U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

56–096 

" ! SENATE 

111TH CONGRESS

2d Session 

DOCUMENT

2010

111–13 

IMPEACHMENT OF 

JUDGE G. THOMAS PORTEOUS, JR. 

CONSTITUTIONAL PROVISIONS; RULES OF 

PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON IMPEACHMENT 

TRIALS; ARTICLES OF IMPEACHMENT 

AGAINST JUDGE G. THOMAS PORTEOUS, 

JR.; JUDGE PORTEOUS’ ANSWER; AND 

AMENDED REPLICATION OF THE HOUSE 

OF REPRESENTATIVES 

Printed at the direction of NANCY ERICKSON, Secretary of the Senate, 

pursuant to S. Res. 457, 111th Cong., 2d Sess. (2010) 

MARCH 17, 2010.—Ordered to be printed 


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TABLE OF CONTENTS 

Page 

I. S. Res. 457, 111th Cong., 2d Sess. (2010) ....................................................... 1 

II. Constitutional Provisions on Impeachment ................................................... 5 

III. Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials .................................................................................................... 7 

IV. Articles of Impeachment Against Judge G. Thomas Porteous, Jr. (H. 

Res. 1031, 111th Cong., 2d Sess. (2010)) .................................................... 15 

V. Answer of Judge G. Thomas Porteous, Jr., to Articles of Impeachment 25 

VI. Amended Replication of the House of Representatives to the Answer 

of Judge G. Thomas Porteous, Jr. ............................................................... 35 


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II. CONSTITUTIONAL PROVISIONS ON IMPEACHMENT 

The provisions of the United States Constitution which apply 

specifically to impeachment are as follows: 

Article I, Section 2, Clause 5 

The House of Representatives . . . shall have the sole Power 

of Impeachment. 

Article I, Section 3, Clauses 6 and 7 

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath 

or Affirmation. When the President of the United States is 

tried, the Chief Justice shall preside: And no Person shall be 

convicted without the Concurrence of two thirds of the Members present. 

Judgment in Cases of Impeachment shall not extend further 

than to removal from Office, and disqualification to hold and 

enjoy any Office of honor, Trust or Profit under the United 

States: but the Party convicted shall nevertheless be liable and 

subject to Indictment, Trial, Judgment and Punishment, according to Law. 

Article II, Section 2, Clause 1 

The President . . . shall have Power to grant Reprieves and 

Pardons for Offences against the United States, except in 

Cases of Impeachment. 

Article II, Section 4 

The President, Vice President and all civil Officers of the 

United States, shall be removed from Office on Impeachment 

for, and Conviction of, Treason, Bribery, or other high Crimes 

and Misdemeanors. 

Article III, Section 1 

. . . The Judges, both of the supreme and inferior Courts, 

shall hold their offices during good Behaviour, . . . 

Article III, Section 2, Clause 3 

The Trial of all Crimes, except in Cases of Impeachment, 

shall be by Jury; . . . 


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III. RULES OF PROCEDURE AND PRACTICE IN THE 

SENATE WHEN SITTING ON IMPEACHMENT TRIALS 

I. Whensoever the Senate shall receive notice from the House of 

Representatives that managers are appointed on their part to conduct an impeachment against any person and are directed to carry 

articles of impeachment to the Senate, the Secretary of the Senate 

shall immediately inform the House of Representatives that the 

Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment, agreeably to such notice. 

II. When the managers of an impeachment shall be introduced 

at the bar of the Senate and shall signify that they are ready to 

exhibit articles of impeachment against any person, the Presiding 

Officer of the Senate shall direct the Sergeant at Arms to make 

proclamation, who shall, after making proclamation, repeat the following words, viz: ‘‘All persons are commanded to keep silence, on 

pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment 

against ——— ————’’; after which the articles shall be exhibited, and then the Presiding Officer of the Senate shall inform the 

managers that the Senate will take proper order on the subject of 

the impeachment, of which due notice shall be given to the House 

of Representatives. 

III. Upon such articles being presented to the Senate, the Senate 

shall, at 1 o’clock afternoon of the day (Sunday excepted) following 

such presentation, or sooner if ordered by the Senate, proceed to 

the consideration of such articles and shall continue in session from 

day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be 

rendered, and so much longer as may, in its judgment, be needful. 

Before proceeding to the consideration of the articles of impeachment, the Presiding Officer shall administer the oath hereinafter 

provided to the Members of the Senate then present and to the 

other Members of the Senate as they shall appear, whose duty it 

shall be to take the same. 

IV. When the President of the United States or the Vice President of the United States, upon whom the powers and duties of the 

Office of President shall have devolved, shall be impeached, the 

Chief Justice of the United States shall preside; and in a case requiring the said Chief Justice to preside notice shall be given to 

him by the Presiding Officer of the Senate of the time and place 

fixed for the consideration of the articles of impeachment, as aforesaid, with a request to attend; and the said Chief Justice shall be 

administered the oath by the Presiding Officer of the Senate and 

shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached therein. 

V. The Presiding Officer shall have power to make and issue, by 

himself or by the Secretary of the Senate, all orders, mandates, 


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writs, and precepts authorized by these rules or by the Senate, and 

to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide. 

VI. The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way contempts of, and disobedience to, its authority, orders, 

mandates, writs, precepts, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice. And the Sergeant at Arms, under the 

direction of the Senate, may employ such aid and assistance as 

may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, writs, and precepts of the Senate. 

VII. The Presiding Officer of the Senate shall direct all necessary 

preparations in the Senate Chamber, and the Presiding Officer on 

the trial shall direct all the forms of proceedings while the Senate 

is sitting for the purpose of trying an impeachment, and all forms 

during the trial not otherwise specially provided for. And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and 

redundancy of evidence and incidental questions, which ruling 

shall stand as the judgment of the Senate, unless some Member of 

the Senate shall ask that a formal vote be taken thereon, in which 

case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such 

question to a vote of the Members of the Senate. Upon all such 

questions the vote shall be taken in accordance with the Standing 

Rules of the Senate. 

VIII. Upon the presentation of articles of impeachment and the 

organization of the Senate as hereinbefore provided, a writ of summons shall issue to the person impeached, reciting said articles, 

and notifying him to appear before the Senate upon a day and at 

a place to be fixed by the Senate and named in such writ, and file 

his answer to said articles of impeachment, and to stand to and 

abide the orders and judgments of the Senate thereon; which writ 

shall be served by such officer or person as shall be named in the 

precept thereof, such number of days prior to the day fixed for such 

appearance as shall be named in such precept, either by the delivery of an attested copy thereof to the person impeached, or if that 

cannot conveniently be done, by leaving such copy at the last 

known place of abode of such person, or at his usual place of business in some conspicuous place therein; or if such service shall be, 

in the judgment of the Senate, impracticable, notice to the person 

impeached to appear shall be given in such other manner, by publication or otherwise, as shall be deemed just; and if the writ aforesaid shall fail of service in the manner aforesaid, the proceedings 

shall not thereby abate, but further service may be made in such 

manner as the Senate shall direct. If the person impeached, after 

service, shall fail to appear, either in person or by attorney, on the 

day so fixed thereof as aforesaid, or, appearing, shall fail to file his 

answer to such articles of impeachment, the trial shall proceed, 

nevertheless, as upon a plea of not guilty. If a plea of guilty shall 

be entered, judgment may be entered thereon without further proceedings. 


