this hearing of the house judiciary taskforce on judicial impeachment will now come to order without objection the chair will be authorized to declare recess of the hearing i'll now recognize myself in opening statement today the task force will continue its inquiry into whether united states district court judge tom thomas should be impeached by the u s house of representatives today to task forces held four days of hearings were testimony was taking regarding the following allegations the judge violated the public trust law and ethical canons presiding over the case in rail jo'burg enterprises by repeatedly making false misleading statements including the concealment of that under oath in this regard of the bankruptcy courts orders and by accepting things of value from the owners of the bail bonds company in louisiana in exchange for access and assistance in his official capacity as a judge including setting aside convictions today's hearing is part four in our series and will focus chairman article three of the constitution provides that federal judges are appointed for life and that they shall hold their offices during good behavior indeed the framers knew that an independent judiciary free of political motivations was necessary to the fair resolution of disputes in the ministration of our laws over the framers were also pragmatists and had the foresight to include checks against the abuse of independence and power that comes with a judicial appointment article one section two clause five of the constitution grants the house of representatives the sole power of impeachment this is a very serious power that should not be undertaken lightly however if evidence emerges that an individual is abusing his judicial office the integrity of the judicial system becomes compromised in the house representatives has a duty to investigate the matter and take any appropriate action to the to end the abuse and restore confidence in the judicial system the task force on judicial impeachment has been conducting a detailed investigation of the alleged misconduct of federal district judge thomas porteous task force has also held a series of hearings to gather further evidence from those who have firsthand knowledge of judge porteous conduct today we will shift gears a little and hear from expert witnesses on the standards for impeachment the standards of judicial conduct and judge porteous actions in relation to those standards i look forward to hearing from the witnesses and i thank you mr chairman for holding this important hearing i thank the gentleman w ould any other member at this time like to make an opening statement i want to welcome our witnesses today and thank them for their participation our first witness is professor charles j of the moore  branches professor j is the current director of the judicial disqualification project he is also a co author of judicial conduct and ethics and the author of preserving public confidence in the courts in an age of individual  rights rescuing judicial accountability from the realm of political rhetoric judicial independence countability and the role of constitutional norms in congressional regulation of the courts congress and the constitutional politics  carolina school of law professor graduated from yale university this master's from the london school of economics and his law degree from the university of chicago service a professor at william and mary law school for over a decade before joining the faculty of the university of north carolina school of law has been a visiting professor at cornell and duke law school and was a visiting fellow at princeton university as a part of their james madison program in american the history of the federal impeachment process for his consideration of president clinton he has also testified before this committee regarding legislative proposals involving the judicial branch he is the author of a number of works including the federal  technicalities given to this body and the other body precisely because it's a broader more common sensical inquiry second and related to procedural rules applicable to ordinary criminal cases cases place the defendant's bodily liberty at risk in a capital case life hangs in the bow but an impeachment defendant does not face any threat to life or limb in an impeachment proceeding even if he is being impeached for treason not even clear that removal from office is really a punishing judge forty s would be by depriving him of anything that was ever rightfully his rather removed from office simply does an ill gotten gain it ends a federal judgeship that he should never have received in the first place and never would have but for the fraud perpetrated while being vetted for this position here on capitol hill third it's gross mistake to believe that federal officers may be impeached only for misconduct committed while in office or even more strictly for misconduct that they committed in their capacity as federal officers this was the standard that was put forth by judge way into office by definition the bribery here occurs prior to the commencement of office holding but surely that fact can't immunize the bribery from impeachment and removal have the bribery not occurred the person never would have been an officer in the first place fraud for not all of a civil or even downright false statements in the nomination confirmation process deserve to be high misdemeanors equivalent to bribery here as elsewhere judgment is required and the congress in my view is perfectly positioned to exercise that judgment about what makes these misstatements particularly where the of impeachment in the case of judge as i understand the facts here are some of the things that i would stress judge and finally the house and senate in this case need not worry about doing the people's verdict on election day concern that does properly inform presidential impeachment is a judge only because the senators themselves voted to make him one and they did so under false pretenses he lied to them this house should give the other body which voted to place the position of power over the chance to revoke and remove from power now of foreseeable misconduct given the growth pattern that's been demonstrated here in conclusion every day that a fraud continues to claim the title of a federal judge and to draw his federal salary is an affront to fellow citizens and taxpayers to say nothing of the party's unfortunate to come before him the mere fact that criminal prosecution of might not be warranted should not mean that he should therefore escape scrutiny and verdict of an impeachment court i'm reminded of the bank robber who managed to fool the judge into acquitting him that's great you're out of the defendant blurted out does this mean i can keep the money thank you mister professor thank you  you have my written statement and so i'll give you