcottes. there is additional evidence that suggests judge porteous would well -- would have well understood the reach of those questions. first, the second of his two f.b.i. interviews addressed judge porteous' bond-setting practices. it's hard to imagine that he could have been put on more specific notice than that his relationship with marcotte and his conduct in setting bonds was relevant and should be disclosed. second, judge porteous' understanding of the materiality of his relationship with marcotte and his intent to conceal it is further evidenced by his statements and conduct

associated with setting aside of aubrey wallace's felony conviction, which i referenced earlier. as i mentioned, marcotte had an employee named aubrey wallace who had helped take care of judge porteous' cars and also fixed his house. at around the time of his confirmation, marcotte went to judge porteous and asked him to set aside wallace's burglary conviction, to take the first step in getting rid of his felony convictions so that wallace would ultimately be able to obtain a bail bonds license. judge porteous agreed to do it but informed marcotte that he would do so only after he was confirmed by the senate because he did not want to jeopardize his -- quote -- "lifetime appointment." when asked to describe judge porteous' response to his request, marcotte testified -- answer -- "he kind of put me off and put me off and he said, look, louis, i'm not going to let anything stand in the way of me being confirmed and my lifetime appointment.

so after that's done, i will do it." marcotte went on to explain the nature of judge porteous' concern -- quote -- "if the government would have found out some of the things that he was doing with me, it would probably keep him from getting his appointment." senator mccaskill specifically asked marcotte as to whether judge porteous used the lifetime appointment phrase. in response, marcotte's answer was clear. quote -- "that was the words of judge porteous." in substance, judge porteous said that he would set aside wallace's conviction but that he was going to hide it from the senate. it is hard to conceive of a clearer, more explicit expression of intent to deceive the senate. judge porteous' actions corroborate marcotte's recollection of the conversation. he was confirmed by the senate on october 7, 1994, and set aside wallace's conviction, as he said he would, after that, on october 14, 1994.

the timing of the wallace set-aside confirms that judge porteous calculated and plotted to conceal material facts concerning his relationship with louis marcotte from you, the united states senate. the procedural history of wallace's case is discussed in our post-trial brief, but the salient fact is that judge porteous could have set aside the conviction if he chose to do so weeks prior to his confirmation. absolutely nothing in wallace's case occurred that explains his delay in waiting until after the confirmation. the only event of significance that explains the timing is that judge porteous was confirmed in the interim. moreover, judge porteous' willingness to set aside wallace's conviction at marcotte's request constitutes proof positive that judge porteous was, in fact, subject to coercion, leverage, and compromise, the very fact as to which judge porteous was requested and which judge porteous denied. because of the fraud committed

by judge porteous on the f.b.i. and the senate, judge porteous was, in fact, confirmed and was sworn in on october 28, 1994. he has been a federal judge, enjoying the fruits of his deceit and the power of the position since that date. in conclusion, the house has proved each of the four articles of impeachment. the evidence demonstrates that judge porteous is dishonest and corrupt and does not belong on the federal bench. he has signed false financial forms, false questionnaires and even signed documents under a false name under penalty of perjury. he has engaged in corrupt schemes with attorneys and bail bondsmen. he has betrayed his oath in handling a case dishonestly and with partiality and favor, characterized by making false statements at a hearing concerning his financial relationship with one of the attorneys and then soliciting cash from that attorney while the case awaited judge porteous' decision. he has brought disgrace and

disrebuke to the federal bench. the evidence demonstrates he has committed high crimes and misdemeanors, and the house requests that you find him guilty on each of the four counts and remove him from an office he is not fit to occupy. thank you for your time and attention. we reserve the balance of our time. the president pro tempore: thank you very much. professor turley, you may proceed on behalf of the judge. mr. turley: thank you, mr. president. members of the senate, for those who are not present this morning, i am jonathan turley. i am the chicago professor of public interest law at george washington university and counsel to judge g. thomas porteous, a judge on the district court in the eastern district of louisiana. joining me again at counsel's table are my colleagues from the law firm of brian cave, daniel schwartz, p.j.meitl and dan

o'connor. sitting here listening to my esteemed opposing counsel, one is easily put in mind of another trial held almost 220 years ago almost to this very day. in a case that proved to be one of the turning points in american law, eight british soldiers were accused of murder in what americans called the boston massacre and what the english called the boston riot. columnists demanded that the soldiers be executed and everyone came to the trial expecting less of a trial as much as a hanging. adams himself saw the case differently. in fact john adams saw not just another case, but the very cause for which he was already fighting, the creation of a new nation based on due process and principles of justice.

as in today's case, many of the facts were not in dispute in 1770. it was clear that the british soldiers fired into the crowd, but adams stopped the jury and challenged them to consider two questions: one, whether the soldiers had acted with required intent and malice and, two, whether the requested punishment -- death -- fit the crime. it was also one of the earliest uses of the reasonable doubt standard ever recorded in our country. proof and proportionality became the touchstone of that case and later cases in the republic that adams helped bring into existence. in words that would echo through the ages, adams warned the jury -- quote -- "whatever may be our

wishes, our inclinations or the dictates of our passions, they cannot alter the state of facts and evidence. the law will not bend to uncertain wishes, imagination, or wanton tempers of men." when the framers turned to the constitution, they sought to protect the judiciary from wanton tempers and imagined offenses. in cases of impeachment, the framers expressed fears that congress would yield to passions over proof in the removal of federal judges. james madison, george mason, and others carefully crafted the standard of impeachment to protect the independent judiciary, and madison said expressly that they wanted to avoid standards -- quote -- "so vague as to be the equivalent of tenure during the pleasure of the senate."

that's what they wanted to avoid. they rejected corruption because they knew the term "corruption" could be used to mean most anything, and for that reason, that term was adopted by the house in this case. it hasn't changed. framers explicitly debated and rejected this vague standard of maladministration and instead demanded that a federal judge could not be removed absent proof of treason, bribery, or other high crimes and misdemeanors. applying that standard, this congress has refused to remove judges, not because they agreed with their action. every judge whose cases were brought before in esteemed body were worthy of condemnation. they had few friends. but this body drew a distinction between judges who've done wrong and judges who have committed

removable offenses. i'd like to tell you about the man that is on trial today, g. thomas porteous jr. he has spent virtually his entire life as a public servant. served as an assistant district attorney, a state judge, and then a federal judge. he served a total of 26 years. the past 16 as a federal judge. when asked, all the witnesses in this case, without exception, described him as one of the best judges in louisiana. as i will discuss later, however, his skills as a judge do not excuse his failings as a person. to the contrary, he is not condeash has not contested many of the facts this this case and ultimately accepted severe discipline for the poor decisions that he made. he's here for you to judge now, to judge him. but he is not the caricature that was described by the house.