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IX. At 12:30 o’clock afternoon of the day appointed for the return 

of the summons against the person impeached, the legislative and 

executive business of the Senate shall be suspended, and the Secretary of the Senate shall administer an oath to the returning officer in the form following, viz: ‘‘I, ——— ———, do solemnly swear 

that the return made by me upon the process issued on the ——— 

day of ———, by the Senate of the United States, against ——— 

——— is truly made, and that I have performed such service as 

therein described: So help me God.’’ Which oath shall be entered 

at large on the records. 

X. The person impeached shall then be called to appear and answer the articles of impeachment against him. If he appears, or 

any person for him, the appearance shall be recorded, stating particularly if by himself, or by agent or attorney, naming the person 

appearing and the capacity in which he appears. If he does not appear, either personally or by agent or attorney, the same shall be 

recorded. 

XI. That in the trial of any impeachment the Presiding Officer 

of the Senate, if the Senate so orders, shall appoint a committee 

of Senators to receive evidence and take testimony at such times 

and places as the committee may determine, and for such purpose 

the committee so appointed and the chairman thereof, to be elected 

by the committee, shall (unless otherwise ordered by the Senate) 

exercise all the powers and functions conferred upon the Senate 

and the Presiding Officer of the Senate, respectively, under the 

rules of procedure and practice in the Senate when sitting on impeachment trials. 

Unless otherwise ordered by the Senate, the rules of procedure 

and practice in the Senate when sitting on impeachment trials 

shall govern the procedure and practice of the committee so appointed. The committee so appointed shall report to the Senate in 

writing a certified copy of the transcript of the proceedings and testimony had and given before such committee, and such report shall 

be received by the Senate and the evidence so received and the testimony so taken shall 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, but nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate, or 

by order of the Senate having the entire trial in open Senate. 

XII. At 12:30 o’clock afternoon, or at such other hour as the Senate may order, of the day appointed for the trial of an impeachment, the legislative and executive business of the Senate shall be 

suspended, and the Secretary shall give notice to the House of Representatives that the Senate is ready to proceed upon the impeachment of ——— ———, in the Senate Chamber. 

XIII. The hour of the day at which the Senate shall sit upon the 

trial of an impeachment shall be (unless otherwise ordered) 12 

o’clock m.; and when the hour shall arrive, the Presiding Officer 

upon such trial shall cause proclamation to be made, and the business of the trial shall proceed. The adjournment of the Senate sitting in said trial shall not operate as an adjournment of the Senate; but on such adjournment the Senate shall resume the consideration of its legislative and executive business. 


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XIV. The Secretary of the Senate shall record the proceedings in 

cases of impeachment as in the case of legislative proceedings, and 

the same shall be reported in the same manner as the legislative 

proceedings of the Senate. 

XV. Counsel for the parties shall be admitted to appear and be 

heard upon an impeachment. 

XVI. All motions, objections, requests, or applications whether relating to the procedure of the Senate or relating immediately to the 

trial (including questions with respect to admission of evidence or 

other questions arising during the trial) made by the parties or 

their counsel shall be addressed to the Presiding Officer only, and 

if he, or any Senator, shall require it, they shall be committed to 

writing, and read at the Secretary’s table. 

XVII. Witnesses shall be examined by one person on behalf of the 

party producing them, and then cross-examined by one person on 

the other side. 

XVIII. If a Senator is called as a witness, he shall be sworn, and 

give his testimony standing in his place. 

XIX. If a Senator wishes a question to be put to a witness, or to 

a manager, or to counsel of the person impeached, or to offer a motion or order (except a motion to adjourn), it shall be reduced to 

writing, and put by the Presiding Officer. The parties or their counsel may interpose objections to witnesses answering questions propounded at the request of any Senator and the merits of any such 

objection may be argued by the parties or their counsel. Ruling on 

any such objection shall be made as provided in Rule VII. It shall 

not be in order for any Senator to engage in colloquy. 

XX. At all times while the Senate is sitting upon the trial of an 

impeachment the doors of the Senate shall be kept open, unless the 

Senate shall direct the doors to be closed while deliberating upon 

its decisions. A motion to close the doors may be acted upon without objection, or, if objection is heard, the motion shall be voted on 

without debate by the yeas and nays, which shall be entered on the 

record. 

XXI. All preliminary or interlocutory questions, and all motions, 

shall be argued for not exceeding one hour (unless the Senate otherwise orders) on each side. 

XXII. The case, on each side, shall be opened by one person. The 

final argument on the merits may be made by two persons on each 

side (unless otherwise ordered by the Senate upon application for 

that purpose), and the argument shall be opened and closed on the 

part of the House of Representatives. 

XXIII. An article of impeachment shall not be divisible for the 

purpose of voting thereon at any time during the trial. Once voting 

has commenced on an article of impeachment, voting shall be continued until voting has been completed on all articles of impeachment unless the Senate adjourns for a period not to exceed one day 

or adjourns sine die. On the final question whether the impeachment is sustained, the yeas and nays shall be taken on each article 

of impeachment separately; and if the impeachment shall not, upon 

any of the articles presented, be sustained by the votes of twothirds of the Members present, a judgment of acquittal shall be entered; but if the person impeached shall be convicted upon any 

such article by the votes of two-thirds of the Members present, the 


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Senate may proceed to the consideration of such other matters as 

may be determined to be appropriate prior to pronouncing judgment. Upon pronouncing judgment, a certified copy of such judgment shall be deposited in the office of the Secretary of State. A 

motion to reconsider the vote by which any article of impeachment 

is sustained or rejected shall not be in order. 

Form of putting the question on each article of impeachment 

The Presiding Officer shall first state the question; thereafter 

each Senator, as his name is called, shall rise in his place and answer: guilty or not guilty. 

XXIV. All the orders and decisions may be acted upon without 

objection, or, if objection is heard, the orders and decisions shall be 

voted on without debate by yeas and nays, which shall be entered 

on the record, subject, however, to the operation of Rule VII, except 

when the doors shall be closed for deliberation, and in that case no 

Member shall speak more than once on one question, and for not 

more than ten minutes on an interlocutory question, and for not 

more than fifteen minutes on the final question, unless by consent 

of the Senate, to be had without debate; but a motion to adjourn 

may be decided without the yeas and nays, unless they be demanded by one-fifth of the Members present. The fifteen minutes 

herein allowed shall be for the whole deliberation on the final question, and not on the final question on each article of impeachment. 

XXV. Witnesses shall be sworn in the following form, viz: ‘‘You, 

——— ———, do swear (or affirm, as the case may be) that the evidence you shall give in the case now pending between the United 

States and ——— ———, shall be the truth, the whole truth, and 

nothing but the truth: So help you God.’’ Which oath shall be administered by the Secretary, or any other duly authorized person. 

Form of a subpena to be issued on the application of the managers 

of the impeachment, or of the party impeached, or of his counsel 

To ——— ———, greeting: 

You and each of you are hereby commanded to appear before the 

Senate of the United States, on the —— day of ——, at the Senate 

Chamber in the city of Washington, then and there to testify your 

knowledge in the cause which is before the Senate in which the 

House of Representatives have impeached ——— ———. 

Fail not. 

Witness ——— ———, and Presiding Officer of the Senate, at 

the city of Washington, this —— day of ——, in the year of our 

Lord ——, and of the Independence of the United States the ——. 

———— ————, 

Presiding Officer of the Senate. 

Form of direction for the service of said subpena 

The Senate of the United States to ——— ———, greeting: 

You are hereby commanded to serve and return the within subpena according to law. 


