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TO CONSIDER POSSIBLE IMPEACHMENT OF 

UNITED STATES DISTRICT JUDGE G. THOMAS 

PORTEOUS, JR. (PART IV) 

HEARING 

BEFORE THE

TASK FORCE ON JUDICIAL IMPEACHMENT 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

DECEMBER 15, 2009 

Serial No. 111–46 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

TASK FORCE ON JUDICIAL IMPEACHMENT

ADAM B. SCHIFF, California, Chairman 

SHEILA JACKSON LEE, Texas 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

CHARLES A. GONZALEZ, Texas 

BOB GOODLATTE, Virginia 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

(III) 

C O N T E N T S 

DECEMBER 15, 2009 

Page 

OPENING STATEMENTS 

The Honorable Adam B. Schiff, a Representative in Congress from the State 

of California, and Chairman, Task Force on Judicial Impeachment ............... 1 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Ranking Member, Task Force on Judicial Impeachment ...... 2 

WITNESSES 

Mr. Charles G. Geyh, Professor, Maurer School of Law, Indiana University 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 7 

Mr. Akhil Reed Amar, Professor, Yale Law School 

Oral Testimony ..................................................................................................... 17 

Prepared Statement ............................................................................................. 19 

Mr. Michael J. Gerhardt, Professor, University of North Carolina School 

of Law 

Oral Testimony ..................................................................................................... 23 

Prepared Statement ............................................................................................. 26 

(1) 

TO CONSIDER POSSIBLE IMPEACHMENT OF 

UNITED STATES DISTRICT JUDGE G. THOMAS PORTEOUS, JR. (PART IV) 

TUESDAY, DECEMBER 15, 2009 

HOUSE OF REPRESENTATIVES, 

TASK FORCE ON JUDICIAL IMPEACHMENT

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Task Force met, pursuant to notice, at 10:38 a.m., in room 

2141, Rayburn House Office Building, the Honorable Adam B. 

Schiff (Chairman of the Task Force) presiding. 

Present: Representatives Schiff, Jackson Lee, Johnson, Pierluisi, 

Gonzalez, Sensenbrenner, Goodlatte, Lungren, and Gohmert. 

Staff Present: Alan Baron, Counsel; Harold Damelin, Counsel; 

Mark Dubester, Counsel; Jessica Klein, Staff Assistant; and 

Kirsten Konar, Counsel. 

Also Present: (Representing G. Thomas Porteous) Richard W. 

Westling, Esq., Ober Kaler, Attorneys at Law, Washington, DC 

20005-3324. 

Mr. SCHIFF. This hearing of the House Judiciary Task Force on 

Judicial Impeachment will now come to order. 

Without objection, the Chair will be authorized to declare a recess of the hearing. 

I will now recognize myself for an opening statement. 

Today, the Task Force will continue its inquiry whether United 

States District Court Judge Thomas Porteous should be impeached 

by the U.S. House of Representatives. To date, the Task Force has 

held 4 days of hearings where testimony was taken regarding the 

following: allegations that Judge Porteous violated the public trust, 

law, and ethical canons by presiding over the case In re Liljeberg 

Enterprises, Inc.; by repeatedly making false and misleading statements, including the concealment of debts under oath and disregard of a bankruptcy court’s orders; and by accepting things of 

value from the owners of a bail bonds company in Louisiana in exchange for access and assistance in his official capacity as a judge, 

including setting aside convictions. 

Today’s hearing is part four in our series and will focus on 

whether Judge Porteous’s conduct renders him unfit to hold office 

and provides a sufficient basis for impeachment. 

After our witnesses make their initial statements, Members will 

have the opportunity to ask questions under the 5-minute rule. 

Judge Porteous’scounsel will then be permitted to question the 

2 

panel for 10 minutes, followed by a second round of Member questions, if necessary. 

I will now recognize my colleague, Mr. Goodlatte, the distinguished Ranking Member of the Task Force, for his opening remarks. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Article 3 of the Constitution provides that Federal judges are appointed for life and that they shall hold their offices during good 

behavior. Indeed, the Framers knew that an independent judiciary, 

free of political motivations, was necessary to the fair resolution of 

disputes and the fair administration of our laws. However, the 

Framers were also pragmatists and had the foresight to include 

checks against the abuse of independence and power that comes 

with a judicial appointment. 

Article I, section two, clause five of the Constitution grants the 

House of Representatives the sole power of impeachment. This is 

a very serious power that should not be undertaken lightly. However, if evidence emerges that an individual is abusing his judicial 

office, the integrity of the judicial system becomes compromised, 

and the House of Representatives has the duty to investigate the 

matter and take any appropriate actions to end the abuse and restore confidence in the judicial system. 

The Task Force on Judicial Impeachment has been conducting a 

detailed investigation of the alleged misconduct of Federal District 

Judge Thomas Porteous. The Task Force has also held a series of 

hearings to gather further evidence from those who have firsthand 

knowledge of Judge Porteous’s conduct. 

Today, we will shift gears a little and hear from expert witnesses 

on the standards for impeachment, the standards of judicial conduct, and Judge Porteous’s actions in relation to those standards. 

I look forward to hearing from the witnesses, and I thank you, Mr. 

Chairman, for holding this important hearing. 

Mr. SCHIFF. I thank the gentleman, who yields back. 

Would any other Member at this time like to make an opening 

statement? 

Okay. I want to welcome our witnesses today and thank them for 

their participation. 

Our first witness is Professor Charles Geyh of the Maurer School 

of Law, Indiana University. Professor Geyh received his law degree 

from the University of Wisconsin. Following graduation, he clerked 

for Judge Thomas Clark of the U.S. Court of Appeals for the Eleventh Circuit. Professor Geyh was then an associate at Covington & 

Burling and served as counsel to this very Committee. He has also 

served as special counsel to the Office of Legislative and Public Affairs at the Administrative Office of the U.S. Courts and as an advisor to then-Senator Joseph Biden, Jr., on the Senate confirmation 

of Justice Thomas to the Supreme Court. 

In 1991, Professor Geyh joined the field of academia at Widener 

University of Law. He began teaching at Indiana in 1998, where 

he currently teaches courses on civil procedure, legal ethics, Federal courts, and the relationship between the judicial and legislative branches. Professor Geyh is the current director of the ABA 

Judicial Disqualification Project. 