indeed, i don't know how the man described by the house avoided a criminal charge. after all, the department of justice got waivers to look into all of these crimes. they investigated him and many other judges through wrinkled robes. when i was sitting here, i was thinking, my lord, how on earth could he avoid a criminal charge? and the reason is because the department of justice are professionals. they look for crimes, and the they didn't find a crime that could be proven at trial, any crime, great or smawcialtion against this -- great or small, against this judge. his son, thim thee, in the hearing expressed the toll this has really cost him and his family, ranging from the defnlg his wife, the loss of his home in katrina. one way or the other, this matter is going to come to closure now. he will either be convicted or he will retire in a matter of months, as he's already promised.

what is clear is either way thomas porteous will not return to the bench. he has, however, remained silent for many months, as newspapers and commentators have said grossly false things about his case and about his character. he waited for this moment for his defense to be presented, as had so many defenses in his courtroom, for impartial judgment and he gave impartial judgments. even the house's own core witnesses said that judge porteous gave them a fair hearing, gave everyone a fair hearing. you can disagree with actions that he took, but he don't have to turn him into a grotesque caricature. he's not. he may have been many things in the eyes of others, but he was never corrupt, and he loved being a federal judge, and despite his failings, he never

compromised his court, and he never broke the oath he took as a federal judge in october 1994. that may seem a precious distinction to some, but he's here to fight for that legacy. he has accepted his failings, but he will not accept that. this case is not, however, just about thomas porteous. all impeachments speak to all judges. this case presents articles of impeachment that are novel and they are dangerous. we discussed some of those issues this morning. and of course the constitution puts that incredible burden on you. it requires you to ignore the dictates of passion and wanton tempers described by john adassments you must decide when drg all the evidence whether the actions that were taken during this case rise to the level of treason, bribery, or other high

crimes and misdemeanors. i would like to turn to something that senator durbin had asked about, which is the standard of proof. as we mentioned, in the past many have cited beyond a reasonable doubt as the most obvious standard for impeachments because impeachment has many criminal terms that are incorporated and also many impeachments are crafted on articles taken directly from prior criminal cases. we also noted and stressed that the members of this body really have two determinations to make. first, you must find that these facts occurred, and second you must find that those facts that did occur to your satisfaction rise to the level of a removable offense. it's the first part of that determination that's difficult in this case because as we noted, this is the first modern impeachment that has come to

this body without a prior trial. this judge has never been allowed review from a judge. he's never challenged athe things that have been said against him. indeed, most of the things that you just heard wouldn't be allowed in a federal court, and we challenge the factual accuracy, as you will see. but that's part of the value of having criminal charges brought, because when usually this body has looked at a case, it has then siphoned through that filter of process and fairness. each senator does have to establish what he or she will use a a standard of proof, but i have to say, i do not agree with mr. schiff when he says it's just up to you; whatever you decide is enough. where i disagree with mr. schiff from this morning is where we can distinguish between "could"

and "should." there's no question. you can adopt any standard. the question is whether you should. obviously the framers didn't want people just to take an arbitrary gut check on facts, particularly when there's been no criminal trial. they expected something more from you. and what is expected is that you have -- you apply some consistentcognizable standard, and we have talked about that standard applied in the harks which is clear and convincing. this body in the past has talked about a strict standard. indeed, senator allen specter, who was vice-chair at an earlier time, stated the following to his clerks and i would, as amended, it to you: "where autograph judge up for removal, the issue of judicial independence requires a very strict standard. this is not a question of

whether you would confirm him if he were before us today. it is not a question of whether we feel comfortable in going before him, but it is a question of whether we are going to oust him from office that comes into play." what i believe senator specter was saying is that you do have an obligation to apply some objective standards, because this is a legal proceeding. it might not be a criminal case, but you are signature as the world's most unique jury and judges. in this case, the fifth circuit itself did not consider the allegations in article ii and article iv. the reason is simple. as the five judges i mentioned earlier wrote, "congress lacks jurisdiction to impeach judge porteous for any misconduct

prior to his appointment as a federal judge." plain and simple. the federal judges in the fifth circuit wrote a detailed 49-page opinion on the evidence in this case. those judges declared the following: "this is not one of those rare and egregious cases presenting the possibility of an impeachable offense against the nation." they didn't approve of the decisions made, but they drew a line, and this fell far on the other side of an impeachable offense. those judges, which included appellate and district judges, said that the evidence here does not support a finding that judge porteous abused or violated the federal constitutional judicial power entruforted to him. instead, the evidence shows that in one case he allowed the appearance of serious embryo priorities but that he did not

commit an actual abuse in violation of constitutional power entrusted to him. these appearance controversies are routine in court. they are used here, however, as the basis for removal to iep h. wipe away centuries of precedent. perhaps for that reason, the house managers are quoted in the media as encourage the adoption of a new standard, to treat the impeachment process as merely an employment termination case. they would literally have this body adopt the standard that madison rejected for judges simply to serve at the pleasure of the senate, like at-will employees. unfortunately, this case proves one thing: irk the old military adage that if all you have is a hammer, every problem looks like a nail. it's not enough that judge porteous accepted sanctions from his court, unprecedented

sanctions. it's not enough that he announced his resignation in a malt of months from the -- in a matter of months from the bench. it is not enough that no one has ever been removed for pre-federal conduct. the house demanded removal. let's look at the base sees for removal and let's turn to article one. in on i, the house impeached judge porteous on the theory that he deprived the public and litigants of his honest services, as we discussed this morning. we discussed the unique problem of the fact that it was crafted around the theory that the supreme court rejected. it was a bad bet. now, you'll notice that in the opening statements again today, both mr. schiff and mr. goodlatte kept on bringing up again kickbacks. i actually counted up to 20, and then i stopped.