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Dated at Washington, this —— day of ——, in the year of our 

Lord ———, and of the Independence of the United States the 

——. ———— ————, 

Secretary of the Senate. 

Form of oath to be administered to the Members of the Senate and 

the Presiding Officer sitting in the trial of impeachments 

‘‘I solemnly swear (or affirm, as the case may be) that in all 

things appertaining to the trial of the impeachment of ——— 

———, now pending, I will do impartial justice according to the 

Constitution and laws: So help me God.’’ 

Form of summons to be issued and served upon the person 

impeached 

THE UNITED STATES OF AMERICA, SS: 

The Senate of the United States to ———— ———, greeting: 

Whereas the House of Representatives of the United States of 

America did, on the —— day of ——, exhibit to the Senate articles 

of impeachment against you, the said ——— ———, in the words 

following: 

[Here insert the articles] 

And demand that you, the said ——— ———, should be put to answer the accusations as set forth in said articles, and that such 

proceedings, examinations, trials, and judgments might be thereupon had as are agreeable to law and justice. 

You, the said ——— ———, are therefore hereby summoned to 

be and appear before the Senate of the United States of America, 

at their Chamber in the city of Washington, on the —— day of 

——, at —— o’clock ——, then and there to answer to the said articles of impeachment, and then and there to abide by, obey, and 

perform such orders, directions, and judgments as the Senate of the 

United States shall make in the premises according to the Constitution and laws of the United States. 

Hereof you are not to fail. 

Witness ——— ———, and Presiding Officer of the said Senate, 

at the city of Washington, this —— day of ——, in the year of our 

Lord ——, and of the Independence of the United States the 

———. 

———— ————, 

Presiding Officer of the Senate. 

Form of precept to be indorsed on said writ of summons 

THE UNITED STATES OF AMERICA, SS: 

The Senate of the United States to ——— ———, greeting: 

You are hereby commanded to deliver to and leave with ——— 

———, if conveniently to be found, or if not, to leave at his usual 

place of abode, or at his usual place of business in some conspicuous place, a true and attested copy of the within writ of summons, together with a like copy of this precept; and in whichsoever 

way you perform the service, let it be done at least —— days before 

the appearance day mentioned in the said writ of summons. 


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Fail not, and make return of this writ of summons and precept, 

with your proceedings thereon indorsed, on or before the appearance day mentioned in the said writ of summons. 

Witness ——— ———, and Presiding Officer of the Senate, at 

the city of Washington, this —— day of ——, in the year of our 

Lord ——, and of the Independence of the United States the ——. 

———— ————, 

Presiding Officer of the Senate. 

All process shall be served by the Sergeant at Arms of the Senate, unless otherwise ordered by the Senate. 

XXVI. If the Senate shall at any time fail to sit for the consideration of articles of impeachment on the day or hour fixed therefor, 

the Senate may, by an order to be adopted without debate, fix a 

day and hour for resuming such consideration. 


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V. ANSWER OF JUDGE G. THOMAS PORTEOUS, JR. TO 

THE ARTICLES OF IMPEACHMENT 

The Honorable G. Thomas Porteous, Jr., a Judge of the United 

States District Court for the Eastern District of Louisiana, as commanded by the summons of the Senate of the United States, answers the accusations made by the House of Representatives of the 

United States in the four Articles of Impeachment it has exhibited 

to the Senate as follows: 

PREAMBLE

THE HOUSE OF REPRESENTATIVES’ IMPEACHMENT OF JUDGE

PORTEOUS IS UNPRECEDENTED AND UNJUSTIFIED

For the first time in modern history, the House of Representatives has impeached a sitting Article III Judge who has never been 

charged with a crime. Indeed, it has been more than 74 years since 

the House of Representatives has brought Articles of Impeachment 

against a judge that were not preceded by that judge’s indictment 

in the criminal courts. The Articles of Impeachment brought 

against Judge Porteous are also unprecedented in two additional 

ways. First, this is the only time since the ratification of the Constitution that the House of Representatives has brought Articles of 

Impeachment against a judge after the Executive Branch, having 

conducted a thorough investigation, has declined to prosecute. Second, it is the only time in the same period that the House of Representatives has based an Article of Impeachment against a judge, 

or any other officer, upon allegations that pre-date his or her entry 

into federal office. 

These actions are unprecedented and they are also unjustified by 

the facts of this case. The four Articles of Impeachment do not allege a single offense that supports the conviction and removal of a 

sitting Article III Judge under the impeachment clause of the Constitution. Article II, Section 4 of the Constitution provides that the 

civil officers shall be removed from office only upon ‘‘Impeachment 

for, and Conviction of, Treason, Bribery or other high Crimes and 

Misdemeanors.’’ The charges in the articles against Judge Porteous 

do not rise to the constitutionally required level of ‘‘high Crimes 

and Misdemeanors.’’ Indeed, in some instances, the Articles allege 

violations of the canons of judicial ethics or criticize Judge 

Porteous’ handling of matters before the Court. While Judge 

Porteous vehemently denies violating those canons or mishandling 

matters, noncriminal ethical violations or incorrect decisions have 

never been found to be a sufficient basis for conviction and removal 

from office. Such issues simply do not rise to the level of ‘‘high 

Crimes and Misdemeanors’’ as contemplated by the Framers. To 

the extent that a trial on the Articles in this case is permitted to 

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ment precedent—such acts into grounds for removal of an Article 

III Judge, it will set a new standard. A standard that treads deeply 

and dangerously into the realm of an independent judiciary that 

was at the very core of the Framers’ vision of three co-equal 

branches of government. 

In devising the three branches, the Framers divided the ability 

to impeach and remove Executive and Judicial Branch officers between the House of Representatives and the Senate. By doing so, 

the Framers, through the Constitution, empowered the House to allege the standard for impeachment based upon the language of the 

impeachment clause. But history has shown the power to impeach 

is not the power to remove. The power to try impeachments and 

remove officers upon conviction was vested solely in the Senate. It 

is the Senate—a uniquely deliberative body, free from the passions 

and prejudices of the majority—that sits in judgment and determines whether a given Article of Impeachment is sufficient, both 

legally and factually, to justify the removal of an Article III Judge. 

In striking this careful balance, the Framers made clear that the 

trial and removal process is not one that should embrace unprecedented or novel impeachments. In vesting the power in the Senate, 

the Framers’ intent was that the process would not be exercised 

easily or quickly, but carefully and deliberately. The Framers, 

through the Constitution, positioned the Senate along the path between the possibility of ill-considered and novel uses of the power 

to impeach and the decision to remove, confident that the Senate 

would stand as a safeguard against removal when constitutional 

standards had not been met. The Articles of Impeachment returned 

by the House are unprecedented, unjustified, and fail to meet the 

constitutionally required standard. Accordingly, Judge Porteous, in 

answer, asks the Senate to fulfill its constitutionally mandated role 

by dismissing the articles or, alternatively, acquitting him of the 

charges. 

GENERAL DENIAL OF FACTS NOT ADMITTED

Judge Porteous denies each and every material allegation of the 

four Articles of Impeachment not specifically admitted in this ANSWER. 