3 

He is also a co-author of Judicial Conduct and Ethics and the author of Preserving Public Confidence in the Courts in an Age of Individual Rights and Public Skepticism; Rescuing Judicial Accountability from the Realm of Political Rhetoric; Judicial Independence, 

Judicial Accountability, and the Role of Constitutional Norms in 

Congressional Regulation of the Courts, Courts, Congress, and the 

Constitutional Politics of Interbranch Restraint; and Informal 

Methods of Judicial Discipline. 

Our second witness is Professor Akhil Amar from Yale Law 

School. Professor Amar received both his undergraduate and law 

degrees from Yale University. While in law school, he served as an 

editor of the Yale Law Journal. Upon graduation, he clerked for future U.S. Supreme Court Justice Stephen Breyer while he sat on 

the U.S. Court of Appeals for the First Circuit. 

Professor Amar joined the faculty of Yale in 1985 and is currently the Sterling Professor of Law and Political Science at Yale 

University. In this capacity, he teaches constitutional law at both 

the undergraduate and law school levels. Professor Amar is also coeditor of Processes of Constitutional Decisionmaking, and the sole 

author of several other books, including The Constitutional and 

Criminal Procedures: First Principles; The Bill of Rights: Creation 

and Reconstruction; and America’s Constitution: A Biography. 

Our final witness is Professor Michael Gerhardt of the University 

of North Carolina School of law. Professor Gerhardt graduated 

from Yale University, received his master’s from the London School 

of Economics and his law degree from the University of Chicago. 

He served as a professor at William & Mary Law School for over 

a decade before joining the faculty of the University of North Carolina School of Law, where he currently teaches. 

Professor Gerhardt has been a visiting professor at the Cornell 

and Duke Law Schools and was a visiting fellow at Princeton University as a part of their James Madison Program in American Institutions and Ideals. Professor Gerhardt is frequently consulted as 

an expert on constitutional law by national media and has testified 

before Congress on several occasions, including as the only joint 

witness in the House Judiciary Committee’s special hearing on the 

history of the Federal impeachment process for its consideration of 

the impeachment of President Clinton. 

He has also testified before this Committee regarding legislative 

proposals involving the judicial branch. He is the author of a number of works, including The Federal Impeachment Process: A Constitutional and Historical Analysis, as well as the co-author of 

three editions of the Constitutional Theory Reader and over 50 law 

review publications. 

Given the gravity of the issues we are discussing today, we would 

appreciate it if you would take an oath before you begin your testimony. 

I will now swear the witnesses. If you would each please rise and 

raise your right hands. 

[Witnesses sworn.] 

Mr. SCHIFF. Thank you. Please be seated. 

And we will now begin with Professor Geyh. 

4 

TESTIMONY OF CHARLES G. GEYH, PROFESSOR, 

MAURER SCHOOL OF LAW, INDIANA UNIVERSITY 

Mr. GEYH. Thank you, Mr. Chairman. 

My testimony today is going to be directed at the ethical implications of Judge Porteous’sconduct, with a focus on the Code of Conduct for United States Judges. As you already know, the Porteous 

matter is very complicated, spanning a number of episodes over a 

period of years. I am going to orient my testimony around those 

episodes beginning with those that I think are most problematic. 

As a preamble here, the ethical responsibilities of Federal judges 

are articulated in the Code of Conduct for United States Judges. 

The Code seeks to ensure that Federal judges serve with integrity, 

impartiality, and independence. Those are the watch phrases. 

Core principles embedded in the Code of Conduct are that judges 

avoid impropriety and the appearance of impropriety in all their 

activities. That means on and off the bench. That they act at all 

times, again, meaning on and off the bench, in a manner that promotes public confidence in the integrity and impartiality of the Judiciary. 

Now, moving on to the Liljeberg case, which strikes me as certainly the most problematic in the bunch, there are specific directives applicable there as well. Judges must disqualify themselves 

whenever their impartiality might reasonably be questioned. 

Now, I want to emphasize here that this duty to disqualify is embedded as a procedural requirement in Title 28 of the U.S. Code, 

but it is also appearing in the Code of Conduct, so that it is both 

a procedural requirement and an ethical obligation. In addition, the 

Code of Conduct declares that judges must not solicit or accept 

gifts from lawyers who appear before them. 

Now, in Liljeberg, Judge Porteous declined to disqualify himself 

from a major piece of commercial litigation in which two of the lawyers hired during the eleventh hour to represent defendants in that 

case were not just long-time friends, they were friends with benefits. They had bought him countless meals and hunting trips over 

the years. They had paid him thousands of dollars on demand over 

the years. They had arranged to give him what can only be described in my mind as kickbacks from curatorships he had assigned 

them while a State judge. 

And so under these circumstances in which this lawyer, Amato 

in particular, appears before him, it is clear to me that a reasonable, fully informed, objective observer looking at that situation 

would question Judge Porteous’simpartiality, requiring disqualification under both the ethical rules and Title 28. 

Now, in the routine case a judge’s failure to disqualify himself 

merits nothing more than reversal, because judges make mistakes 

the same as everybody else and a mistake is not an ethical violation. However, this is more than an honest mistake. The facts as 

alleged here show that there was a willfulness on Judge 

Porteous’spart. And again I am relying on facts as found by the Judicial Conference, and I am turning to testimony that has been adduced so far in these proceedings, and I leave it to you to find the 

facts. 

But taking those facts as given, it would appear that although 

Judge Porteous knew that he had received thousands of dollars 

5 

from Mr. Amato over the years and solicited moneys and kickbacks, 

that he nevertheless reported on the record at the disqualification 

hearing that he had taken money from Amato only once, when 

Judge Porteous first ran for judge. This kind of misdirection indicates to me a willful intent to conceal information he knew required disqualification and morphs it out of a simple error and into 

the form of a much more serious, willful failure to disqualify under 

circumstances in which he knew that he should. 

It gets worse. When he allegedly solicited thousands of dollars 

from Amato while that very case was pending, he first violated gift 

rules, which basically indicate you can’t solicit moneys from lawyers in pending cases; and, to make matters worse still, that gift 

was not reported later, which to me indicates an attempt to conceal 

or an awareness that at the time he is asking for a gift it is not 

appropriate to receive. 