i pose the question to you. i don't know how many times you counted the word "kickbacks," but i ask you to look at the articles and see how many times it is actually mentioned in the articles of impeachment. and that number would be zero. they allege a corrupt conceal and then they came to you and said, you know what? this is going to be about kickbacks. the reason that the framers rejected corruption is precisely because what is occurring right now in front of you in the well of the senate. corruption can mean anything. mr. schiff could have just stood up and said you know what this is? this is mail fraud. or he could have said actually this is conspiracy. he could have said anything that constitutes corruption and rewrite the article here. not. not fulfilling the will of the house, but fulfilling what is the passing will of the managers of the house. that is a violation of the

process that the framers created. in fact, we now hear five references to the signing of financial statements that were inaccurate. i suggest the members look at the articles. how many times is that mentioned in the articles? zero. but when you use corruption as a term, you just go to the well of the senate and say that's what this is all about. and what that does for defense attorneys like myself and my colleagues is we just stand here and try to keep track of what it is the crime we're supposed to be defending against. it could be anything under the criminal code, anything under the criminal code could form corruption. and now it's financial records. that's why the house has the sole responsibility to articulate those articles. and when mr. schiff says they have a lot of discretion, they do. and when they use that discretion poorly, articles of impeachment get rejected. and that's what this body has said repeatedly in history.

you can't bring to us articles that present any possible crime, a crime du jour, and that's what you're seeing today. notably in article i there is one fact that literally all the house witnesses agreed on. judge porteous was never bribed. but more importantly, judge porteous was not bribeable. article i seeks to remove a judge based on a decision in a single case, and that decision was a single motion not to recuse himself in 16 years as a federal judge. the lifemark recusal motion was the first and only such motion judge porteous was faced with in three decades as a judge. allow me, please, to cut to the chase. we'll deal with one allegation in article i which deals with

this single gift to judge porteous by his longtime friend jake amato. that is in my view, the most serious allegation in article i. and it was a colossal mistake. but i need to correct the record. the house stood up and said, you know, nobody called this a wedding gift except defense counsel. that's news to me. in the hearing before the committee, jake amato described how he and the judge were on a boat on a fishing trip late at night drinking and the judge got very emotional and was talking about the fact that he could not cover the expenses for his son timothy's wedding. amato is very close to timothy. that was the context of this discussion. but more importantly, i asked amato, in fact, the only money you recall ever going to judge porteous was this wedding gift;

right? amato's answer was "correct." judge porteous never disputed that gift. what he disputes is the implications of the gift. judge porteous accepted responsibility because it created an appearance of impropriety, and it did. in accepting a very severe punishment by the fifth circuit he publicly apologized and expressed regret that his actions brought the court to address this matter. he also later said that he would in fact retire from the bench. before delving into that gift, let me be clear what we're discussing. i think it's important to call things for what they are, or in this case what they're not. this wasn't a bribe. all of the parties agree on that. this was not a bribe. and it wasn't a kickback. they don't even allege in article i that this was a

kickback. so what was it? if it wasn't a bribe and it wasn't a kickback, with it was a gift. was it a dumb gift? was it a gift he shouldn't have accepted? you bet. but the framers k*b in isn't a bribe. this the court of appeals will disagree with trial judges. witl hundreds of judges are faced with recusal motions. sometimes they make mistakes. recusals are usually based upon past relationships, the entire waterfront of conflicts. when a judge gets it wrong, usually that's it.

it's just a reversal. sometimes you'll have a reprimand. very rarely will you have any discipline at all. but consider the implications of accepting the appearance of impropriety as a standard for removal. that this could be so easily used to strip our courts. an appearance of impropriety, is that what we're going to substitute other high crimes and misdemeanors for, something that hundreds of judges are accused of. all of them would be capable to be brought before this body. we talk a lot about this lifemark case, and i must tell you it's exceedingly complex as a commercial case. it's between a subsidiary of a giant corporation called tenant health care, lifemark and pharmacists from louisiana i see no need to delve into these

specifics, which i think you would be happy to know. it's sufficient to say this was a long-running dispute between these two parties. lifemark was accused of delaying the case at any cost. it bounced from judge to judge and ultimately was assigned to over a dozen judges. one dozen in three years. that's the lifemark case. then in 1996 it was randomly assigned to judge porteous. defense witnesses stated, when asked, that judge porteous had a reputation for moving cases diverted. it was a judge from gretna. he was a state judge. he was a lawyers' judge. they tended to get cases done. and when he looked at this docket and saw a dozen judges in and out of this case and no trial, he promptly announced to the parties, "i'm the last judge you're going to see in this case, and we're going to try

this case." i want to emphasize something. he said that to the parties before any friends or lawyers in this case, before anyone that he had a friendship was counsel in the case. he said "i will be the last judge in this case and we are going to go to trial." so he was. seven district court judges, three magistrates, and he ended that, and they went to trial. now, when he said that, lead counsel for the, for lifemark, joe mull, wanted to have him recused and to go to yet another judge, and he filed a motion to recuse. and he cited the fact that judge porteous was close friends with jake amato and lenny levinson. and indeed he was. what we heard in testimony from

witnesses is in gretna, a very small town, like many small towns lawyers practice in and judges preside in, most judges know the attorneys in their courtroom. if judges had to recuse themselves because they knew a judge in their courtroom, there would be no cases in these courts. these are small communities. and in gretna, judges didn't recuse themselves. in fact, our witnesses -- actually not our witnesses. let me correct that. the house's witnesses said that they never heard of a judge recusing themselves in gretna because they couldn't. that was the tradition that judge porteous came from. and many judges agree with that, that as long as you acknowledge you have a relationship, a relationship that's not being hidden, you don't have to recuse yourself. and he was friends with amato and creely and don gardener. and i'll be returning to mr. gardener in a second. he was friends with amato and

creely since the 1970's. both amato and creely said they were best they practiced law together, they hunted and fished together, they knew each other's families. timothy testified that they were known as uncle jake and uncle bob. creely taught him how to fish. amato taught him how to cook. they were close friends. so was don gardener. in fact, gardener was even closer. gardener asked porteous to be the godfather to one of his daughters. this uncontested background, i'd like to reexamine article i. first, the house asserts that judge porteous failed to disclose, while he was a state judge, that he engaged -- quote -- "in a corrupt scheme with these attorneys." this is of course predicated on the fact that there is a corrupt scheme. the problem with the house's case is the house's own witnesses who denied a scheme. both at trial and in a senate deposition, bob creely expressly