ARTICLE I 

ANSWER TO ARTICLE I

Without waiving his affirmative defenses, Judge Porteous admits 

that he presided as a United States District Judge over the 

Lifemark Hospitals of Louisiana, Inc. v. Liljeberg Enterprises litigation and that on October 17, 1996, he denied a motion seeking to 

recuse him from presiding over the case. Judge Porteous denies 

that he engaged in any corrupt conduct in connection with his handling of the litigation or in denying the motion for recusal. Judge 

Porteous denies that he intentionally made any misleading statements during the recusal hearing. Judge Porteous also denies engaging in a corrupt scheme of any sort with Jacob Amato, Jr. and 

Robert Creely and that he, at any time, deprived the parties or the 

public of the right to the honest services of his office. Judge 

Porteous further denies that he engaged in any corrupt conduct 


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after the bench trial in Lifemark Hospitals of Louisiana, Inc. v. 

Liljeberg Enterprises or at any time while the case was under advisement. 

FIRST AFFIRMATIVE DEFENSE TO ARTICLE I

Article I does not allege an offense that supports the conviction 

and removal of a sitting Article III United States District Judge 

under the impeachment clause of the Constitution. Article II, Section 4 of the Constitution provides that the civil officers shall be 

removed from office only upon ‘‘Impeachment for, and Conviction 

of, Treason, Bribery or other high Crimes and Misdemeanors.’’ The 

charges in the articles against Judge Porteous do not rise to the 

constitutionally required level of ‘‘high Crimes and Misdemeanors.’’ 

Because Article I does not meet the rigorous constitutional standard for conviction and removal, it should be dismissed. 

SECOND AFFIRMATIVE DEFENSE TO ARTICLE I

Article I is unconstitutionally vague. No reasonable person could 

know what specific charges are being leveled against Judge 

Porteous or what allegations rise to the level of ‘‘high Crimes and 

Misdemeanors’’ as required by the Constitution. In essence, Article 

I alleges that Judge Porteous took several judicial actions while 

presiding as a United States District Judge in Lifemark Hospitals 

of Louisiana, Inc. v. Liljeberg Enterprises, including failing to grant 

a recusal motion and failing to disclose certain facts. In doing so, 

the Article alleges that Judge Porteous ‘‘deprived the parties and 

the public of the right to the honest services of his office.’’ This 

‘‘deprivation of the right to honest services’’ language is borrowed 

from Title 18, United States Code, Section 1346, a statute that is 

fraught with vagueness concerns. Indeed, its constitutional viability is currently pending before the United States Supreme Court in 

a series of cases. See Weyhrauch v. United States, No. 08–1196; 

Black v. United States, No. 08–876; and Skilling v. United States, 

No. 08–1394. The inclusion of this standard, as well as the nonspecific allegations regarding the allegedly improper judicial actions 

taken by Judge Porteous, render Article I unconstitutionally vague. 

It is a fundamental principle of our law and the Constitution 

that a person has a right to know what specific charges he is facing. Without such notice, no one can prepare the defense to which 

every person is entitled. The law and the Constitution also require 

that the charges provide adequate notice to jurors so they may 

know the basis for the vote they must make. Without a definite 

and specific identification of specific ‘‘high Crime and Misdemeanor’’ upon which the Article of Impeachment is grounded, a 

trial becomes a moving target for the accused. 

Article I fails to provide the required definite and specific identification. As an article of impeachment, it is constitutionally defective and should be dismissed. 

THIRD AFFIRMATIVE DEFENSE TO ARTICLE I

Article I is fatally flawed because it charges multiple instances 

of allegedly corrupt conduct in a single article. The Constitution 

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rence of two thirds of the Members present.’’ Senate Rule XXIII 

provides that ‘‘an article of impeachment shall not be divisible for 

the purpose of voting thereon at any time during the trial.’’ 

Despite these clear pronouncements, the House of Representatives, in Article I, has alleged a series of allegedly wrongful acts. 

In doing so, the House of Representatives has returned an Article 

of Impeachment which might permit a Senator to vote for impeachment if he or she finds that Judge Porteous committed even a single allegedly wrongful act, even where two-thirds of the Senators 

do not agree on which wrongful act was committed. This creates 

the very real possibility that conviction could occur even though 

Senators were in wide disagreement as to the alleged wrong committed. The structure of Article I presents the possibility that 

Judge Porteous could be convicted even though he would have been 

acquitted if separate votes were taken on each allegedly wrongful 

acts included in the article. As written, Article I does not require 

the constitutionally required number of Senators to agree on the 

specific conduct forming the basis for conviction and removal. By 

charging multiple wrongs in one article, the House of Representatives has made it impossible for the Senate to comply with the Constitutional mandate that any conviction be by the concurrence of 

two-thirds of the members. Accordingly, Article I should fail. 

FOURTH AFFIRMATIVE DEFENSE TO ARTICLE I

Article I was returned by the House of Representatives in violation of Judge Porteous’ constitutional rights in that it is based, in 

part, upon his compelled testimony provided under a grant of immunity. Because the process of impeachment, conviction and removal is a quasi-criminal one and under the circumstances here, 

Judge Porteous has constitutional rights that are violated by the 

use of his prior compelled, immunized testimony, Article I must be 

dismissed. Further, because the immunity grant by Judge Edith 

Jones, Chief Judge of the Fifth Circuit Court of Appeals and Chair 

of the Special Committee of the Judicial Conference of the Fifth 

Circuit, was not proper under the immunity statute, the compelled 

testimony was wrongly procured and any Article of Impeachment 

based upon that testimony must be dismissed. 

ARTICLE II 

ANSWER TO ARTICLE II

Without waiving his affirmative defenses, Judge Porteous denies 

that he engaged in a longstanding pattern of corrupt conduct demonstrating his unfitness to serve as a United States District Court 

Judge as alleged in Article II. Judge Porteous further denies that 

he improperly set aside or expunged felony convictions for two Marcotte employees. Judge Porteous also denies that he at any time 

took any action in his capacity as a United States District Judge 

that related in any way to the Marcottes or their business interests. 

FIRST AFFIRMATIVE DEFENSE TO ARTICLE II

Article II does not allege an offense that supports the conviction 

and removal of a sitting Article III United States District Judge 


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under the impeachment clause of the Constitution. Article II, Section 4 of the Constitution provides that the civil officers shall be 

removed from office only upon ‘‘Impeachment for, and Conviction 

of, Treason, Bribery or other high Crimes and Misdemeanors.’’ The 

charges in the articles against Judge Porteous do not rise to the 

constitutionally required level of ‘‘high Crimes and Misdemeanors.’’ 

Because Article II does not meet the rigorous constitutional standard for conviction and removal, it should be dismissed. 

SECOND AFFIRMATIVE DEFENSE TO ARTICLE II

Article II is unconstitutionally vague. No reasonable person could 

know what specific charges are being leveled against Judge 

Porteous or what allegations rise to the level of ‘‘high Crimes and 

Misdemeanors’’ as required by the Constitution. Article II alleges 

that Judge Porteous engaged in certain corrupt actions prior to his 

appointment and confirmation to the position of Un[it]ed States 

District Judge. Article II makes no specific allegations concerning 

actions taken by Judge Porteous while on the federal bench. Indeed, the only allegations concerning Judge Porteous tenure on the 

federal bench is that he in some unidentified way ‘‘used the power 

and prestige of his office to assist the Marcottes in forming relationships with State judicial officers and individuals important to 

the Marcottes’ business.’’ The vagueness problem here cannot be 

overstated. It is simply not possible to begin to defend against this 

type of allegation. It is wholly lacking in any factual basis and 

clearly fails to frame a set of facts that amount to ‘‘high Crimes 

and Misdemeanors.’’ 

