### UNITED STATES DISTRICT COURT FORTHE DISTRICT OFCOLUMBIA G. THOMAS PORTEOUS,JR., United States DistrictJudge for the Eastern District ofLouisiana, 

### Plaintiff,



### v. ALAN I. BARON, Special Counsel, Impeachment Task Force, Committee on the Judiciary, United States House of Representatives, et al., 

### Defendants. ) ) ) ) ) ) 

### ) Civil Case No. 09-2131 (RJL) ) ) ) ) ) ) 

# J MEMORANDUM OPINION (August**~** 2010) [#2 and #7] G. Thomas Porteous, Jr. ("Judge Porteous"), a suspended federal districtjudge, seeks to enjoin three defendants-each ofwhom serves as counsel to the Impeachment Task Force working on behalfofthe Judiciary Committee ofthe United States House of Representatives-from using sworn testimony provided by Judge Porteous under a grant of immunity. Judge Porteous claims that the use ofthat immunized testimony by the defendants to prosecute both his impeachment in the House and his subsequenttrial in the Senate violates his Fifth Amendment right against self-incrimination. Not surprisingly, the defendants have moved to dismiss. Although they oppose the merits ofJudge Porteous's claim on the ground that his Fifth Amendmentrights are not at stake in an impeachment proceeding, they argue nevertheless that the Court cannot reach the merits because, asCongressional aides, they are immune from suit underthe Constitution's Speech orDebate Clause. By bringing this lawsuit, Judge Porteous, in effect, invites a direct confrontation between the Judicial and Legislative Branches ofourgovernment. He calls upon our Court to exercise the extraordinary power ofbarring key Congressional aides from using certain evidence against him in the course ofan ongoing Congressional proceeding. Fortunately, the confrontation he seeks is to no avail. Because I agree that the Speech and Debate Clause bars this suit, the defendants' Motion to Dismiss [#7] is GRANTED, and Judge Porteous's Motion for a Preliminary Injunction [#2] is DENIED. 

### BACKGROUND The seeds that gave rise to this lawsuit were sowed almost ten years ago when the Department ofJustice launched a criminal investigation ofJudge Porteous while he was sitting as a districtjudge on the United States District Court for the Eastern District of Louisiana. Although the Department concluded that there was "evidencethat might warrant charging Judge Porteous with violations ofcriminal law relating tojudicial corruption," it ultimately decided, for a number ofreasons, not to seek criminal charges. (Defs.' Opp'nto Mot. for TRO and PI and Mem. in Support ofMot. to Dismiss, Ex. 3 [#5-2] at 1). Instead, the Department submitted a complaintto the ChiefJudge ofthe United States Court of Appeals for the Fifth Circuit ("the ChiefJudge"). In its complaint, the Department alleged that Judge Porteous committed numerous acts of judicial misconduct, such as soliciting and accepting cash and other things ofvalue from litigants, attorneys, bail bondsmen, and other interested parties with matters before him, as well as making false statements on financial

2disclosure forms and court filings in connection with his personal bankruptcy. (ld. at 3-21). The complaint further explainedthat, in light ofthe "evidence ofpervasive misconduct committed byJudge Porteous," the Department was referring the matterto the Fifth Circuit "forpossible disciplinary proceedings and, ifwarranted, certification ofthe allegations to Congress for impeachment." (ld. at 2). Upon receiving the complaint, the ChiefJudge authorized a Special Investigatory Committee ("the Committee") comprised ofthreejudges from the Fifth Circuit to investigate the allegations leveled against Judge Porteous. (ld., Ex. 5 [#5-3] at 2). With the assistance ofits own investigator, the Committee gathered evidence and conducted a twoday adversarial hearing in which a number ofwitnesses testified. (ld. at 4-5, 12-13). Amongthe witnesses subpoenaed was Judge Porteous himself. (ld. at 12). Judge Porteous invoked his Fifth Amendmentrights and refused to answer any questions putto him regarding these matters, butthe ChiefJudge compelled himto testifypursuantto a testimonial use Immunity Order. (ld., Ex. 4 [#5-2]). The Order, which was entered by the ChiefJudge in accordance with 18 U.S.C. §§ 6002-6003, I specifies that "notestimony or other information that he provides underthis order and no information directly or indirectly derived from such testimony or other information shall be used against him in any criminal case." (ld. at 1). Judge Porteous did not contest the validity ofthe Immunity Orderwhen it

was issued, nor does he do so now.