disavowed -- expressly disavowed -- that he had an agreement with judge porteous where he received curatorships in exchange for loans or gifts. instead creely was adamant that there was no relationship between the gifts and the curatorships. he said "i gave him gifts because we were friends." and he said "i gave him gifts before i ever got curatorships." not only that, but he said that he didn't like the curatorships. and he said he told porteous that. creely was a very successful lawyer. these curatorships were bringing in a few hundred dollars here or there and he said he hated them because they were more trouble than what they were worth. it's true, the house has portrayed judge porteous, frankly, as something of a moocher. i mean, that, i guess, was congressman goodlatte's point

when he pointed out with great emotion to you judge porteous went to a lot of lunches with these men and he didn't pay for his share of the lunches. he just paid for some of them. let me ask you: did you ever think that you would be sitting here on the floor of the senate trying to decide whether that's an impeachable offense, being a moocher? he paid for a few lunches; didn't pay for most of them. and the witnesses said that lunches in gretna routinely had lunches paid for them. the house's own witnesses said they couldn't remember -- that's not true. they could remember one judge on one occasion buying her own lunch. that is the record in this case. so creely is the guy in the house report that is the linchpin between this alleged scheme between curatorships and these gifts.

only problem? creely came to the senate and said there was no agreement. said he never gave any money to judge porteous as a bribe, never gave him a kickback, never expected to receive anything in return for the gifts. they were just friends. not only that, he said that he would have given those gifts without question, regardless of the curatorships. to drive the point further, he said that judge porteous never asked him for any percentage or return for the curatorships. not only that, but then the house's own witnesses said, by the way, all the judges in gretna give curatorships to friends and acquaintances. all of them. this has been discussed in louisiana, but the louisiana officials have decided that they would allow that.

judges routinely would give curatorships to former partners, friends, acquaintances. it has been reviewed, and we heard from the only expert in this case on louisiana ethics, and that was professor cealino. and he told the senate this is perfectly ethical under the rules. it is well known. it is a practice that has existed for a long time, and it still exists today. this doesn't mean that every judge in louisiana is corrupt. it's just that they don't view this as corruption. witnesses said that judge porteous gave curatorships to new attorneys and he gave curatorships to creely. the house never went and actually found the records of all the curatorships. you'll notice there's no discussion of any other curatorships.

they had the ability, they could have come to you and said here's all the curatorships that were issued during this period of time. here's the curatorships that went to creely or not. they didn't do that. but even if 100% of the curatorships went to his friends, it was perfectly ethical under the local rules. the only testimony that the house was able to present attempting to establish a connection between the curatorships and gifts was jake amato. and what they had -- what the problem was with creely saying there wasn't any relationship, that's a problem because the house report says creely said that. so they went and got amato and amato said on one occasion many years ago he remembers creely saying that there was a relationship. but the house wasn't deterred by the fact that amato was giving this testimony with creely here in washington denying he ever

said that. but that didn't deter the house. they had amato say what they wanted creely to say. and then amato said that these figures that are being thrown around by the house were not figures that he came up with. he said that they were what he referred to as guesstimates. guesstimates. -- guesstimates of the gift and the relationship to the curatorships. now, amato said that actually the number that you've heard here today didn't come from home, didn't come from creely. in fact, they denied they could recollect -- there's no records to establish this conclusively. they said that amat -- amato said that the number actually came from f.b.i. agent horner who came up with an estimate of total gifts and just assumed -- just assumed that porteous must

have received half of it. and they started pressing them to say, wouldn't that be accurate? so there's the nightmare for you. the -- madisonian nightmare. the government gets guesstimate from a witness based on a figure that was just extracted by one of the investigators without documentary proof. the second factual allegation in this article is that the judge -- should be removed for intentionally misleading statements of the recusal hearing. i think i can simply end this by encouraging you to read the recusal hearing. it's not very long. reach your own conclusions. don't listen to me. don't front house. you will see that judge porteous gives them hearings. a lot of judges don't. they just deny it. instead they gave him a full hearing,ed to him he understood why he was bringing this issue and acknowledged he had a

relationship with these lawyers and then he went and said, tell me what i need to do to make sure you can appeal me. you have a right to appeal me. he stayed a case to allow an appeal. most judges won't do that. he didn't say in detail what the relationship was. he understood that mole was going to apeople one thing he did want to correct is that mole said incorrectly that he had received campaign contributions from these individuals and he said that's just not true. and he corrected it on the record. he never denied the relationship. from his perspective having a relationship, a friendship, particularly from his time in get na was not a -- gretna was not a problem, not a recusable issue and so he left it at that. the third allegation is that judge porteous should be removed from office because he denied lifemark's recusal motion. that is the most dangerous allegation in article i. because that would remove a judge for the substance of his

decision, in this case, a recusal motion. can you imagine if you start to remove judges because you disagree with the recusal decisions. judges are constantly appealed on recusal decisions. if you start to remove judges because you disagree with their conclusion even though many judges shared this, then you open up the bench to unlimited manipulation. now, the evidentiary hearing in the senate, i do not want to tell you was a total bust. it was not. for those of you who were looking for a conspiracy, we found one, and it came out in live testimony, a scheme. a very corrupt -- scheme. in that judge porteous was the subject. it sought testimony from mr. mole who you have heard as a

paragon of a witness. mr. mole brought the issue that he should recuse himself an mr. mole was shocked that he didn't. in fact, i think mr. goodlatte said that mr. mole had no alternative. but the house members didn't mention how mole proceeded. of after he lost the recusal motion, mole dieded he had to get this judge off the -- decided that he had to get this judge off the case. he was not going have this west bank judge rule in this case of lifemark. he was going to be bounced to get another judge. a 14th reassignment of the house if mole had anything do about it. went and talked to a guy by the name of tom wilkinson. he was assigned to the lifemark case. he went to the brother of the magistrate and this is the former jefferson parish attorney. he was known as someone who could solve problems like this. he was known as the go-to guy to fix a problem with a judge who didn't want.