As we set forth in the SECOND AFFIRMATIVE DEFENSE TO 

ARTICLE I, it is a fundamental principle of our law and the Constitution that a person has a right to know what specific charges 

he is facing. Without such notice, no one can prepare the defense 

to which every person is entitled. The law and the Constitution 

also require that the charges provide adequate notice to jurors so 

they may know the basis for the vote they must make. Without a 

definite and specific identification of specific ‘‘high Crime and Misdemeanor’’ upon which the Article of Impeachment is grounded, a 

trial becomes a moving target for the accused. 

Article II fails to provide the required definite and specific identification. As an article of impeachment, it is constitutionally defective and should be dismissed. 

THIRD AFFIRMATIVE DEFENSE TO ARTICLE II

For the reasons set forth in the THIRD AFFIRMATIVE DEFENSE TO ARTICLE I, Article II is constitutionally defective because it charges multiple alleged wrongs in a single article, which 

makes it impossible for the Senate to comply with the Constitutional mandate that any conviction be by the concurrence of the 

two-thirds of the members. Accordingly, Article II should fail. 

FOURTH AFFIRMATIVE DEFENSE TO ARTICLE II

Article II cannot support the conviction and removal of an Article 

III United States District Judge because the alleged conduct preceded Judge Porteous’ service as a United States District Judge. 


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The constitutional impeachment mechanism provides a procedure 

to remove a judge for the commission of ‘‘high Crimes and Misdemeanors’’ while in federal office. The impeachment precedents do 

not provide a single example of an Article of Impeachment that has 

ever been based upon conduct that allegedly occurred prior to the 

impeached officer’s entry into federal office. In contrast, the precedents suggest that while the House of Representatives may have 

investigated such allegations, that such conduct has never provided 

the basis for an impeachment and, significantly, the House has, on 

occasion, refused to take action because the allegations preceded 

the officer’s entry into federal service. Moreover, while Judge 

Porteous contends that any attempt to use Article III’s ‘‘good behaviour’’ clause to lower the standard necessary to impeach a federal judge is unsupported by the Constitution’s impeachment 

clause, the House has clearly applied that lower standard in returning the four Articles of Impeachment. To the extent that the 

House has relied on the ‘‘good behaviour’’ clause, that clause states 

that judges ‘‘shall hold their offices during good behaviour’’ and 

clearly relates to a judge’s conduct while in federal judicial office. 

Because the allegations of Article II relate to a period prior to 

Judge Porteous taking the federal bench, Article II must be dismissed. 

ARTICLE III 

ANSWER TO ARTICLE III

Without waiving his affirmative defenses, Judge Porteous denies 

that he knowingly and intentionally made material false statements and representatives in connection with his personal bankruptcy or that he knowingly and intentionally repeatedly violated 

a court order in his bankruptcy case. 

FIRST AFFIRMATIVE DEFENSE TO ARTICLE III

Article III does not allege an offense that supports the conviction 

and removal of a sitting Article III United States District Judge 

under the impeachment clause of the Constitution. Article II, Section 4 of the Constitution provides that the civil officers shall be 

removed from office only upon ‘‘Impeachment for, and Conviction 

of, Treason, Bribery or other high Crimes and Misdemeanors.’’ The 

charges in the articles against Judge Porteous do not rise to the 

constitutionally required level of ‘‘high Crimes and Misdemeanors.’’ 

Because Article III does not meet the rigorous constitutional standard for conviction and removal, it should be dismissed. 

SECOND AFFIRMATIVE DEFENSE TO ARTICLE III

Article III is unconstitutionally vague. No reasonable person 

could know what specific charges are being leveled against Judge 

Porteous or what allegations rise to the level of ‘‘high Crimes and 

Misdemeanors’’ as required by the Constitution. In essence, Article 

III alleges a number of actions taken by Judge Porteous in connection with his personal bankruptcy, but is unclear as to the specific 

acts that are claimed to violate the constitutional standard. Moreover, it also does not clearly state the specific allegations regarding 


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what transaction Judge Porteous concealed during the bankruptcy 

process or what new debts he allegedly incurred. 

As we set forth in the SECOND AFFIRMATIVE DEFENSE TO 

ARTICLE I, it is a fundamental principle of our law and the Constitution that a person has a right to know what specific charges 

he is facing. Without such notice, no one can prepare the defense 

to which every person is entitled. The law and the Constitution 

also require that the charges provide adequate notice to jurors so 

they may know the basis for the vote they must make. Without a 

definite and specific identification of specific ‘‘high Crime and Misdemeanor’’ upon which the Article of Impeachment is grounded, a 

trial becomes a moving target for the accused. 

Article III fails to provide the required definite and specific identification. As an article of impeachment, it is constitutionally defective and should be dismissed. 

THIRD AFFIRMATIVE DEFENSE TO ARTICLE III

For the reasons set forth in the THIRD AFFIRMATIVE DEFENSE TO ARTICLE I, Article III is constitutionally defective because it charges multiple alleged wrongs in a single article, which 

makes it impossible for the Senate to comply with the Constitutional mandate that any conviction be by the concurrence of the 

two-thirds of the members. Accordingly, Article III should fail. 

FOURTH AFFIRMATIVE DEFENSE TO ARTICLE III

For the reasons set forth in the FOURTH AFFIRMATIVE DEFENSE TO ARTICLE I, Article III was returned by the House of 

Representatives in violation of Judge Porteous’ constitutional rights 

in that it is based, in part, upon his compelled testimony provided 

under a grant of immunity. Because the process of impeachment, 

conviction and removal is a quasi-criminal one and under the circumstances here, Judge Porteous has constitutional rights that are 

violated by the use of his prior compelled, immunized testimony, 

Article I must be dismissed. Further, because the immunity grant 

by Judge Edith Jones, Chief Judge of the Fifth Circuit Court of Appeals and Chair of the Special Committee of the Judicial Conference of the Fifth Circuit, was not proper under the immunity 

statute, the compelled testimony was wrongly procured and any Article of Impeachment based upon that testimony must be dismissed. 

FIFTH AFFIRMATIVE DEFENSE TO ARTICLE III

The allegations in Article III do not rise to the level of ‘‘high 

Crimes and Misdemeanors’’ because they address purely personal 

conduct that is not criminal. Prior impeachment precedent has 

never before sought to convict and remove a judge from office based 

upon personal non-criminal conduct. The very nature of the impeachment process is focused first and foremost upon the official 

actions of judges. Where allegations in the Articles of Impeachment 

address non-official personal acts by judges, longstanding precedent 

has limited ‘‘high Crimes and Misdemeanors’’ to those personal acts 

that are also indictable offenses. Article III ignores this precedent 

in seeking to convict and remove Judge Porteous from office for 


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non-official, non-criminal acts. While it is possible that the House 

of Representatives would claim that the actions taken in relation 

to the personal bankruptcy were indictable offenses, this claim 

would conflict with the multi-year investigation of the United 

States Department of Justice which concluded that prosecution was 

not warranted in light of the concern that the issues related to the 

bankruptcy were not material. It would also conflict with the criminal bankruptcy statu[t]es, which require that any alleged false 

statement not be made simply knowingly or willfully, but fraudulently, before criminal liability may attach to such conduct. In 

framing Article III, the House of Representatives is seeking to convict and remove a sitting United States District Judge based upon 

a lowered standard, one that does not constitute ‘‘high Crimes and 

Misdemeanors,’’ and one that has never before provided a basis for 

impeachment, much less conviction and removal from office. Article 

III of the Articles of Impeachment should be dismissed. 