I Section 6002 forbids an immunized witness from refusing "to comply with [an immunity] order on the basis ofhis privilege against self-incrimination" butprovides that "notestimony orother information compelled under the order (orany information directly or indirectly derived from such testimony or otherinformation) may be used against the witness in any criminal case." 18 U.S.C. § 6002. 3Based on the evidence gleaned from its investigation, the Committee issued areport to the Judicial Council ofthe Fifth Circuit ("the Judicial Council") finding that Judge Porteous had committedjudicial misconductthat mightjustify impeachment. (Jd., Ex. 5 [#5-3] at 65). After reviewing the report, the Judicial Council adopted the Committee's findings by a majority vote and forwarded the entire record to the Judicial Conference ofthe United States ("the Judicial Conference"). (Jd., Ex. 6 [#5-3] at 4-5). In doing so, the Judicial Council certified its conclusion that Judge Porteous engaged in conduct "which might constitute one or more grounds for impeachment under Article II ofthe Constitution." (Jd. ). The Judicial Conference, in tum, reviewed the report and accompanying materials and determined that "consideration ofimpeachment of[Judge Porteous] may be warranted." (Jd., Ex. 2 [#5-2] at 2). The entire record ofthe proceedings in both the Judicial Council and the Judicial Conference, which included Judge Porteous's immunized testimony, was thereafter transmitted to the House for its review. (Jd.; /d., Ex. 1 [#5-2]**~~** 9-10). After the House officially opened its impeachment inquiry, the matter was referred to its Judiciary Committee, which appointed a bi-partisan Impeachment Task Force comprised oftwelve Committee Members to spearhead the inquiry. (Jd., Ex. 1 [#5-2]**~~** 12-15). To assist with the investigation, the House Judiciary Committeehired Alan I. Baron, a highly seasoned counsel from the Seyfarth Shaw LLP law firm, as its special counsel. (Jd.**~** 16). Judiciary Committee staffattorneys, Mark Dubester and Harold Damelin, were also assigned to provide legal support. (Jd.**~** 17).

4On November 13,2009,just four days before the anticipated commencement of hearings by the Impeachment TaskForce, Judge Porteous filed a single-count Complaint [# 1], accompaniedby a Motion for a Temporary Restraining Order and Preliminary Injunction [#2], seekingto prevent any further use ofhis immunizedtestimony. Ratherthan naming the Members ofCongress on the ImpeachmentTaskForce, Judge Porteous merely named the three counsel who are aiding the Task Force in its investigation: Baron, Dubester, and Damelin (collectively, "the defendants")? Judge Porteous's sole claim is that the "direct and indirect use of[his] immunized testimony to pursue his impeachment and removal from office violates [his] right not to be compelledto be a witness against himself underthe Fifth Amendment." (Compi. [#1]**~** 28). He seeks: (l) a declaratoryjudgment that the use ofthe immunizedtestimony is a violation ofhis constitutional rights, (2) an injunction barring the defendants from "making any use ofthe immunizedtestimony

... in connection with its impeachment inquiry," and (3) a hearing "to determine the extent ofany prioruse ofthe immunizedtestimony in orderto fashion an appropriate form ofinjunctive relief." (Id. at 7). The defendants promptly opposed Judge Porteous's motion and filed their own Motion to Dismiss [#7] on November 13,2009. I held a hearing a few days later, at the end ofwhich I denied Judge Porteous's request for a temporary restraining order. Soon thereafter, I invited the defendants to file a