wilkinson is now reportedly under investigation for corruption in louisiana. so mole met with him and then wilkinson got mole to meet with one of judge porteous's closest friends, don gardner. and he went to gardner and offered him an extraordinary contract which we have put in the record. that contract promised mol mole $100,000 if he joined the case. and offered him another $100,000 if he could get porteous to recuse himself. $200,000. but that was not all. the contract actually said, by the way, once porteous is gone, you're gone. so if you get him to recuse yourself, i'll give him dz -- i'll give you $200,000 and you go away and we can go perly on bouncing this case through the court system. the problem with this scheme by

mr. mole is that it didn't work because don gardner said, you do not want to go to tom porteous. you don't want me to go to tom porteous and tell him to recuse himself because he will react very negatively. and he refused to go -- this is his own testimony -- refused to go to porteous to ask for his recusal. ultimately the judge's decision cost his closest friend $200,000. mole, himself, admitted that he had never seen a contract like the one he wrote and witnesses testifying said they were shocked to learn of a contract where someone actually put a bounty on a federal judge and offered $200,000 if you can get him off the case. nevertheless, when gardner lost that case, he said, the judge gave him a fair hearing.

he said, look, this judge is just not bribeable, he gave us a fair hearing. he disagreed with us and we lost. by the way, this isn't mentioned by the house. creely also practiced before the judge. he was not the counsel, by the way, he was not the counsel in lifemark, but creely actually did have a couple of cases in front of the judge and the judge ruled against him and cost him a huge amount of money. in one case where he lost a great deal of money, creely actually took his best friend on appeal and got it reversed. but his friendship didn't stop the judge and one of creely's biggest cases from ruling against him. dent feel a need to recuse in those occasions and it didn't influence his decision. now, the article also talks about things of value, another general term, and these are small common gifts that creely and amato agreed they gave to

porteous and said were common in gretna, as in many small towns. and, yes, they had lunch together. they had lunch together for their whole 30-year relationship. and a few of those lunches did continue while lifemark was pending in front of the judge. the judge paid for an occasional rule, but officer goodlatte is absolutely correct, he he didn't pay for enough meals. and the house did not contest the only ethics expert in this case who said those lunches are permitted under state law. and they still are permitted today. back then they had the same rule the united states senate had. back then the senate allowed senators to be bought lunches. not because it invited corruption. senators didn't view it as a source of corruption. neither did the people of louisiana when it came to lunches being bought for judges.

it was just a courtesy. now, there's been talk about creely attending tom porteous' bachelor party in may 1999. i'm going to note if you look at the testimony, creely said he was friends with timothy. timothy's a lawyer. he was very close to timothy. and he had great love for timothy. he expressed that in a hearing. he went to a friend's wedding. when he bought the lunch at his table, porteous was not at the table. and he threw in with the other attorneys at that time. now, as i mentioned earlier, the wedding gift is, frankly, the most serious problem. it occurred three years after the recusal hearing. so i'm not trying to excuse it. but i do wish you would keep in mind because these dates get blurred. it was three years after the recusal hearing when this wedding gift was handed over.

and, yes, he went on this fishing trip. it was a very emotional thing. he was having trouble paying for his son's wedding. and it was a huge mistake. and the judge admitted it. it was not a bribe. not a kickback. it was a gift and it was dumb to be offered, dumb to be accepted. but both creely and amato made it clear that it was not a bribe or a kickback. in fact, jake amato testified that he felt that judge porteous was always -- this is a -- quote -- "was always going to do the right thing." in the case. he didn't see any connection to in terms of influencing the outcome of the case. now, one question the house has never been able to answer and one which the senate might be able to put to the house, and that is, if judge porteous could be influenced for $2,000 or some other -- quote -- "small things of value" as the house alleges, why didn't he recuse himself so

his close friend could collect $200,000? why didn't he rule for creely in those other cases? he had two friends in the case of lifemark. he cost one $200,000. why didn't he accept money like those other judges that were nailed in wrinkle robe. the appearance of inappropriatey is a dangerous -- for this body to purport in the impeachment standards. state bars have continued to move away from impropriety because it is ruled as basically meaningless. it is basically, don't be bad. he said state bars are moving away from it at the time the house is asking you to adopt it. -- adopt it for the impeachment standard. let's turn to article ii. article ii we've already discussed is the article that is the prefederal -- pre-federal

conduct allegation. i will leave that tower discretion since -- to your discretion since we have not ruled on or you have not ruled on the motion i will try to aaddress a few of the facts in this case. if the senate agrees with the defense that a judge cannot be removed for pre-federal conduct, then most of article ii is gone. the -- there's virtually nothing there in terms of federal conduct. the evidence that is supported in article ii in terms of federal conduct are six lunches. six lunches that took place over 16 years. so let me make sure we understand that. the evidence in article 2 in federal conduct that you're going to remove a judge for is six lunches. i should note that judge porteous attended several of these lunches, but there is no record that he attended all of

the lunches. so the six might be a high number. you see, the house had no record that he actually attended some of these lunches, but somebody at the lunch had absolut vodka, i kid you not. so what the house is saying that because judge porteous drank absolut vodka, you should just assume he was at those lunches and -- and use that as part of the evidence to remove a federal judge. i'm not overstating that. we hope -- we ask the committee to take judicial notice that judge porteous is not the only human being in louisiana that drinks vodka or even absolut vodka. what they're inviting you to do again is remove a judge on pure speculation. and, by the way, the value of these lunches over 16 years was also not mentioned. they're less than $250.