ARTICLE IV 

ANSWER TO ARTICLE IV

Without waiving his affirmative defenses, Judge Porteous denies 

that he knowingly made material false statements in order to obtain the office of United States District Court Judge. 

FIRST AFFIRMATIVE DEFENSE TO ARTICLE IV

Article IV does not allege an offense that supports the conviction 

and removal of a sitting Article III United States District Judge 

under the impeachment clause of the Constitution. Article II, Section 4 of the Constitution provides that the civil officers shall be 

removed from office only upon ‘‘Impeachment for, and Conviction 

of, Treason, Bribery or other high Crimes and Misdemeanors.’’ The 

charges in the articles against Judge Porteous do not rise to the 

constitutionally required level of ‘‘high Crimes and Misdemeanors.’’ 

Because Article IV does not meet the rigorous constitutional standard for conviction and removal, it should be dismissed. 

SECOND AFFIRMATIVE DEFENSE TO ARTICLE IV

Article IV is unconstitutionally vague. No reasonable person 

could know what specific charges are being leveled against Judge 

Porteous or what allegations rise to the level of ‘‘high Crimes and 

Misdemeanors’’ as required by the Constitution. In essence, Article 

IV alleges that Judge Porteous gave false answers on various forms 

that were presented in connection with the background investigation that was used to evaluate his appointment and confirmation 

as a United States District Judge. However, it is not clear whether 

Article IV contends that simply providing a single one of the alleged false statements is a ‘‘high Crime or Misdemeanor’’ or whether the ‘‘high Crime or Misdemeanor’’ is based upon all of the acts 

alleged, i.e., several alleged false statements and other conduct alleged. Moreover, the nature of the questions on the forms that are 

the focus of this Article themselves add to the vagueness problem. 

As we set forth in the SECOND AFFIRMATIVE DEFENSE TO 

ARTICLE I, it is a fundamental principle of our law and the Constitution that a person has a right to know what specific charges 


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he is facing. Without such notice, no one can prepare the defense 

to which every person is entitled. The law and the Constitution 

also require that the charges provide adequate notice to jurors so 

they may know the basis for the vote they must make. Without a 

definite and specific identification of specific ‘‘high Crime and Misdemeanor’’ upon which the Article of Impeachment is grounded, a 

trial becomes a moving target for the accused. 

Article IV fails to provide the required definite and specific identification. As an article of impeachment, it is constitutionally defective and should be dismissed. 

THIRD AFFIRMATIVE DEFENSE TO ARTICLE IV

For the reasons set forth in the THIRD AFFIRMATIVE DEFENSE TO ARTICLE I, Article IV is constitutionally defective because it charges multiple instances of alleged acts of making false 

statements in one article, which makes it impossible for the Senate 

to comply with the Constitutional mandate that any conviction be 

by the concurrence of the two-thirds of the members. Accordingly, 

Article IV should fail. 

FOURTH AFFIRMATIVE DEFENSE TO ARTICLE IV

Article IV cannot support the conviction and removal of an Article III United States District Judge because the alleged conduct 

preceded Judge Porteous’ service as a United States District Judge. 

The constitutional impeachment mechanism provides a procedure 

to remove a judge for the commission of ‘‘high Crimes and Misdemeanors’’ while in federal office. The impeachment precedents do 

not provide a single example of an Article of Impeachment that has 

ever been based upon conduct that allegedly occurred prior to the 

impeached officer’s entry into federal office. In contrast, the precedents suggest that while the House of Representatives may have 

investigated such allegations, that such conduct has never provided 

the basis for an impeachment and, significantly, the House has, on 

occasion, refused to take action because the allegations preceded 

the officer’s entry into federal service. Moreover, while Judge 

Porteous contends that any attempt to use Article III’s ‘‘good behaviour’’ clause to lower the standard necessary to impeach a federal judge is unsupported by the Constitution’s impeachment 

clause, the House has clearly applied that lower standard in returning the four Articles of Impeachment. To the extent that the 

House has relied on the ‘‘good behaviour’’ clause, that clause states 

that judges ‘‘shall hold their offices during good behaviour’’ and 

clearly relates to a judge’s conduct while in federal judicial office. 

Because the allegations of Article IV relate to a period prior to 

Judge Porteous taking the federal bench, Article IV must be dismissed. 

Respectfully submitted, 

RICHARD W. WESTLING, 

CHELSEA S. RICE, 

JACKSON B. BOYD, 

ANTHONY J. BURBA, 

Ober, Kaler, Grimes & 

Shriver, P.C. 

1401 H Street, NW. 


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Suite 500 

Washington, D.C. 20005. 

SAMUEL S. DALTON, 

Attorney at Law, 

2001 Jefferson Highway 

P.O. Box 10501 

Jefferson, LA 70181–0501. 

RE ́MY VOISIN STARNS, 

Attorney At Law PLLC 

2001 Jefferson Highway 

P.O. Box 10501 

Jefferson, LA 70181–0501. 

COUNSEL FOR G. THOMAS

PORTEOUS, JR. 

United States District Judge 

for the Eastern District of 

Louisiana. 

Submitted: April 7, 2010. 


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1 Judge Harry E. Claiborne was acquitted of Article III, charging that he ‘‘was found guilty 

by a twelve-person jury’’ of criminal violations of the tax code, and that ‘‘a judgement of conviction was entered against [him].’’ See ‘‘Impeachment of Harry E. Claiborne,’’ H. Res. 471, 99th 

Cong., 2d Sess. (1986) (Articles of Impeachment); 132 Cong. Rec. S15761 (daily ed. Oct. 9, 1986) 

(acquitting him on Article III). 

VI. AMENDED REPLICATION OF THE HOUSE OF REPRESENTATIVES TO THE ANSWER OF G. THOMAS 

PORTEOUS, JR., TO THE ARTICLES OF IMPEACHMENT 

The House of Representatives, through its Managers and counsel, respectfully replies to the Answer to Articles of Impeachment 

as follows: 

RESPONSE TO THE PREAMBLE

Judge Porteous in his Answer to the Articles of Impeachment, 

denies certain of the allegations and makes what are primarily 

technical arguments as to the charging language that do not address the factual substance of the allegations. However, it is in 

Judge Porteous’s Preamble that he sets forth his real defense and, 

without denying he committed the conduct that is alleged in the 

Articles of Impeachment, insists that nevertheless he should not be 

removed from Office, 

At several points in his Preamble, Judge Porteous notes that he 

was not criminally prosecuted by the Department of Justice, the 

implication being that the House and the Senate should abdicate 

their Constitutionally assigned roles of deciding whether the conduct of a Federal judge rises to the level of a high crime or misdemeanor and warrants the Judge’s removal, and should instead 

defer to the Department of Justice on this issue. Judge Porteous 

maintains that impeachment and removal may only proceed upon 

conduct that resulted in a criminal prosecution, no matter how corrupt the conduct at issue, or what reasons explain the Department’s decision not to prosecute. Judge Porteous provides no support for this contention because there is none—that is not what the 

Constitution provides. 