a much shorter version of it or remarks at the outset that i want to take the liberty of reminding you that the integrity of the federal judiciary and public confidence in the your responsibility it is the responsibility of the house of representatives to monitor the conduct and the misconduct of those people who have been appointed to certain offices including federal judge in my written statement i focus on four different issues that i think are of interest to you as a committee and i'll simply summarize those issues here the first to do with the question of whether or not impeachable offenses have got to be the most common phrase that you find reviewing the literature on the history of it is that the framers and ratifiers intended impeachable offenses to be what they thought of as political crimes and they described these things as offenses against the state injury of the republic breaches of the public trust power they rarely talked about things that were actually codified as criminal offenses but instead described offenses that were not libel law and so i think the overwhelming weight of authority is that you need not restrict yourself to consideration of conduct that would would have done send someone to present a second issue with whether or not somebody may be subject to impeachment  conviction removal or conduct done prior to occupy that particular position this can be a difficult question but i don't think it's a difficult question here as i suggest in my written statement any judge thank you  can ask a specific question did you receive kickbacks from attorneys while you're on the bench because they don't know the conduct of you to ask about so they generally ask really general questions like to or compromise him in any way or that would impact negatively on the candidate's character or reputation judgment or discretion similarly there was a question when the senate questionnaire which said please advise the committee of any unfavorable information that may affect your nomination and a judge's answer was to the best of my knowledge i do not know of any unfavorable information that may affect my nomination similar there was another question is there anything your background  could embarrass the president were these questions sufficient to raise obligation of disclosure on the part of the judge such that the failure to disclose either the relationship with a bail bondsman or the kickback relationship with the attorney what in your view constitute a fraud in the senate sufficient to warrant his  common sense to simply look at the questions that were asked and look at the kind of behavior the kind of and understand that that's exactly the kind of thing the senate would have wanted to know in fact that the behavior isn't just accidental it's not one or  we have the responsibility of educating and if they're faced with a question like this and you don't they get the message that there's a level of corruption that's permissible but there's a level of disclosure they don't lies and that he would never would have gotten had he been truthful how do you told the whole truth as was his obligation the questions were brought partly because it's impolite to be more specific  treason bribery and other crimes and misdemeanors against united states what does what does that mean particularly high crimes and misdemeanors is that as some of argued  former president ford when he was in the house of representatives maintaining that an impeachable offense was whatever congress said it was do you agree with that with respect now he's a graduate of failing to disclose his prior conduct word yet mark yes we all agree that it is failure to disclose his prior conduct prohibit the president senate from effectively exercising their constitutional duty to vet him i think  viewed as a whole in the laws and can and as a coordinated through for the committee here if you would how you would approach articles of impeachment would you have one house has got is very different than the charge that the prosecutors got the burden of proof is very different the judgment is different and so you have the power to consider the evidence under whatever burden you think is appropriate in your you would be bound in any episode for impeachment here all that's being done is a removing a position that the judge never should have had in the first place it's not like putting someone in prison taking away their very life it's not even facts of some of these other transactions he actually was not guilty of anything and that of course would bear on your judgment if you thought if you actually had some findings which i don't think we do have in his favor  and i just mentioned to the professors in terms of the fact pattern that we've asked to analyze along the lines of what you've been describing we had testimony last week from one of the bail bond people that when he asked the judge to set aside the conviction of one of his employees the judge indicated that he would only do so after his confirmation prior to taking the bench but after confirmation which i think  from professor book the senate imposes not just the automatic verdict upon guilt of removal from office but basically these two people are forever disqualified from ever investigated and researched about whether basically all the money that he was paid as a federal judge didn't deserve it he should never have been a federal judge from day one and this is part of his fraud and if an impeachment you very much mr chairman and thanks to the witnesses it's been very informative and we appreciate your testimony today and you've been called here in the instant case but obviously what your testimony and what we do may be looked upon by different witnesses prospected as you have referred to what has transpired in previous impeachment proceedings so my question even though it relates to the instant case obviously has application in the future depending what this committee in the house and then what the senate would do we move in a certain direction in the broader sense you're really looking at separation of powers and it's very unique situation and i think we have to be very careful  particular case i mean there are so many instances that we could move forward on and i think you are pointing out you do it very generally you can also have it very specifically and so on something that has concerned me here in this discussion is what was the senate privy to how much is the senate know now in this case i mean there's so much going on that you can probably make the representation that the senate was not aware of never was able to inquire what is the senate really restricted to the type of questions can be made during the confirmation process my memory serves me that many things are discussed associations with individuals associations with organizations  to the point where you can determine whether