over 16 years. the individual meals benefited judge porteous, the average wa . and as i mentioned, experts testified in this case and were not contradicted that judges were allowed and are still allowed to have lunches purchased for them in this respect. the most that the house can come up with is that by attending these lunches, judge porteous, quote, "brought strength to the table." that is one of the statements of the witnesses, louis marcotte, that he brought strength to the table, and that's -- that's enough. imagine if that was enough. if you're permitted to have lunches bought for you but someone at the lunch benefited from your being present, a third party, because you -- quote -- "brought strength to the table," that would be enough for a charge of impeachment under this

approach. the record shows that senator john breaux went to some of these lunches with the marcottes. does the house suggest that because senator breaux went to a lunch that he should be expelled from this body? that would be ridiculous. virtually every witness called by the house and the defense testified that judges dealt exclusively with the marcottes as bail bondsmen. you heard the house say bail bondsmen would often deal individually with the -- with the judges. i just need to correct there. there weren't bail bondsmen, plural, on any practical level. this is a small town, and the marcottes were it. the witnesses testified that the marcottes controlled over 90% of the bonds. they were the bail bondsmen for gretna. it's not a huge town. by the way, if you think about that, it means that every judge that signed a bond was almost certainly signing it for the

marcottes because they were the only bail bondsmen on a practical level. now, here's the thing that you might find confusing. at the evidentiary hearing, the house conceded not only that they could not prove a linkage on these bonds but that they did not specifically allege a relationship between the size of the bonds and this relationship with the marcottes. the house stated, and i am quoting -- quote -- "the house does not allege that judge porteous set any particular bond too high or too low." close quote. so all of the references just now about setting things too high, too low, how they would have benefited a bail bondsman, the house stated it was not alleging that they set these things too high or too low, and once again, we find that the articles are being redesigned here in the well of the senate, irrespective of what was

previously said by the house. the house does little beyond noting that judge porteous often approved bond amounts by the marcottes, and as detailed in our brief, the house's own witnesses demolished that allegation. the amount of a bond is -- is set to reflect the assets of the defendant. the senate staff summed this up in its own report in front of you on page 18 and said -- quote -- "in many cases, the highest bond a defendant can afford may also be the socially optimal level, so as to eliminate unnecessary detention while providing maximum incentive for the defendant to appear." that's the point of a bond. you set it high enough that they're going to come back to court. and it was very good reason. the witnesses in this case testified that judge porteous was a national advocate for the use of bonds, and he connected the use of bonds to overcrowded systems.

gretna was subject to a series of federal court orders that were releasing people, dangerous people from their jails, and judge porteous spoke nationally on the need for judges to use bonds, and he was correct. as we submitted in the record, studies have proven him correct, that if you get a bond on an individual, the chances they will return and not resid v-8 are much, -- recidivate are much, much higher. judge porteous said start issuing bonds because people are not showing up. get them under a bond and they will. now, you also saw that the house suggested that somehow the marcottes got special treatment from the judge. the fact is they were the only bail bondsman on a practical basis. so if you wanted to give bonds, you gave bonds with the marcottes. by the way, his secretary rhonda danos testified that the judge also often told her not to let the marcottes into his office. on occasion, she would say, he

would say not to let them in. she said they were not given any special treatment in access to the judge. she said that judge porteous was a very popular judge and lawyers would gather in his office. now, let's turn very quickly to these two cases. i'm afraid i'm running short on time so i will have to ask you or your staff to look at our position in our filing, but i want to note that on the duhan expungement that has suddenly resurrected like a phoenix on the floor of the senate, we thought it was dead, and the reason we thought it was dead is because it had been downgraded in the trial because of the testimony of the witnesses where the house simply referred to it as noteworthy. by the end of the trial, it had gone from a matter for removal to a noteworthy case. the reason is that witnesses testified that this was a routine administrative process.

the witnesses showed -- and there were no witnesses called by the house that were experts in this area. we called witnesses to talk about these types of setasides and expungements, and those witnesses said this was perfectly ethical and appropriate. not only that, in the duhan matter, judge porteous was following the lead of another judge that was never revealed to the house. we revealed it in the hearing. it turns out that a prior judge had already taken steps in the case. louis marcotte testified that he wasn't even sure he asked judge porteous for his assistance on the duhan matter. nevertheless, the managers included the allegation in the article. as for the wallace setaside, the house could not call any expert to testify that it was improper, and we did call people who said it was perfectly proper. it was both legal and appropriate under louisiana law.

now, i want to address one thing about the wallace setaside. the government once again is coming here, the house is coming here and saying, you know, he did this so you wouldn't know about it. he waited to take actions in the wallace case after he was confirmed. and what do you think of that? well, i suggest what you think of that is it's not true. as we said in the hearings, this is why we were surprised to find it being mentioned in the floor of the senate today. it turns out it's not true, that the judge held a hearing before confirmation and stated in the hearing i intend to set aside this conviction. that's a pretty weird way to hide something. before confirmation, he said i'm going to do this, and i need you to put emotion together. why? it was the right thing to do. it's routine in this area. these types of things are very routine. one of the attorneys said they just -- that he just walked around with these forms in his

briefcase. and do you know what mr. wallace said? he said that judge porteous was known as a judge who would given someone a second chance, and he gave wallace a second chance and wallace went on to become a minister, and he is now a respected member of his community. now, a lot of this turns, of course, on louis marcotte who also, by the way, admitted at trial -- this is louis marcotte who said -- he explained why he lied on one occasion, and he simply said well, i wouldn't have any reason to tell the truth. that's louis marcotte. indeed, one of the witnesses told the committee that the house staff told him that the reason he was being called is because people wouldn't believe louis marcotte, that he lacked credibility. now, the marcottes ultimately said that lunches would occur

sometimes once a month. car repairs that were discussed here lasted about six to eight months and consisted of a few minor repairs. we suggest you simply look at the testimony. you have to look at the testimony because there is not any documents. there's no documents of exactly what repairs were done. it's all testimonial. so this isn't a debate over the standard of proof. there is no proof. finally, the house has continually referred to other state judges who were convicted of crimes, judge greene, judge bodenheimer. and i just simply want to note that judge porteous, of course, never accepted cash or campaign contributions from the marcottes. that put him in a small group, from what i could see. he -- they gave as much as ten grand to judges, including judges who were still on the bench. they never gave judge porteous any cash. why?