He accepts that gift, having solicited it. It made disqualification even more necessary at that point, that he had accepted a $2,000 

gift from a lawyer in a pending proceeding, and made his failure 

to do so all the more flagrant. To me, then, this is not just a failure 

to disquality. 

We are now going back to the core directive that a judge must 

act at all times to avoid impropriety, and a judge must at all times 

work to promote public confidence in the impartiality of the judiciary— both of which directives were, in my judgment, sidestepped. 

The second of the three examples I am going to talk about here 

is the bankruptcy proceeding, which you have heard about more recently. Judges I think categorically have a duty to respect and comply with the law. It is embedded in the Code of Conduct. That duty 

is understandable enough, because if judges are going to be sworn 

to uphold the law in cases that come before them, they must honor 

and obey that law in their private lives. 

Judge Porteous allegedly violated perjury and fraud statutes in 

the bankruptcy proceedings. If so, he disregarded that directive. 

Now, even if we say that because he was not prosecuted for that 

conduct he did not technically abrogate the duty or violate the duty 

to comply with the law, one can nevertheless conclude, as courts 

all over the place have in the State systems, that a judge who violates the law, even if it is unprosecuted, has failed to avoid impropriety and has failed to act at all times in a manner that promotes 

public confidence in the integrity of the judiciary. And bear in mind 

that integrity in this case is defined to mean honesty and probity, 

which fraud and perjury would certainly seem to be the antithesis 

of. 

Finally, in the case of a bail bondsman, judges have an ethical 

duty to avoid lending the prestige of judicial office to advance the 

interests of others. In this case, Judge Porteous, while on the Federal bench, allegedly accepted free meals and other favors in exchange for recommending the bondsman in question to State 

judges, thereby lending the prestige of his office to advance the 

bondsman’s interests. To me, this likewise runs afoul of the Code 

of Conduct. 

As egregious as the judge’s alleged conduct was in the several 

episodes that I have spoken of here and in others that are included 

in my written testimony, to me the whole exceeds the sum of its 

6 

parts. Taken together, the actions that Judge Porteous is reported 

to have taken as a State and Federal judge reflect a cynical and 

contorted view of judicial service as an opportunity to be exploited, 

of judicial power as a thing to be abused for personal gain, and of 

legal and ethical constraints on judicial conduct as obstacles to be 

circumvented. This, gentleman, is not appropriate conduct. 

Thank you. 

[The prepared statement of Mr. Geyh follows:] 

7 

PREPARED STATEMENT OF CHARLES G. GEYH


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Mr. SCHIFF. I thank the gentleman. Professor Amar. 

TESTIMONY OF AKHIL REED AMAR, PROFESSOR, 

YALE LAW SCHOOL 

Mr. AMAR. Thank you, Mr. Chair. 

With respect, I have five points to make. 

First, there is no good reason to believe that only offenses punishable under the criminal code merit impeachment. In context, a 

high misdemeanor is best understood as high misconduct, whether 

or not criminal. This is very clear from constitutional history, from 

the precedents established early on, from the common sense of the 

matter. And that is one of the reasons, by the way, that impeachment is given to a body that is not expert necessarily on criminal 

law technicalities. It is given to this body and the other body precisely because it is a broader, more commonsensical inquiry. 

Second and related, the procedural rules applicable to ordinary 

criminal cases do not necessarily apply to impeachment trials. The 

jury, so to speak, the Senate, need not be unanimous. The recusal 

rules are not the ones that apply in ordinary criminal cases. 

For similar reasons, in my view, the Fifth Amendment self-incrimination clause, a clause that applies to ordinary criminal cases, 

should not apply in all respects in an impeachment trial, which is 

only quasi-criminal. And the underlying reasoning here is simple. 

Ordinary criminal cases place the defendant’s bodily liberty at risk. 

In a capital case, life hangs in the balance. But an impeachment 

defendant does not face any threat to life or limb in an impeachment proceeding even if he is being impeached for treason itself. 

Thus, these impeachment procedures need not be as tenderly protective of defendants because impeachment defendants face fewer 

punitive sanctions than ordinary criminal defendants. 

And in this particular case, it is not even clear that removal from 

office is really punishing Judge Porteous by depriving him of anything that was ever rightfully his. Rather, removal from office simply undoes an ill-gotten gain. It ends a Federal judgeship that he 

should never have received in the first place and never would have 

received but for the falsehoods and frauds that he perpetrated 

while being vetted for this position here on Capitol Hill. 

Third, it is a gross mistake to believe that Federal officers may 

be impeached only for misconduct committed while in office or, 

even more strictly, for misconduct that they committed in their capacity as Federal officers. This was the standard that was put forth 

by Judge Dennis in some of the materials you have before you, and 

it is a completely mistaken standard that really fatally compromises the analysis that Judge Dennis provided. The text of the 

Constitution has no such requirement, and structure and common 

sense demonstrate the absurdity of this position. 

Let’s take bribery. Imagine now a person who bribes his very 

way into office. By definition, the bribery here occurs prior to the 

commencement of office holding. But surely that fact can’t immunize the briber from impeachment and removal. Had the bribery 

not occurred, the person never would have been an officer in the 

first place. 

This is a view, as is almost everything I am saying here, that I 

committed myself to in print long before these hearings; and my 

18 

written testimony contains more of the details of what I and other 

scholars have written before on this matter. 

Now, what is true of bribery is equally true of fraud. A person 

who procures a judgeship by lying to the President and lying to the 

Senate has wrongly obtained his office by fraud and is surely removable via impeachment for that fraud. 

Fourth, not all evasive or even downright false statements in the 

nomination and confirmation process deserve to be viewed as high 

misdemeanors equivalent to bribery. Here, as elsewhere, judgment 

is required; and the Congress, in my view, is perfectly positioned 

to exercise that judgment about what makes these misstatements 

particularly worthy of impeachment. 

And in the case of Judge Porteous, as I understand the facts, 

here are some of the things that I would stress. He gave emphatically false statements to direct, albeit broad, questions. These emphatic falsehoods concealed gross prior misconduct as a judge in a 

vetting proceeding whose very purpose was to determine whether 

he should be given another judicial position with broadly similar 

power. 