Indeed, the Senate has by its prior actions made it clear that the 

decision as to whether a Judge’s conduct warrants his removal 

from Office is the Constitutional prerogative of the Senate—not the 

Department of Justice—and the existence of a successful (or even 

an unsuccessful) criminal prosecution is irrelevant to the Senate’s 

decision. The Senate has convicted and removed a Federal judge 

who was acquitted at a criminal trial (Judge Alcee Hastings). The 

Senate has also convicted a Federal judge for personal financial 

misconduct (Judge Harry Claiborne) while at the same time acquitting that same Judge of the Article that was based specifically on 

the fact of his criminal conviction.1 Thus, Judge Porteous’s repeated references to what the Department of Justice did or did not 


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2Moreover, the Department of Justice’s investigation hardly vindicated Judge Porteous. To 

the contrary, the Department viewed Judge Porteous’s misconduct as so significant that it referred the matter to the Fifth Circuit for disciplinary review and potential impeachment, and 

set forth its findings in its referral letter. 

do adds nothing to the Senate’s evaluation of the charges or the 

facts in this case.2

Further, according to Judge Porteous, pre-Federal bench conduct 

cannot be the basis of Impeachment, even if that conduct consisted 

of egregious corrupt activities that was beyond the reach of criminal prosecution because the statute of limitations had run, and 

even if Judge Porteous fraudulently concealed that conduct from 

the Senate and the White House at the time of his nomination and 

confirmation. There is nothing in the Constitution to support this 

contention, and it flies in the face of common sense. The Senate is 

entitled to conclude that Judge Porteous’s pre-Federal bench conduct reveals him to have been a corrupt state judge with his hand 

out under the table to bail bondsmen and lawyers. Such conduct, 

which, as alleged in Articles I and II, continued into his Federal 

bench tenure, demonstrates that he is not fit to be a Federal judge. 

Finally, the notion that Judge Porteous is entitled to maintain a 

lifetime position of Federal judge that he obtained by acts that included making materially false statements to the United States 

Senate is untenable. Judge Porteous would turn the confirmation 

process into a sporting contest, in which, if he successfully were to 

conceal his corrupt background prior to the Senate vote and thereby obtain the position of a Federal judge, he is home free and the 

Senate cannot remove him. 

ARTICLE I 

The House of Representatives denies each and every statement 

in the Answer to Article I that denies the acts, knowledge, intent 

or wrongful conduct charged against Respondent. 

FIRST AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense and further states that Article 

I sets forth an impeachable offense as defined in the Constitution 

of the United States. 

SECOND AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, namely, that Article I is 

vague. To the contrary, Article I sets forth several precise and narrow factual assertions associated with Judge Porteous’s handling of 

a civil case (the Liljeberg litigation), including allegations that 

Judge Porteous ‘‘denied a motion to recuse himself from the case, 

despite the fact that he had a corrupt financial relationship with 

the law firm of Amato & Creely, P.C. which had entered the case 

to represent Liljeberg’’ and that while that case was pending, 

Judge Porteous ‘‘solicited and accepted things of value from both 

Amato and his law partner Creely, including a payment of thousands of dollars in cash.’’ There is no vagueness whatsoever in 

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3 Judge Porteous treats Article I as if it alleges the criminal offense of ‘‘honest services fraud,’’ 

in violation of Title 18, United States Code, Section 1346, and that because the term ‘‘honest 

services’’ has been challenged as vague in the criminal context, the term is likewise vague as 

used in Article I. Despite Judge Porteous’s suggestion to the contrary, Article I does not allege 

a violation of the ‘‘honest services’’ statute. Moreover, it could hardly be contended that proof 

that Judge Porteous acted dishonestly in the performance of his official duties does not go to 

the very heart of the Senate’s determination of whether he is fit to hold office. 4The respective Articles of Impeachment against Judges Halsted L. Ritter, Harold 

Louderback, and Robert W. Archbald each set forth lengthy descriptions of judicial misconduct 

arising from improper financial relationships between those judges and the private parties. 

These consist of detailed narration specifying numerous discrete acts. See ‘‘Impeachment of 

Judge Halsted L. Ritter,’’ H. Res. 422, 74th Cong., 2d Sess. (March 2, 1936) and ‘‘Amendments 

to Articles of Impeachment Against Halsted L. Ritter,’’ H. Res. 471, 74th Cong., 2d Sess. (March 

30, 1936), reprinted in ‘‘Impeachment, Selected Materials, House Comm. on the Judiciary,’’ 

Comm. Print (1973) [hereinafter ‘‘1973 Committee Print’’] at 188–197 (H. Res. 422), 198–202 (H. 

Res. 471); [‘‘Articles of Impeachment against Judge Robert W. Archbald’’], H. Res. 622, 62d 

Cong., 2d Sess. (1912), 48 Cong Rec. (House) July 8, 1912 (8705–08), reprinted in 1973 Committee Print at 176; and [‘‘Articles of Impeachment against George W. English,’’] Cong. Rec. 

(House), Mar. 25, 1926 (6283–87), reprinted in 1973 Committee Print at 162. 5The Constitution makes it clear that impeachment was not considered by the Framers to 

be a criminal proceeding. It provides: ‘‘Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, 

Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and 

subject to Indictment, Trial, Judgment and Punishment, according to Law.’’ U.S. Const., Art. 

3, cl. 7. See also, United States v. Nixon. 506 U.S. 224, 234 (1993) (‘‘There are two additional 

reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any 

role in impeachments. First, the Framers recognized that most likely there would be two sets 

of proceedings for individuals who commit impeachable offenses—the impeachment trial and a 

separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. 

Continued 

prived the public and the Court of Appeals of his ‘‘honest services’’—a phrase to which Judge Porteous raises a particular objection—could not be more clear and free of ambiguity as used in this 

Article, and accurately describes Judge Porteous’s dishonesty in 

handling a case, including his distortion of the factual record so 

that his ruling on the recusal motion was not capable of appellate 

review.3

THIRD AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of the purported affirmative defense that Article I charges more 

than one offense. The plain reading of Article I is that Judge 

Porteous committed misconduct in his handling of the Liljeberg 

case by means of a course of conduct involving his financial relationships with the attorneys in that case and his failure to disclose 

those relationships or take other appropriate judicial action. The 

separate acts set forth in Article I constitute part of a single unified scheme involving Judge Porteous’s dishonesty in handling 

Liljeberg. Further, the charges in this Article are fully consistent 

with impeachment precedent.4

FOURTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, which, in effect, seeks to suppress the statements of a highly educated and experienced Federal 

judge, made under oath, before other Federal judges. Judge 

Porteous was provided a grant of immunity in connection with his 

Fifth Circuit Hearing testimony, and the immunity order provided 

that his testimony from that proceeding could not be used against 

him in ‘‘any criminal case.’’ Simply put, an impeachment trial is 

not a criminal case.5 Accordingly, there is simply no credible basis 


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. . . The Framers deliberately separated the two forums to avoid raising the specter of bias and 

to ensure independent judgments . . .’’). 6 As but one example, if the pre-Federal bench conduct consisted of treason, there could be 

no credible contention that such conduct would not provide a basis for impeachment. 

to argue that the Senate should not consider Judge Porteous’s immunized Fifth Circuit testimony. 

ANSWER TO ARTICLE II 

The House of Representatives denies each and every statement 

in the Answer to Article II that denies the acts, knowledge, intent 

or wrongful conduct charged against Respondent. 

FIRST AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense and further states that Article 

II sets forth an impeachable offense as defined in the Constitution 

of the United States. 

SECOND AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, namely, that the Article is 

vague. To the contrary, Article II sets forth several precise and narrow factual assertions associated with Judge Porteous’s relationship with the Marcottes—both prior to and subsequent to Judge 

Porteous taking the Federal bench. Article II alleges with specificity the things of value given to Judge Porteous over time and 

identifies the judicial or other acts taken by Judge Porteous for the 

benefit of the Marcottes and their business. 