handing out cash to other judges. if he was so corrupt, if he was this caricature that the house makes him out to be, why didn't he take the cash and run? judge porteous, of course, was never accused of a crime let alone convicted. and those men, judge greene and judge bodenheimer, you just heard the house say look at the -- look at these people. judge judge porteous by their conduct. they were convicted of mail fraud and planting evidence on a business rival. article ii is a raw attempt to remove a judge for conduct before he was a judge. article ii, i submit to you, is nothing more than what mcbeth described as a tale full of sound and fury, signifying nothing. article iii is the only article that does not rely on pre-federal conduct. what it relies on are a series of errors made in a bankruptcy filing that the judge made with

his wife camilla. i'm not going to dwell on the intricacies of the bankruptcy code, which may be a relief to many. what the record establishes is not some criminal mastermind manipulating the bankruptcy code. it basically shows people that had bad records, little understanding of bankruptcy, which, by the way, is usually the type of people that go bankrupt. they sought a bankruptcy attorney of well known reputation, mr. claude lightfoot, and he was -- they were given bad legal advice. but one thing the house doesn't mention today and did not mention to the house members when they got that unanimous vote, judge porteous paid more in bankruptcy than the average person in this country. he succeeded in bankruptcy. they filed a chapter 13 bankruptcy in 2001.

they paid $57,000 to the trustee. $52,000 repaid to their creditors. the only difference is that he was scrutinized a lot more. he had two bankruptcy judges, a chapter 13 trustee, and the federal bureau of investigation and the department of justice. by the way, i mention the f.b.i. and d.o.j. because the f.b.i. and d.o.j. raised these issues that you just heard about while the case was pending. they didn't come into this case after it was done. they actually went to see the trustee and raised these issues with the trustee, and the trustee said that he didn't feel that any action would be appropriate, necessary. so he found that these actions actually wouldn't warrant an administrative action by a bankruptcy trustee, but the house managers would say that that's still enough to remove a federal judge under the impeachment standard. and by the way, after the d.o.j.

and the f.b.i. went to the bankruptcy trustee and said look at all these things and the trustee said i don't think this really warrants any action on my part, the d.o.j. and f.b.i. didn't take action either. all this sinister stuff about how they found this, it was found before the case was closed. none of judge porteous' creditors ever filed a complaint or an objection. that was also not mentioned in the case. now, when they retained mr. lightfoot, they had never met him before, and it's true that mr. lightfoot did suggest that they file with a fake name, orteus instead of porteous. that was a dumb mistake. to his credit, mr. lightfoot said this was my idea. he said i was trying to protect

them, particularly judge porteous' wife who was upset about the embarrassment of the bankruptcy and the fact that at that time, the "times" picuyne published everyone's names for bankruptcy in the paper. he thought he could help that by using orteus, and then -- that was just for the first filing, correcting it, so that no creditor would actually get that document or get that false name. and he did roughly 10 or 12 days later, he corrected it, and no creditor did, did get the misleading information. and by the way, in that first filing, he used the information, including the social security number, which is the primary way you track people, so he didn't falsify that. but it was a dumb mistake but it was a mistake done by mr. mr. lightfoot at his suggestion because he thought he could avoid embarrassment. he says he regrets it but it was his idea. in the fifth circuit, you are allowed to follow the advice of

counsel. should judge porteous have followed this advice? no. he should have known better. this is one of those things where yielding to temptation at a time like this was a colossal mistake. but when the trustee was presented with this, with the f.b.i. and the d.o.j. coming to his office, he said he felt that this was no harm, no foul. why? because nobody was misled because they changed it. no creditors were misled. he finished his bankruptcy filing. dewhat mosfiling. he did what most people don't do, he succeeded. he actually paid his creditors. henry heldenbrand, who's a standing chapter 13 trustee in tennessee, said that he has seen

bankruptcy petitions filed with incorrect names. he's seen it. he says that what you do is you require them to correct it and you give notice to the parties. in this case, they didn't have to do that because the parties, the creditors, had already gotten the correct information. former united states bankruptcy judge ronald barliant said on the basis of the facts of that use of orteus, he would not find any intent to commit fraud or otherwise impair the bankruptcy system. he just didn't see it. neither did the trustee and neither did the f.b.i. or the d.o.j., to the extent that they didn't charge it. he further -- the house further alleged other errors and inaccuracies in the bankruptcy schedule as part of this dark and sinister plan to co-opt the bankruptcy system. two empirical studies that were -- that were introduced at trial shows that 95% to 99% of bankruptcy cases contain errors and inaccuracies.

in fact, we had testimony fro from -- from mr. hildenbrand who said he actually didn't believe that he'd ever mean? his 28 years as a -- seen in his 28 years as a chapter 13 trustee, that he'd ever seen a perfect filing. bankruptcy law professor rafael pardo also said that it's never been the standard to be perfect, that these things are -- that that's unrealistic and unworkable, people make errors. the people who are filing bankruptcy are people who couldn't handle their records before. it's not surprising that when they file bankruptcy, they have errors. now, i would like to talk quickly about these errors where the judge is alleged in summer of 2000, he gave mr. lightfoot his may 2000 pay stub but did not later supply an updated pay stub. what they left out was the

difference between those two pay stubs was $173.99. a month. trustee boleo said that it was such a small amount, it wouldn't have affected really the payments considerably to the creditors. the record shows that mr. lightfoot -- i'm sorry, it shows that judge porteous actually told his bankruptcy counsel that his income was higher than listed on the pay stub but mr. lightfoot elected to use the information on the stale pay stub. mr. lightfoot testified at trial he failed to ask the porteouses for the updated pay stub prior to preparing their bankruptcy filings. but now that's going to be part of a basis for the removal of a federal judge. let's talk about that bank one account. on that one, mr. lightfoot testified that he simply asked

the porteouses to approximate how much money they had in their account. their bankruptcy lawyer said, just give me a ballpark figure, and they did. there was no sinister plan here. how about the fidelity homestead association account that was just referred to? that account was omitted inadvertently. judge porteous testified before the fifth circuit he thought he told mr. lightfoot that there was this fidelity account. however, it's undisputed that the value of that account was $283.42. that was the account that was mentioned to you. now, there's also a reference to the fact that debt was incurred during the bankruptcy. there's no bar on incurring debt under statute during bankruptcy. there's no bar to do it. and, yes, the house made a great deal out of the fact that the

porteouses gambled. gambling's legal, and it was a problem for judge porteous it was an addiction. and he dealt with it in a public way that few of us would want to deal with it. he dealt with it. he dealt with his drinking and his addiction problems by going to seek professional help. and like many of us, he didn't do that until his life exploded on him. and he went and he got treatment for depression. should he have done it before? yeah. but gambling is not unlawful. and more importantly, what was just described to you about these markers is what the judges, judge dennis and his colleague, specifically objected to when they said, under louisiana -- this is a quote -- "under louisiana commercial law, markers are considered checks as defined by louisiana statute." markers are uncashed checks, not debts, for the purposes of bankruptcy.