The nomination and confirmation process fraud and falsehood 

were part of a much larger pattern, as you have just heard, of 

fraud and falsehood, a pattern that began much earlier in State 

court and continued much later on the Federal bench as in the 

Liljeberg case. And, finally, had Judge Porteous told the truth in 

his confirmation process, it is absolutely inconceivable that he 

would have been confirmed and commissioned as a Federal judge. 

Fifth, and finally, the House and Senate in this case need not 

worry about undoing the people’s verdict on election day, a concern 

that does properly inform Presidential impeachment cases. Here 

Porteous is a judge only because the Senators themselves voted to 

make him one, and they did so under false pretenses. He lied to 

them. 

This House should give the other body, which voted to place 

Porteous in the position of power over his fellow citizens the chance 

to revote and remove Porteous from power. And now that it is clear 

that he won that earlier position—that earlier vote by foul, fraud, 

falsehood, by high misdemeanor. 

This isn’t really harsh punishment in this case. It is simply 

disgorgement of wrongful gain and prevention of future foreseeable 

misconduct, given the gross pattern that has been demonstrated 

here. 

In conclusion, every day that a fraudster continues to claim the 

title of a Federal judge and to draw his Federal salary is an affront 

to fellow citizens and taxpayers, to say nothing of the parties unfortunate to come before him. The mere fact that criminal prosecution 

of Porteous might not be warranted should not mean that he 

should therefore escape scrutiny and verdict of an impeachment 

court. I am reminded of the bank robber who managed to fool the 

judge into acquitting him. That is great, your Honor, the defendant 

blurted out. Does this mean that I can keep the money? 

Thank you, Mr. Chair. 

[The prepared statement of Mr. Amar follows:] 

19 

PREPARED STATEMENT OF AKHIL REED AMAR


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Mr. SCHIFF. Thank you, Professor. 

Professor Gerhardt. 

TESTIMONY OF MICHAEL J. GERHARDT, PROFESSOR, 

UNIVERSITY OF NORTH CAROLINA SCHOOL OF LAW 

Mr. GERHARDT. Thank you, Mr. Chair. I greatly appreciate the 

invitation to be here. It is an honor to participate in these proVerDate Aug 31 2005 16:16 Jan 26, 2010 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 H:\WORK\JUDIMP\121509\54074.000 HJUD1 PsN: 54074

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ceedings. It is also a great honor to participate today with my 

friends, Charlie Geyh and Akhil Amar. 

You have my written statement, and so I will give you a much 

shorter version of it in these oral remarks. 

At the outset, though, I want to take the liberty of reminding you 

that the integrity of the Federal judiciary and public confidence in 

the Federal judiciary are your solemn responsibility. It is the responsibility of the House of Representatives to monitor the conduct 

and the misconduct of those people who have been appointed to 

certain offices, including Federal judgeships. 

In my written statement I focus on four different issues that I 

think are of interest to you as a Committee, and I will simply summarize those issues here. 

The first has to do with the question of whether or not impeachable offenses have got to be indictable crimes, those kinds of crimes 

which people may, as Professor Amar was describing, lose their 

physical liberty. 

I think the evidence on this is overwhelming. The overwhelming 

weight of authority is that impeachable offenses are not merely indictable crimes. The most common phrase that you find in reviewing the literature on impeachment and the history of it is the 

Framers and ratifiers intended impeachable offenses to be what 

they thought of as political crimes; and they describe these things 

as offenses against the State, injuries to the Republic, breaches of 

the public trust, abuses of power. They rarely talked about things 

that were actually codified as criminal offenses but instead described offenses that were not liable at law; and so I think the 

overwhelming weight of authority is that you need not restrict 

yourselves to consideration of conduct that would, if done, send 

somebody to prison. 

The second issue has to do with whether or not somebody may 

be subject to impeachment conviction and removal for conduct done 

prior to occupying that particular position. I think this can be a difficult question, but I don’t think it is a difficult question here. 

As I suggest in my written statement, any egregious misconduct 

not disclosed prior to election or appointment to an office from 

which one may be impeached or removed is likely to qualify as a 

high crime or misdemeanor. While murder would be one obvious 

example of such misconduct, it is not the only example. 

Another example I think is lying to or defrauding the Senate in 

order to be approved as a Federal judge. Such misconduct is not 

only serious but obviously connected to the status and responsibilities of being a Federal judge. Such misconduct plainly erodes the 

essential indispensable integrity without which a Federal judge is 

unable to do his job. 

The third issue has to do with whether or not an impeachment 

is the same as, or should be the treated the same, as a criminal 

proceeding; and I think the answer to this is also very clear. Impeachment has always been understood to be a unique proceeding, 

sometimes described as a hybrid proceeding, a proceeding that has 

some things in common with civil proceedings and criminal trials, 

but it is unique in itself. 

For one reason, it is vested in this body. The responsibility of impeachment is not given to a judge or a jury, it is given to political 

25 

authorities, people who are politically accountable. Other reasons 

are the unique punishments that are available in impeachment, 

which include removal from office and disqualification from certain 

privileges. 

The last—and I should also say that the unique nature of an impeachment proceeding is something that thus would allow the Congress to use a different burden of proof and to use different evidence or evidentiary rules as it saw fit. 

The critical thing, as Charles Black pointed out in his wonderful 

book on impeachment, is because it is political authorities who 

have been given the responsibility over impeachment, they have 

got the sophistication and the learning, the common sense, the 

know-how to deal with the kinds of matters that they have to deal 

with in these circumstances. 

Justice Story talks about the fact that political crimes can’t be 

delineated in a particular statute. They can’t be codified. You have 

to learn about them on a case-by-case basis. This is precisely why 

a body as important and as unusual and special as the House of 

Representatives is vested with the authority over impeachment, because you have got the ability to make those practical, important 

judgments that have to be made about what counts as an impeachment and whether or not a particular case merits impeachment. 

The last question has to do with whether or not we have any 

precedents on point—I should say whether we have any precedents 

directly on point. I think the short answer is probably not. But I 

think that has to do with more the nature of Judge Porteous’s misconduct than with anything else. The fact is that we are discovering or finding in this case a pattern of misbehavior that extends 

over such a long period of time that it is virtually unique in the 

annals of impeachment. And I think in terms of this case, the outcome is pretty clear. And I think we all share the view that this 

is an appropriate circumstance in which you may consider the possible impeachment of a Federal judge. 