THIRD AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, namely, that the Article improperly charges multiple offenses. The plain reading of Article II 

is that Judge Porteous engaged in a corrupt course of conduct 

whereby, over time, he solicited and accepted things of value from 

the Marcottes, and, in return, he took judicial acts or other acts 

while a judge to benefit the Marcottes and their business. 

FOURTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, namely, that Article II improperly charges pre-Federal bench conduct as a basis for impeachment. First, Article II plainly alleges that Judge Porteous’s corrupt 

relationship with the Marcottes continued while he was a Federal 

Judge. Second, Judge Porteous’s assertion that pre-Federal bench 

conduct may not form a basis for impeachment finds no support in 

the Constitution and is not supported by any other sound legal or 

logical basis.6 As a factual matter, it is especially appropriate for 

the Senate to consider Judge Porteous’s pre-Federal bench corrupt 

relationship with the Marcottes where it was affirmatively concealed from the Senate in the confirmation process, where it involved conduct as a judicial officer directly bearing on whether he 

was fit to hold a Federal judicial office, and where that conduct, 


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having now been exposed, brings disrepute and scandal to the Federal bench. 

ARTICLE III 

The House of Representatives denies each and every statement 

in the Answer to Article III that denies the acts, knowledge, intent 

or wrongful conduct charged against Respondent. 

FIRST AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense and further states that Article 

III sets forth an impeachable offense as defined in the Constitution 

of the United States. 

SECOND AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, which alleges in substance 

that the allegations in Article III are vague. To the contrary, Article III sets forth several specific allegations associated with Judge 

Porteous’s conduct in his bankruptcy proceedings. There is no credible contention that Judge Porteous cannot understand what he is 

charged with in this Article. 

THIRD AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, which alleges, in substance, 

that Article III charges more than one offense. The plain reading 

of Article III is that Judge Porteous committed misconduct in his 

bankruptcy proceeding by making a series of false statements and 

representations, and by incurring new debt in violation of a Federal Bankruptcy Court order. This Article alleges a single unified 

fraud scheme, with the purpose of deceiving the bankruptcy court 

and creditors as to his assets and his financial affairs, so that 

Judge Porteous could enjoy undisclosed wealth and income for personal purposes—including gambling. 

FOURTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, which, in effect, seeks to suppress the statements of a highly educated and experienced Federal 

judge, made under oath, before other Federal judges. Judge 

Porteous was provided a grant of immunity in connection with his 

Fifth Circuit Hearing testimony, effectively eliminating the possibility that any of that testimony could be used against him in any 

criminal case. An impeachment trial is not a criminal case. There 

is simply no credible basis to argue that the Senate should not consider Judge Porteous’s immunized Fifth Circuit testimony. 

FIFTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense—which does not take issue 

with the proposition that Judge Porteous committed misconduct in 

a Federal judicial bankruptcy proceeding, but contends only that 


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40 

7 It should be noted that Judge Porteous has testified and cross-examined witnesses at the 

Fifth Circuit Hearing on the subject of his bankruptcy, and the House therefore possesses evidence that was unavailable to the Department of Justice. 

the acts as alleged do not warrant impeachment. First, this is not 

an affirmative defense. It is up to the Senate to decide whether the 

facts surrounding the bankruptcy warrant impeachment. 

Second, the Senate has in fact removed a judge for personal financial misconduct, and in 1986 convicted Federal Judge Harry 

Claiborne and removed him from office for evading taxes. It is significant that the Senate did not convict Judge Claiborne for the 

crime of evading taxes. Rather, the Senate acquitted Judge Claiborne of the one Article that charged him with having committed 

and having been convicted of a crime. 

Third, what the Department of Justice may consider material for 

purposes of a criminal prosecution has nothing to do with what the 

Senate may deem to be material for purposes of determining 

whether Judge Porteous should be removed from Office—an Office 

which requires that he oversee bankruptcy cases and administer 

and enforce the oath to tell the truth.7

ARTICLE IV 

The House of Representatives denies each and every statement 

in the Answer to Article IV that denies the acts, knowledge, intent 

or wrongful conduct charged against Respondent. 

FIRST AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense and further states that Article 

IV sets forth an impeachable offense as defined in the Constitution 

of the United States. 

SECOND AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, which alleges the Article is 

vague. The allegations sets forth in Article IV are specific and precise. In fact, Judge Porteous’s description of the charge fairly characterizes the offense: ‘‘In essence, Article IV alleges that Judge 

Porteous gave false answers on various forms that were presented 

in connection with the background investigation . . . .’’ It is apparent, therefore, that Judge Porteous has a clear understanding of 

these allegations in Article IV, which specify the dates and circumstances when the statements were made, and the contents of 

the statements that are alleged to have been false. There is no 

credible contention that the Article IV does not provide Judge 

Porteous specific notice as to what this Article alleges. 

THIRD AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense. The allegation sets forth in 

Article IV are specific and precise. They charge in substance that 

Judge Porteous made a series of false statements to conceal the 

fact of his improper and corrupt relationships with the Marcottes 

and with attorneys Creely and Amato in order to procure the posiVerDate Mar 15 2010 21:06 Jun 17, 2010 Jkt 056096 PO 00000 Frm 00044 Fmt 6601 Sfmt 6602 E:\HR\OC\SD013.XXX SD013

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8 As but one example, Article III of the Articles of Impeachment against Judge Walter Nixon 

charged that he concealed material facts from the Federal Bureau of Investigation and the Department of Justice by making six, specified, false statements on April 18, 1984 at an interview, 

and by making seven discrete false statements under oath to the Grand Jury. ‘‘Impeachment 

of Walter L. Nixon, Jr.,’’ H. Res. 87, 101st Cong., 1st Sess. (1989) (Article III). 

tion of United States District Court Judge. Charging these four 

false statements, all involving a single issue, in a single Article is 

consistent with precedent.8

FOURTH AFFIRMATIVE DEFENSE

The House of Representatives denies each and every allegation 

of this purported affirmative defense, alleging that the Senate cannot impeach Judge Porteous based on pre-Federal bench conduct. 

First, Judge Porteous’s assertion that pre-Federal bench conduct 

may not form a basis for impeachment is not supported by the Constitution. Notwithstanding Judge Porteous’s assertions to the contrary, the Constitution does not limit Congress from considering 

pre-Federal bench conduct in deciding whether to impeach, and 

there are compelling reasons for Congress to consider such conduct—especially where such conduct consists of making materially 

false statements to the Senate. The logic of Judge Porteous’s position is that he cannot be removed by the Senate, even though the 

false statements he made to the Senate concealed dishonest behavior that goes to the core of his judicial qualifications and fitness to 

hold the Office of United States District Court Judge. The proposition that the Senate lacks power under these circumstances to 

remedy the wrong committed by Judge Porteous is simply untenable. 

Respectfully submitted. 

THE UNITED STATES HOUSE OF REPRESENTATIVES, 

By 

ADAM SCHIFF, Manager. 

BOB GOODLATTE, Manager. 

ALAN I. BARON, Special 

Impeachment Counsel. 

Managers of the House of Representatives: Adam B. Schiff, Bob 

Goodlatte, Zoe Lofgren, Henry C. ‘‘Hank’’ Johnson, F. James Sensenbrenner, Jr. 

April 22, 2010. 

Æ 


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