at trial, an f.b.i. agent called by the house confirmed this interpretation, that a marker was a temporary check. in other words, these judges, who are not part of a sinister plan to undermine the bankruptcy laws of our country, these judges all said they actually agree with the interpretation that this is not debt. some people might disagree with their interpretation. but at most, it's an equipoise. they don't -- they did not believe it constitutes that, period. should they have gambled in their bankruptcy? of course not. that's a -- but that's not a failure as a judge. that was a personal problem that the judge overcame. let's move on to the last article. the fourth article of impeachment is a deliberate attempt by the house to resuscitate the pre-federal charges by recycling them through the confirmation proce process.

and, by the way, senator leahy had asked about perjury in the confirmation process and i said i do believe that perjury is a removable offense. and then mr. schiff stood up and said, ah-ha, then you do believe in pre-federal basis for removal. the answer is, no. the confirmation process is part of the federal process. it's part of your service as a judge. it's not pre-federal in the terms of what we are discussing. it's directly related to your being put on to the federal bench. obviously, if you acquit judge porteous on articles i and ii, you have to acquit on iv because iv is basically article i and article ii just basically recycle as an issue. there are three questions that the article refers to and i'd like to read you that question from the sf-86. here it goes. "is there anything in your personal life that could be used by someone to coerce or blackmail you?

is there anything in your life that could cause you an embarrassment -- sorry, cause an embarrassment to you or the president if publicly known?" by the way, that's one question. those aren't two questions. it's a compound question. now, i'd like you to put yourself in the shoes of judge porteous. he just answered 200 questions, a hundred of his closest friends been interviewed -- family, neighbors, colleagues -- this was the final question. i'd like you to ask yourself how you would answer that question. is there anything in your life that someone could say would -- could be used to coerce or blackmail you? would you answer that yes? or would you answer it no, because you know you wouldn't be coerced and blackmailed? sure, all of us have stuff we're not proud of or things that we might not want to be made publ public. that wasn't the case with porteous, which i'll explain in a second. but we heard uncontradicted testimony that if you just now said i'd answer no to that question, you wouldn't be alone.

the f.b.i. agent who testified said in his 25 years in the f.b.i., he had never seen anyone answer yes to that question. we brought in the leading expert on the confirmation process. he said that he was unaware of a single person ever saying yes to that question. it is so ambiguous that most people just say no. people have to sit there and wonder, what would be embarrassing to president clinton? and you're supposed to say, well, i can think of this or that, maybe that would embarrass president clinton. they don't do that. they say, look, i don't think my life is embarrassing to people. these lunches that they keep on citing? they were in public places. they weren't held underneath a car. they were held in open restaurants. he never tried to hide them. they were legal. they happen all the time. there was actually a table that the restaurant set aside for lawyers and judges. and the witnesses testified they had never seen any judge but one

ever pay for one of those meals. now, by the way, this was raised about porteous's 2000 tax refund check. that was raised with regard to things that he was trying to hide, and i believe the expression was, you know, that 2000 refund check went right into his pocket. well, you know what? it's supposed to. refund checks are not part of the bankruptcy filings in cases like this. they always go into your pocket. what they're asking you to do is to assume that judge porteous was embarrassed and then remove him for that. let me state that again. he was asked a question if anything would embarrass himself or the president. they want you to say, i think he was embarrassed, and then remove a federal judge on that basis. even though he didn't hide these

things. they keep on talking about these relationships. they were public relationships. constitutional standard, in your does that track with the view? it's now down to embarrassment? he didn't hide the creely relationship because creely said there was no relationship of gifts to curatorships. why would he hide that? creely said it never happened. and so once again they're asking you to assume facts and then say those assumed facts must have embarrassed him and, therefore, his answer to a compound question of "no" must be enough to remove him. this is not new. all of you have been involved in the confirmation process. there have been plenty of circumstances where facts have come forward that were embarrassing to a nominee that were not revealed. we saw with bernard karick, who was nominated to be a member of the cabinet, that he was actually criminally charged for saying that there was nothing

that would be embarrassing, said said, "not to my knowledge." ask prosecutors said, that's a lie because we found something to be embarrassing. that went to the federal court, and the federal court said -- and i quote -- "where a question is so vague as to be fundamentally ambiguous, it cannot be the predicate of a false statement, regardless of the answer given." the court went on to say, "plainly, the meaning of the word 'embarrassing' is open to interpretation and is hard to believe a federal prosecution would follow." so here's my question: if it's hard to believe that a federal prosecution would follow, how about an impeachment based on embarrassment? you can't even use this in that federal court. the judge said you can't even base a charge on it. and they are arguing that you should now base the removal of a federal judge o on it. a judge in the third circumstance ultimate who was found to have lied in his confirm -- circuit who was found to have lied in his confirmation hearing, but the judge in the

third circuit said discipline was only warranted with the showing of intent. the house didn't attempt to make that showing. united states district court james wear told people that his brother had been shot and killed in a racially motivated incident in alabama in 1963. 1997, wher waer was nominated te ninth circuit and he listed family members, including virgil waer, who actually existed, just wasn't his brother. and yeah, he been killed but it wasn't his brother. it was a lie. he was severely reprimanded by the court. and he should have been. but it's not an impeachable offense. he still sits on the district court in california. i mentioned to you goal black. we have plenty of those examples in the record. the fact is that if you start to remove judges for embarrassment, there will be no end to it. you will have house members lining up through that open door

to bring forth things that should have been mentioned in confirmation by judges that they dislike. anyone. not just judges -- presidents, vice presidents, cabinet members. that's the standard. if you read the newspapers this month, you'll see what i mean. you know, there are articles in the newspaper, "the washington post," where you have members of congress starting to make their case for the impeachment of supreme court justices thomas, roberts, kagan, and sotomayor. in fact, congressman peter defazio said -- quote -- "they've opened the floodgates and personally i'm investigating articles of impeachment against certain justices." if that's the standard, a president would have to raise nominees hydrophonically in the white house base fment they had any hopes of surviving on the bench. you cannot -- base fment they ha