Thank you. 

[The prepared statement of Mr. Gerhardt follows:] 

26 

PREPARED STATEMENT OF MICHAEL J. GERHARDT


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Mr. SCHIFF. Professors, thank you very much for your testimony. 

I am going to start with a few questions, and then hand it off to 

my colleagues for their questions. 

I want to ask you a very narrow question. You have all testified 

to the effect that conduct that takes place before someone is on the 


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Federal bench may be considered in determining whether an impeachment is warranted. In part, it may depend on whether the 

Senate was—I think, Professor Amar, in your written testimony 

you said whether the Senate was aware of the conduct, for example, or whether there was some kind of a fraud on the Senate. 

The Senate, in the background interviews conducted through the 

FBI or in questionnaires or in testimony obviously can’t ask a specific question, did you receive kickbacks from attorneys while you 

were on the State bench, because they don’t know the conduct specifically to ask about, so they generally ask fairly general questions. I would like to acquaint you with some of the questions that 

were asked of the judge and ask you whether there was an affirmative obligation to disclose such that the failure to disclose would be 

considered a fraud on the Senate. 

In the FBI background interview, the FBI agent reports Porteous 

said he is not concealing any activity or conduct that could be used 

to influence, pressure, coerce, or compromise him in any way or 

that would impact negatively on the candidate’s character, reputation, judgment, or discretion. 

Similarly, there was a question in one of the Senate questionnaires which said: ‘‘Please advise the Committee of any unfavorable 

information that may affect your nomination,’’ and the judge’s answer was: ‘‘To the best of my knowledge, I do not know of any unfavorable information that may affect my nomination.’’ 

Similarly there was another question: ‘‘Is there anything in your 

background that, if it came out, could embarrass the President?’’ 

Were these questions sufficient to raise an obligation of disclosure on the part of the judge such that the failure to disclose either 

the relationship with the bail bondsman or the kickback relationship with the attorneys would in your view constitute a fraud on 

the Senate sufficient to warrant his impeachment? 

Mr. GERHARDT. I suspect we are all in accord on this. I think the 

answer is overwhelmingly yes. 

I think that this is actually not a hard case, Mr. Chair. The fact 

is that, to begin with, you can use your common sense to simply 

look at the questions that were asked and look at the kind of misbehavior, the kind of conduct that wasn’t disclosed, and understand 

that that is exactly the kind of thing the Senate would have wanted to know. 

In fact, the behavior here isn’t just accidental. It is not one or 

two circumstances. It is a pattern of misconduct that suggests a 

level of intent that is disturbing. And I suspect that it is exactly 

the kind of thing the President would have wanted to know, and 

it is also the kind of thing the Senate would have wanted to know. 

And I think the failure to disclose is an affront to both the President’s nominating authority and Senate’s confirmation responsibility. 

I might just go one step further, if I may. I have actually thought 

about that question a lot, Mr. Chair. And I keep come back to the 

same thing. I think, what do I tell my students? We have the responsibility of educating law students. And if they are faced with 

a question like this and you don’t impeach, they get the message 

that there is a level of corruption that is permissible, that there is 

a level of disclosure they don’t have to make to accountable bodies. 

34 

The fact is that common sense suggests that there should have 

been disclosure. The very fact that these things weren’t disclosed 

I think suggests, again, a disturbing level of intent but also a refusal to do something I think that is plainly required by those 

questions. 

For example, would this information negatively impact the character of this judge? It is more than obvious the answer to that is 

yes. And the same would follow with every other part of that standard or that question that you mentioned. 

And so I would like to tell my students that there is not a minimal level of corruption that is allowable for people to be a Federal 

judge. They are going to be applying for jobs and things like that. 

They are going to be asked questions like this. And in those circumstances they will have an affirmative duty to disclose anything 

along these lines. The same should be held true for people who 

hold high office, including Federal judgeships. 

Mr. AMAR. I agree with everything that my friend has said, and 

I would add a few additional points. 

First, I think one could take the position that mere affirmative— 

excuse me, the mere failure to disclose something like this is itself 

impeachable just because it is such serious information that is 

being withheld. But you don’t need to go that far, because here 

there actually are misrepresentations, lies. There are questions 

that are broad, but there are questions, and he actually gave false 

answers to them where I think he actually was under an affirmative obligation to disclose. But you don’t even need to go that far. 

Second, again, we are not talking here about criminal prosecution. There are criminal cases with Federal District Court opinions 

where questions were asked of comparable breadth and people actually didn’t quite tell the whole truth. We just all took oaths to 

tell not just the truth but the whole truth. And there are criminal 

prosecutions that are going forward, in the Kerik case and other 

cases, where there was a comparable misrepresentation. 

Here, though, it is so much easier, it seems to me, because we 

are not talking about putting him in jail, we are talking about 

withdrawing the very position that he wrongfully got through these 

lies and that he never would have gotten had he been truthful, had 

he told the whole truth, as was his obligation. 

Third, yes, the questions were broad, partly because it is impolite 

to be more specific, especially without any basis for this, but everyone knows what is actually at the core of the question. Are you an 

honest person? Are you a person of integrity? Do you have the requisites to hold a position of honor, trust, and profit? Do you have 

judicial integrity? That is at the core of all these questions. That 

is not at the periphery. 

And what he lied about was his gross misconduct as a judge: taking money from parties, taking money in cash envelopes, not reporting any of this to anyone. There is a pattern. And to the extent 

that you are even just focusing on his misrepresentations and lies 

and fraud before the Senate, don’t give him the benefit of the 

doubt, because even—because it is part of a larger pattern. 

So I don’t think—the hearings, Michael is absolutely right, it 

would really be unfortunate if you had to ask specific questions of 

a green eggs and ham variety. Were you a crook in a box? Were 

35 

you a crook with a fox? Were you a crook in the rain? On a train? 

You know, we know what those questions at their core was about, 

and he lied at the core. There is vagueness at the periphery, but 

this was really central. 

Mr. SCHIFF. Professor, let me refine my question a little further 

if we could. We don’t always have the opportunity to—this is a 

former law student’s revenge here, being able to question the professors with hypotheticals nonetheless. 