2Lestthere be any doubt that Judge Porteous's ultimate objective by suing the three defendants in this case is to preventMembers ofCongress from relying on his testimony, that doubt was dispelled byJudge Porteous's counsel who, when asked by this Court whether his client was seeking an orderto prohibit Congress's use ofthe testimony either directly or indirectly, answered in the affirmative. 5supplemental memorandum in support oftheir Motion to Dismiss. The defendants did so, and the briefing on that motion became ripe in January 2010. On March 11, 2010, the House ofRepresentatives adopted four Articles of Impeachment against Judge Porteous. (See Notice ofFiling ofCongressional Record [#14]). In light ofthat development, I ordered the parties to show cause why Judge Porteous's suit should not be dismissed as moot. (April 5,2010 Order [#15]). Although the defendants acknowledgedthatthere was a colorable argument thatthe case was moot, they did not contend that it should be decided on that basis. Forhis part, Judge Porteous continues to assert that his claimremains viable given defense counsel's earlier representation to this Courtthatthe defendants "will likely serve as stafffor the Managers, all ofwhom will be Members ofthe House ofRepresentatives, ofthe impeachment articles at the upcoming Senate trial." (Porteous's Resp. to Court's Orderto Show Cause [#16] at 2- 3 (internal quotation marks omitted)). However, because I have concludedthat I lackjurisdictionby virtue ofthe Speech or Debate Clause, I need not determine whetherthe case is moot.3 Indeed, because there is "no mandatory 'sequencing of jurisdictional issues,'" a federal court has considerable "leeway 'to choose among threshold grounds for denying audience to a case on the merits.'"

3Although it is well-established that "[m]ootness is ajurisdictional question,"North Carolina v. Rice, 404 U.S. 244, 246 (1971), the Supreme Courthas never directly addressed whetherthe Speech or Debate Clause isjurisdictional. Nevertheless, our Circuit Court has observed that the "Speech orDebate Clause operates as ajurisdictional barwhen the actions upon which a plaintiffsoughtto predicate liability were'legislative acts.'" Fields v. Office of Eddie BerniceJohnson, 459 F.3d 1, 13 (D.C. Cir. 2006); see also Vander Jagt v. 

### 0 'Neill, 524 F. Supp. 519, 521 (D.D.C. 1981) (concluding that "the plaintiffs have not overcome the defendants' challenge to this Court'sjurisdictionby virtue ofboth the Speech and Debate Clause and the corollary Separation ofPowers doctrine"). 6Sinochem Int'l Co. Ltd. v. Malaysia Int 'l Shipping Corp., 549 U.S. 422, 431 (2007) (quoting RuhrgasAGv. Marathon Oil Co., 526 U.S. 574, 584, 585 (1999)). Exercisingthat leeway here, I chooseto reservejudgment on the mootness question and to dismiss the case instead for the following reasons. DISCUSSION The defendants move to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Underthat Rule, "theplaintiffbears the burden ofestablishing that the courthasjurisdiction,"Fowler v. Districta/Columbia, 122 F. Supp. 2d 37, 39-40 (D.D.C. 2000), and it is well-accepted that the Court may considerevidence outside ofthe pleadings in deciding whether the plaintiffhas met its burden, Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). One ofthe arguments raised in the defendants' Motion to Dismiss is that, as staff aides to Members ofCongress, they are immune from suitby virtue ofthe Speech orDebate Clause for actions taken onbehalfoftheirMembers that are legislative in nature.4 The