someone may even be a racist i'm just going to the first question is what are the limits of the senate confirmation to what extent can we rely that to some degree questions weren't made and maybe not in this particular case as to all of the allegations but that's the first question the second one is at what point do we quit looking backwards if a judge is on the federal bench for ten fifteen years and something is discovered how far back do you go because the ultimate question in this is the third one have you ever had impeachment proceedings and trial predicated more on a political basis than what i would refer to as something less than political nature as i said if you look at the potential what good occur not that it has occurred but the potential it could occur and especially in modern times could you have something that was completely politically motivated because i  happening today maybe not in the end the danger that that would pose and would it be preferable to be is narrow and specific as possible so that there's not a broad interpretation that could be misused misinterpreted in the few those are great questions i will try to answer them as brief as possible i think that the short answer to the last question i think is probably is a good idea to be narrow to try and deal with the case in front of you not to worry about the next that's how the common law typically are often evolves and that's how impeachment self has evolved over time but in terms of the specific questions first of all what did the senate know i can tell you i don't know i'm pretty had the senate known it he would not have done what he did the second question is how far do you when you stop looking backward i can't answer that question i wish i could i think the evidence is in that sense what it is you're in a better position to make a determination about when  purely political motivation that's precisely why the framers designed the process the way they did the divided impeachment authority in the house and the senate they required a majority in the house a supermajority in the senate and that was purpose because they wanted to make it difficult they wanted to ensure at the end of the day that they will move all it would likely be consist of a bipartisan consensus to get at least two thirds of the senate but you'd have to reach that point couldn't just do it on party was the framers understood that so they were issue of this to be begin at the end yes i think it's wonderful if this doesn't if impeachment process is not political and i think professor gary hart just nailed it the best way to do that is to be bipartisan and i haven't sent this as witness any whiff of of any kind of partisanship in in this and i think if the impeachment managers who go forward reflect a both political parties that will be evidence something you know having stolen a loaf of bread a long time ago and having a lot of wonderful life in between and then you know somehow comes back to haunt you on the most narrow basis for impeachment i  and in particular you addressed the issue of the application of the fifth amendment self incrimination clause i note that the way that it's worded both verbal or written testimony should not apply in all respects or are there certain fruits of compelled testimony on the one hand and using testimony compel testimony on the other so for example the miranda contact the doctrine is for unintentional miranda violations and miranda is connected to the s says that the jury is not to draw any adverse inferences from a defendant who stands mute and indeed a defense attorney is entitled to an instruction from the judge to that effect that goes beyond what the  case in the past involving impeachment where testimony of a judge who is the subject of the impeachment has been used as evidence in that case i'm also not aware of precedents at least that are held in high regard i don't know of any in fact in which article three judges have tried to interfere with ongoing part the opinion has been as well that he may have actually lied or made misrepresentations i'm not going to quibble with those statements i understand your testimony i suppose the question that i have is if the senate were aware of allegations of the became a judge by a vote of the senate and what this house is allowing with the sense to have a revote and they are not going to do it lightly they don't and it requires a two thirds of vote which is a very important safeguard in the servant and there was an affirmative misrepresentation and it's hard for me to sort of imagine facts that would change that and change my view of the senate quite a lot if you told me all with some background understand that when we ask you you know what we really  the supposition by the panel understandably based on the facts presented is that certain events have taken place and they have a certain character to them what is less clear to me is whether that was what the senate and investigation reveal i suppose i have to confess my own tendency is to be skeptical when wrongdoers try to put other people on trial rather than to own up to their own responsibility for their own gross misconduct and so i bought with all due respect that sort of trying to basically blame the senate for this sort of thing i i think that it's probably fair to infer that the senate was not aware of the information but the fact is that we ought to remember i mean people talked about the the sorts we've been talking about that would simply cause the senate to look the other way to treat it differently the fact is we're setting precedents all over the place and if that were true then the senate will have to be is simply one of we know there was an investigation but we don't know was whether it concluded there was credibility to any of these allegations and i would suggest to you for your comment that while we are here today with a different record before us it's largely based on years of the department of justice investigation that has over time it's a fair point although i would also suggest that there's nothing the precludes the senate if it has the opportunity to do another investigation which is different judgment that's a separate process and so the  action and i was not aware that the justice department took a close look at their representations made during the confirmation process and maybe they  or the senate but again i don't know that that's of any significance i think that the fact is you've got to take the evidence in the case that you've gotten is i suppose in my written testimony imagine somebody had committed a murder hear from the witness or witnesses that they would wish to call for discount so has informed the task force that they will not avail themselves of this opportunity the written statements of the witnesses today have made part of the record and i want to thank the witnesses for their testimony