We have conduct here that occurred both prior to Judge Porteous 

being on the Federal bench, conduct that in many cases bleeds into 

while he is on the Federal bench, a continuation of relationships 

and the corrupt relationships, and then we have the false statements to the Senate. But let me ask you a narrow question. Let’s 

say that all we had were misconduct of the nature that you have 

become familiar with that pre-dated his service on the Federal 

bench, wasn’t within the knowledge of the Senate. But let’s remove 

the affirmative duty to disclose and the questions of the Senate, 

and let’s just focus on the conduct that took place before he was 

on the Federal bench. Do you believe that conduct in and of itself 

would be a basis for impeachment? Is there ample precedent or any 

precedent that conduct that solely predates the Federal bench in 

and of itself is a sufficient basis to impeach? 

Mr. AMAR. His concealment of this—if he had told everyone 

about it and been confirmed anyway, then in effect there is a kind 

of res judicata in the Senate itself that, having been given the facts 

and fairly adjudicating whether they want this person to hold office, but when he withholds that information from the Senate, even 

if he had never been asked a direct albeit broad question, there is 

a certain kind of concealment that was in his own—you know, he 

was the master of his own fate. He could have made different 

choices. He could have come forward, but he concealed it. And that 

undercuts his ability to be a judge. 

Anyone who comes forward just knows now once these facts come 

to light, you know, how is any litigant, how is any lawyer going to 

be able to feel that this person is a fair and honest, impartial—is 

not selling justice? 

And all he had to do in the Liljeberg case, for example, was 

recuse himself. All he had to do here, if he doesn’t want all this 

to come to light, is just not allow his name to go forward. But he 

did. And by allowing his name to go forward, I think he actually 

then was under a certain duty not to conceal this stuff. It is a kind 

of obstruction. And when he insists on hearing the Liljeberg case 

rather than simply recusing himself, he had easy outs actually if 

he wanted to keep this in the deep past. 

Mr. SCHIFF. Let me ask you, if I could—I have two more questions, and I am already over my time, but maybe you could start 

with one of them. 

One is, I would like to get your thoughts on the bankruptcy 

issues. If you assume the facts are that the judge filed a bankruptcy petition in a false name, did so on the advice of his counsel, 

corrected the false statement a couple weeks later or some weeks 

later, then during the bankruptcy violated the bankruptcy court’s 

order by incurring additional debt by borrowing money, markers at 

36 

casinos, by taking out another credit card, are those allegations 

sufficient for an article of impeachment? 

Mr. GERHARDT. If I may, I think the answer to both of your questions is yes. 

We should keep in mind that a Federal judge is a public symbol 

of the law. And in the circumstances in which we have got—the circumstances that we have got, we can look at that past behavior 

and, as it comes to light, if we are talking about the first example 

you gave, that is clearly the kind of behavior which undermines his 

ability to maintain that position of being a public symbol of the 

law. 

Say somebody is a Federal judge and was a war hero, and then 

it turns out that later it is disclosed he was guilty of all sorts of 

war crimes. I think that is a circumstance in which you could probably say, look, that clearly undermines his integrity and the symbol, the confidence people would have in him because it changes 

your view of him. It changes your understanding of his moral, in 

a sense, qualities or qualifications to be a judge. 

In terms of the last—the second example you gave, I think the 

answer to that is going to be yes as well, because I think that in 

a circumstance like that, again, it is not just that it fits into a pattern of failing to follow the law or to do the right thing, it also reflects a level of disdain for the law that I think is just simply incompatible with being a Federal judge. 

Mr. SCHIFF. Professor Geyh, you want to have the last word on 

these issues? 

Mr. GEYH. Sure. Really two follow-up points, one to a point that 

Akhil made before. I think that even if we take the confirmation 

proceedings out of the equation and simply focus on his behavior 

as a State court judge, I think, you know, accept the hypothetical, 

for example, that a judge is discovered while a State judge to have 

committed serial murder—to me, no one in their right mind would 

suggest that that wouldn’t be disqualifying of Federal service simply because it had occurred while he was a State court judge. From 

there you simply have to ask yourself whether the conduct as a 

State judge is sufficiently egregious to rise to an impeachable 

standard. 

And I would call your attention to Mike’s point that we are really 

talking here about a political crime in which the focal point is 

whether this judge has violated the public trust. And, to me, a quid 

pro quo arrangement with bail bondsmen, accepting kickbacks for 

curatorships, is the kind of corruption that fairly may be characterized as a violation of the public trust. Who cares if it occurred before? 

And if you are looking for precedent, in my line of work, in 

States all over the country it is quite common for a judge to be subject to disciplinary proceedings, which can include removal, for conduct that they engaged in not just when they were a judge in the 

current term, but in a previous term, in a previous incarnation as 

a judge of a different sort, and when they were in private practice. 

So, to me, I am quite comfortable with that notion. 

As to the bankruptcy point, whether it is impeachable, it just 

seems to me that if a judge is not going to take the law seriously, 

first by filing under a false name and then by going so far as to 

37 

essentially flout orders of the Court in that proceeding, that strikes 

me as the kind of behavior that this Committee is well within its 

rights to think of as the kind of behavior that violates that public 

trust, which is the operative standard for defining a impeachable 

crime or misdemeanor. 

Mr. SCHIFF. Thank you. 

Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Let me ask each of you to take us briefly through the meaning, 

in your view, of the phrase ‘‘treason, bribery, and other high crimes 

or misdemeanors’’—if I am quoting that correctly—‘‘treason, bribery, and other crimes and misdemeanors against the United 

States’’. 

What does that mean, particularly high crimes and misdemeanors? Is that, as some have argued, former President Ford 

when he was in the House of Representatives maintained that an 

impeachable offense was whatever Congress said it was? Do you 

agree with that? 

Mr. AMAR. With respect, no. He is a graduate of my law school, 

his portrait hangs right below my office and a great man, and he 

might have had a different view once he became President of the 

United States. 

And the reason—and Michael’s book is very good on just that 

question. A person—here is why it is clear that that can’t be the 

standard. Imagine a President who vetoes a bill in good faith because he thinks it is bad for the country. That could never be the 

basis of an impeachment. A good-faith—no bribe, no—because if it 

were, it would undermine the very structure of the Constitution. In 

order to overturn the veto, you need two-thirds of the House and 

two-thirds of the Senate. In order to impeach the vetoer, you only 

need a majority of the House and two-thirds the Senate. And it can 

never be the case that you could basically get around the veto override provisions by impeaching the person merely because you disagreed with the veto. 