4 The defendants raised two otherthreshold arguments that I need not address. First, they contended that the real defendant in interest is the House ofRepresentatives-which is entitled to absolute sovereign immunity-becausethe obvious purpose ofJudge Porteous's suit is to deprive the Judiciary Committee, in particular, and the House ofRepresentatives, in general, from obtaining and using his immunized testimony for purposes ofthe impeachment inquiry and subsequent Senate trial. Second, the defendants contendedthat Judge Porteous's claim is notjusticiable in at least two respects. They asserted first that the claim is not yet ripe because Judge Porteous has notbeen removed from office. Thus, any alleged harm to Judge Porteous at this point is merely speculative and does notrise to an actual case or controversy. They also asserted that Judge Porteous's claimraises a nonjusticiablepolitical question in that it challenges the use ofhis immunizedtestimony as evidence against him in the course ofhis impeachment and removal proceedings. The defendants argue that procedural matters pertaining to the conduct ofimpeachment proceedings in the House and impeachment trials in the Senate are textually committed by 7defendants specifically contended that the acts challenged in this case-thatis, theiruse of Judge Porteous's immunized testimony in conducting his impeachment and removal proceedings in Congress-are clearly legislative and thus exempt fromjudicialreview. Having considered the merits ofthis argument, I am persuaded that the Speech or Debate Clause does indeed barjudicialreview ofthe defendants' actions in this case. Not wanting, or needing, to say any more than necessary, I will limit my opinion to the reasons that compel that conclusion. The constitutional provision in Article Iwidely known as the Speech or Debate Clause provides that "for any Speech orDebate in either House" ofCongress, the Senators and Representatives "shall not be questioned in any otherplace." U.S. Const. art. I, § 6, cl. 1. The effect ofthis Clause is to give Members ofCongress immunity from suit for things that they say or do while "engaged in the sphere oflegitimate legislative activity." Dombrowski v. Eastland, 387 U.S. 82, 84-85 (1967) (internal quotation marks omitted). Thus, legislators who might be sued for carrying out their legislative duties are "protected not only from the consequences oflitigation's results but also from the burden ofdefending themselves." Id. at 85. When it applies, the Clause "provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch." Eastlandv. Us. Servicemen's Fund, 421 U.S. 491, 502- 03 (1975). Given its historical pedigree, which the Supreme Courthas recounted in detail, see, e.g., UnitedStates v. Johnson, 383 U.S. 169, 177-79, the Speech orDebate Clause "has been the Constitution to the sole discretion ofthose respective houses ofCongress and are not within the province ofthe courts. 8recognized as an importantprotection ofthe independence and integrity ofthe legislature," id. at 178. Itprevents both the intimidation oflegislators "by the executive and accountability before apossibly hostilejudiciary." Id. at 181. It also serves the important function of"reinforcingthe separation ofpowers so deliberately establishedby the Founders." Id. at 178. Indeed, the Supreme Court itselfhas made clearthat the "purpose of the Clause is to insure that the legislative function the Constitution allocates to Congress may be performed independently," Eastland, 421 U.S. at 502, and thereby to enable and encourage legislators to "'discharge [their] publick trust with firmness and success,'" Powell

v. McCormack, 395 U.S. 486, 503 (1969) (quoting 1The Works ofJames Wilson 421 (R. McCloskeyed. 1967)). The Supreme Court has "[w]ithout exception

...read the Speech orDebate Clause broadly to effectuate [those] purposes." Eastland, 421 U.S. at 501 (collecting cases). Thus, in Kilbourn v. Thompson, one ofthe earliest cases to interpret the Clause, the Supreme Court held that the privilege extends not only to "words spoken in debate," but to anything "generally done in a session ofthe House by one ofits members in relation to the business before it." 103 U.S. 168,204 (1880). Whether aMember ofCongress is entitled to immunity under the Clause hinges therefore on whetherthe Member is "acting in the sphere oflegitimate legislative activity." Tenney v. Brandhove, 341 U.S. 367, 376 (1951). Where actual speech or debate is not involved, however, the activity "mustbe an integral part ofthe deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection ofproposed legislation orwith respect to other matters which the Constitutionplaces within the

9jurisdiction ofeither House." 

### Gravel v. 

### UnitedStates, 408 U.S. 606, 625 (1972). Applying these principles, the Supreme Court has held, for instance, that conducting an investigation where information is gathered, holding hearings where the information is presented, preparing a report where the information is reproduced, and authorizing the publication and distribution ofthat report are all acts that fall within the legislative sphere. 

### Doe v. 

### McMillan, 412 U.S. 306, 313 (1973). Thus, ifa court determines that a Member of Congress is acting within that sphere, "the Speech orDebate Clause is an absolute barto interference." 

### Eastland, 421 U.S. at 503. Consistent with this broad application ofthe Clause, the Supreme Court, quite understandably, has extended its protections beyond Members ofCongress to their aides as well. Given the reality and complexity ofthe modern legislative process, the Supreme Court found that "the day-to-day work ofsuch aides is so critical to the Members' performance that they mustbe treated as the latter's alter egos" and that "ifthey are not so recognized, the central role ofthe Speech or Debate Clause

... will inevitably be diminished and frustrated." 

### Gravel, 408 U.S. at 616-17. Forthat reason, the Supreme Court held that "the Speech or Debate Clause applies not only to a Memberbut also to his aides insofar as the conduct ofthe latter would be protected legislative act ifperformedby the Memberhimself." Id. at 618. Applying these principleshere, I have little difficulty concluding that the defendants' conduct, the constitutionality ofwhich Judge Porteous challenges, is legislative in nature and thus entitled to absolute immunity underthe Speech or Debate Clause. The activity that Judge Porteous seeks to enjoin, now that his impeachmentproceeding has

10concluded, is the defendants' direct or indirect use ofhis immunizedtestimony athis upcoming Senate impeachment trial. The trial ofimpeachable offenses is, ofcourse, a matter that the Constitution places within the solejurisdiction ofthe Senate, see U.S. Const. art. I, § 3, cl. 6, and the use ofrelevanttestimony at or in preparation for thattrial is, without

a doubt, "an integral part ofthe deliberative and communicativeprocesses by which Members participate" in the trial proceedings, see Gravel, 408 U.S. at 625. After all, without evidence, there can be no trial for the Senators, House Managers, and their staffs to conduct. Therefore, the consideration and use ofsuch testimony by Members ofCongress in the course ofa Senate impeachment trial falls squarely within its legislative sphere. Furthermore, because the conduct that Judge Porteous seeks to enjoin is off-limits if carried out by a Member ofCongress, then it is also off-limits ifcarried outbythe defendants, who, as counsel to the Judiciary Committee, are Congressional aides for purposes ofSpeech or Debate Clause immunity. Indeed, ifthe challenged conduct is truly outside the realm oflegitimate legislative activity, as Judge Porteous contends, then there would be no reason whatsoeverto name only the Congressional aides as defendants. Judge Porteous could have named the ImpeachmentTaskForce orthe Judiciary Committee as well. That he did not bespeaks the weakness ofhis case. Against this tide ofunfavorable case law, the only colorable argumentthat Judge Porteous has mustered is that the defendants' use ofhis immunized testimony during his impeachment and removal proceedings is not a "legitimate" legislative activity because it violates his Fifth Amendmentright against self-incrimination. I disagree. Slander, of course, is no more "legitimate"-inthe sense that Judge Porteous uses the term-than



### 11improperly using immunized testimony, yet the Speech orDebate Clause undoubtedly protects legislators from suit for making slanderous remarks in floor or committee debates. See Hutchinson v. Proxmire, 443 U.S. 111, 130 (1979) (noting that a "speechby [Senator] Proxmire in the Senate would be wholly immune" from a suit for defamation). By equating "legitimate" with "lawful," Judge Porteous's position, were it accepted by this Court, would entirely eviscerate the protections afforded by the privilege, and in so doing, it would undermine one ofthe core purposes ofthe Speech orDebate Clause, which is "to insure that legislators are not distracted from or hindered in the performance oftheir legislative tasks by being called into court to defend their actions." Powell, 395 U.S. at 505. Itmakes little

sense in light ofthatpurpose to predicate a legislator's entitlement to legislative immunity

on a finding that the legislator did notact unlawfully. Indeed, it would defeat the entire point ofthe Clause to subject a legislator to the burdens ofdiscovery and a potential trial for the purpose ofdetermining whether the legislator acted lawfully and thus, in Judge Porteous's view, "legitimately," even when the nature ofthe legislator'S conduct is well within the normal bounds oflegislative activity. In sum, the proper focus ofthis Court's inquiry underthe Speech or Debate Clause is not, as Judge Porteous would have it, on what the defendants did in particular and whether it

was unlawful. The focus is on the nature ofthe defendants' conduct more generally. So long as the type ofconduct he seeks to enjoin falls legitimately within the scope of legislative activity, it matters not whetherthe specific conduct is unlawfu1. 5 As the Supreme