Mr. GOODLATTE. I hear you. 

So now take it to the next step, which is, if it is not that, what 

is high crimes and misdemeanors? 

Mr. AMAR. It is not criminal on the other side. And that has been 

very well established, as Michael’s book and others show. I think 

really almost all the experts are of that view. So this is pretty easy, 

because this is akin to bribing your way into office. So that is a 

pretty easy thing, whether criminal or not. 

I used an example borrowed from Charles Black, who you have 

heard invoked. I will just mention it, because I want you to know 

that I wrote this in 2005, just because it might have a certain contemporary resonance. An impeachment standard transcending 

criminal law technicalities made good structural sense. A President 

who ran off on a frolic in the middle of a national crisis demanding 

his urgent attention might break no criminal law, yet such gross 

dereliction of duty imperiling the national security and betraying 

the national trust might well rise to the level of disqualifying misconduct. 

I mention that just because again this is before anything happened in South Carolina and all the rest. It is 2005. But it is nonVerDate Aug 31 2005 16:16 Jan 26, 2010 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 H:\WORK\JUDIMP\121509\54074.000 HJUD1 PsN: 54074
38 

criminal, but it is basically gross dereliction of duty, a betrayal of 

the public trust. 

Mr. SCHIFF. You didn’t mention Argentina in your—— 

Mr. AMAR. Charles Black actually in this book instead talks 

about going off to Saudi Arabia to have four wives, actually, and 

says that is an impeachable offense. I am not making that up. 

Mr. GOODLATTE. Professor Gerhardt? 

Mr. GERHARDT. I agree with everything Professor Amar has said, 

including South Carolina. No. I am from North Carolina. I am 

quite fond of South Carolina, I should add. 

What I want to just amplify is the fact that there has been so 

much effort to understand those words that you have asked about. 

What do these words ‘‘high crimes or misdemeanors’’ mean? And I 

think we have settled on a pretty widespread consensus that they 

refer to what I was talking about earlier as political crimes. 

And if you read the Constitution convention, ratification convention, the people supporting the Constitution are using the same 

phrases over and over again. They are talking about crimes against 

or injuries to the Republic, offenses against the Republic. They are 

talking about breaches of the public trust, abuse of power. 

The one thing that is also helping to explain why they are using 

all those phrases is they didn’t want to tie it down. They didn’t 

want it to be anchored down to some kind of codification, because 

they knew that it had to adapt to circumstances as they arose. And 

that is precisely what we have learned over time in this country, 

that the Congress develops a common law of impeachment, so to 

speak, that it deals with one case at a time, and it deals with each 

case on its merits. 

The fact that we don’t have anything on all fours with this current case is of no real importance or consequence. What is important is that, as Professor Amar and Professor Geyh were pointing 

out, you have a pattern of misbehavior here which I think undermines the ability to function as a Federal judge. It robs the person 

of all the qualities and all the qualifications they need to function 

as a Federal judge. That would seem to fit very neatly into what 

the Framers meant by that phrase. 

Mr. GOODLATTE. Professor Geyh? 

Mr. GEYH. I am kind of reminded of a line from Forrest Gump: 

Stupid is as stupid does. And I think in this case impeachment is 

as impeachment does. 

And one of the things that I would add to the mix—and I should 

say there is a self-interested aspect to this. When academics write, 

they worry that, apart from their mother, no one reads their work, 

so this is an exciting opportunity. 

But one of the things that I looked at in the impeachment context was to look not just at the 13 formal impeachments but the 

80 investigations that have gone forward, many of them culminating in resignation of the affected judge, which to me means 

something. And I think it is useful to note that the kinds of behavior over time that have resulted in impeachment inquiries culminating in resignation include things like favoritism, like abuse of 

administrative power, like grossly intemperate behavior, abuse of 

office resources, and so on. So that there really is a little bit more 

precedent there. It is not binding, and it is not really as complete 

39 

in the sense that we didn’t see it through to completion, but it is 

not irrelevant in trying to get a feel for what an impeachable crime 

and misdemeanor means. 

Mr. AMAR. And the very first impeachment resulting in a conviction of a Federal judge is of Judge Pickering, and he violated no 

criminal law, but he was—— 

Mr. GOODLATTE. I think we are sold on that point. 

Mr. AMAR. And convicted of intoxication and indecency on the 

bench and abusing power. 

Mr. GOODLATTE. Thank you. 

Let me ask another question, and we will start with Professor 

Gerhardt. 

In evaluating Judge Porteous’spre-Federal bench conduct, what 

is the significance of the fact that the conduct at issue with Judge 

Porteous involved acts taken as a State judge in his judicial capacity? Would that be more important than, for example, other private 

misconduct he might have taken prior to ascending the Federal 

bench? 

Mr. GERHARDT. I think the basic answer is going to be yes, but 

I think this is an area where you can’t come up with hard-and-fast 

rules. But I think the fact that he was a State judge, a job, a position, as Professor Amar has suggested, that is quite analogous to 

the one he was about to get in the Federal system is one in which 

you could sort of find very good evidence as to whether or not he 

has the qualities that we expect a Federal judge not just to have 

but to maintain. So we could look to that past behavior as a State 

court judge and ask, to what extent is he behaving in this job in 

the way in which we would expect a Federal judge to behave? 

That is precisely why the Senate would have wanted to know 

this. It is precisely why the President would have wanted to know 

it. And it is quite significant—and nobody probably knows this better than Judge Porteous—had he told the President about this, of 

course, he wouldn’t have been nominated. Had he told the Senate 

about this, of course, he wouldn’t have been confirmed. That tells 

you something. 

Mr. GOODLATTE. If no one has any disagreement with that, let 

me go on to another question. Did it amount to a fraud on the Senate in his failing to disclose his prior conduct? 

Mr. GERHARDT. In a word, yes. 

Mr. GOODLATTE. Yes? We all agree with that? 

Did his failure to disclose his prior conduct prohibit the President 

and the Senate from effectively exercising their constitutional duties to vet him? I think you just answered that in the affirmative. 

Mr. GERHARDT. I will state it out loud. Yes, sir. 