5 Compare Eastland, 421 U.S. at 492-511 (holding that the issuance ofa committee subpoenawas a legitimate legislative activity entitled to immunity underthe Speech or Debate Clause, notwithstanding the plaintiffs' allegation thatthe subpoenaviolatedtheir 12Courtteaches, "[c]ongressmen and their aides are immune from liability for their actions within the'legislative sphere,' even though their conduct, ifperformed in otherthan legislative contexts, would in itselfbe unconstitutional or otherwise contrary to criminal or civil statues." Doe, 412 U.S. at 312-13 (internal citation omitted) (emphasis added). Therefore, because the use oftestimony to prepare for and conduct Congressional impeachment and removal proceedings is conduct ofthe type that clearly falls within the legislative sphere, the Speech or Debate Clause prevents this Court from questioning, let alone enjoining, the defendants about their use ofJudge Porteous's immunized testimony, whether or not such use actually runs afoul ofthe Fifth Amendment. CONCLUSION The Speech orDebate Clause protects the independence and autonomy ofthe Legislative Branch fromjudicial intrusion. In that sense, the Clause is critical to ensuring the Constitution's division ofpowers. Judicial restraint and comity dictate that this Court refrain from any interference with the ongoing proceedings in the Senate. Indeed, our Circuit Court admonished members ofthe District Court in a similar case to be "at least as

First Amendment rights); Doe, 412 U.S. at 309-18 (holding that the plaintiffs' constitutional and common-law privacy claims were barred by the Speech orDebate Clause insofar as they soughtrelieffrom legislators and their stafffor, among otherthings, introducing confidential material at committee hearings); with Powell, 395 U.S. at 494, 501-06 (refusing to extend Speech or Debate Clause protection to the Clerk ofthe House for refusing to perform the duties due to a Representative, to the Sergeant at Arms for refusingto pay the plaintiffhis salary, and to the Doorkeeper for refusing to admit the plaintiffinto the House chamber, all ofwhich are conductthat does not constitute legislative action); Dombrowski, 387 U.S. at 84-85 (holding that legislative immunity did not extend to committee counsel who was charged with conspiring with state officials to carry out an illegal seizure of records); Kilbourn, 103 U.S. at 200-05 (holding that the person who carried out an illegal arrest was not entitled to legislative immunity even though the legislators who authorized the arrest were). 13hesitant to interrupt [impeachmenttrial] proceedings in progress as [they] wouldbe to interruptproceedings underway in a state or coordinate federal court." Hastings v. Us. Senate, 887 F.2d 332,1989 WL 122685, at *1 (D.C. Cir. Oct. 18, 1989) ("Hastings F') (unpublished). After all, it is not as ifJudge Porteous has no forum in which to voice his constitutional objection to the use ofhis immunized testimony. He may do so in the Senate, which, as the impeachment court, may well grant the reliefhe seeks. His attempt here to circumvent the Senate altogether by bringing his constitutional challenge in this tribunal before the Senate has even reached a final decision is not only premature, but an affront to

our constitutional order. Giventhe immunity afforded to the defendants by the Speech or Debate Clause, togetherwith the already strong constitutional interests counseling against judicial interference with ongoing impeachmenttrial proceedings in the Senate, there is no soundbasis for this Courtto exercise itsjurisdiction at thisjuncture. Accordingly, the defendants' Motion to Dismiss [#7] is GRANTED, and Judge Porteous's Motion for a Preliminary Injunction [#2] is DENIED. An Order consistent withthis Memorandum Opinion is attached.

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