Mr. GOODLATTE. Yeah, you may want to—— 

Mr. AMAR. Yes. 

Mr. GEYH. Yes. 

Mr. AMAR. And just on that one earlier point about misconduct 

as a State judge, that is why he is being basically nominated. So 

the fact that he was a State judge is absolutely essential to his 

being a Federal judge today. 

Mr. GOODLATTE. You have earlier commented on Judge Dennis’’s 

dissent in the Fifth Judicial Circuit Council opinion. And Judge 

Winters in his response to that dissent stated that the fifth circuit 

40 

dissenters tend to view each of Judge Porteous’sacts and the applicable rules in isolation from the others. Judge Winters wrote that 

the better way of looking at that conduct was the various acts must 

be viewed as a whole and the applicable laws and canons as a coordinated scheme. 

Think through for the Committee here, if you would, how you 

would approach articles of impeachment. Would you have one 

catch-all article of impeachment? Would you have several articles 

of impeachment addressing each of these areas of conduct? Professor Geyh? 

Mr. GEYH. Certainly you can have both. It seems to me that you 

are well within your rights to identify the Liljeberg scenario, the 

bankruptcy scenario, the bail bondsman scenario as free-standing, 

impeachment-worthy events and still have an omnibus provision 

which, in at least one impeachment, won the day. 

And from an ethics perspective it seems to me that, you know, 

courts everywhere look at discrete misbehavior in isolation fundamentally different than they do patterns of conduct and to disregard that fundamental point is to miss the point. 

What would make a potentially difficult case, if you view it each 

in isolation, becomes an easy case when you look at the behavior 

in composite. 

Mr. AMAR. There are two kinds of patterns. My colleague, Ralph 

Winter, talks about how the disclosure requirements and the 

recusal rules and the rules about not taking cash—not taking favors from parties sort of all fits together in a part of one reinforcing 

scheme. I think it is a beautiful refutation of Judge Dennis. So that 

is one kind of pattern within a transaction in, say, Liljeberg. 

But then there is the chronological pattern across the years. And, 

at the very least, when looking at the misrepresentations, it does 

suggest you shouldn’t give, as fact finders, the benefit of the doubt 

to Judge Porteous because there is a pattern, and he has abused 

any rights to have you give him the benefit of the doubt. That he 

shades the thing in Liljeberg by sort of being very misleading and 

false in his answers to Counsel Mole and does the same thing in 

the bankruptcy proceeding and does the same thing—and so as fact 

finders, you are I think entitled to draw inferences and see the pattern. 

And I agree with Professor Geyh that if there were a criminal 

analogy here, it would be RICO. It would be a continuing criminal 

enterprise in which there is I think you said a whole greater than 

the sum of the parts. So I think you could do belt and suspenders, 

the individual counts and a catch-all count. 

Mr. GOODLATTE. Professor Gerhardt? 

Mr. GERHARDT. And I certainly agree with that. 

I mean, just to reinforce what each of my colleagues have just 

said, I think—you could, I think, has an individual article that focuses on each episode of misconduct, but there is also the fact that 

they are not isolated from each other. They are not isolated from 

each other either in fact or in significance. It is particularly when 

you pull them together that you find that it is the same kind of 

misconduct over time. It is the same refusal to disclose, the same 

intent to hide, to defraud. In one case, it is bankruptcy; in another 

case, it is the Presidential nominating authority; in another case, 

41 

it is the Senate confirmation authority. There is a pattern here, 

and that pattern is not good for the Federal judiciary. 

Mr. GOODLATTE. Thank you. Thank you, Mr. Chairman. 

Mr. SCHIFF. Thank the gentleman. 

He yields back. Who seeks recognition? Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

I have one question that I would like to pose to all three of the 

gentlemen, and thank you for your testimony. Professor Gerhardt, 

it seems that we have been in this setting before. 

Mr. GERHARDT. Yes, ma’am. 

Ms. JACKSON LEE. And thank you. And it is good to see you 

again. 

There is some question about the Justice Department’s decision 

not to proceed in any prosecution, or at least has not made a determination of the individual before us, Judge Porteous. And I would 

ask the three of you your interpretation of how we should be impacted by the fact that the Justice Department has not moved forward on the case. Professor, and if the three of you could answer 

that, I would appreciate it. 

Mr. GERHARDT. I think it has no impact. I think it is of no real 

consequence. 

As I mentioned earlier, this is not a criminal proceeding; and so 

the charge that the House has got is very different than the charge 

that a prosecutor has got. The burden of proof is very different, the 

judgment is different, and so you have the power to consider the 

evidence under whatever burden you think is appropriate. And you 

wouldn’t be bound in any event by what the Justice Department 

did, even if it sought a conviction. And the important thing I think 

is to make an independent judgment. And so the Constitution allows that, I think expects that. And so I don’t think the failure of 

the Justice Department to do anything is of—any real consequence. 

Ms. JACKSON LEE. Thank you. 

Professor Amar? 

Mr. AMAR. Here are a few additional reasons I think for Michael’s bottom line, which I share. 

Several of the counts here are themselves not criminal offenses, 

so of course they wouldn’t have been ruled on by the Justice Department, but they are very clear cases, episodes for impeachment. 

Here all that is being done is removing a position that the judge 

never should have had in the first place. It is not like putting 

someone in prison, taking away their very life. It is not even retributive. It is just preventative of future wrongdoing and restorative 

in a way. He should never have had this position in the first place. 

Now, if you were persuaded that on the facts of some of these 

other transactions he actually was not guilty of anything, well, 

that, of course, would bear on your judgment. If you actually had 

some findings, which I don’t think we do have, in his favor, made 

by some investigator that certain witnesses were not reliable, well, 

then that might actually very much influence your view of those 

episodes and to that extent perhaps your view of the whole pattern 

and credibility and all the rest. 

Mr. GEYH. Same point as Akhil just made. It just seems to me 

that there are lots of reasons for not prosecuting someone. Some of 

them will exonerate the person involved, and that makes a big difVerDate Aug 31 2005 16:16 Jan 26, 2010 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6601 H:\WORK\JUDIMP\121509\54074.000 HJUD1 PsN: 54074
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ference. Some of them are the statute of limitations just ran out, 

which has very little to do with whether he engaged in the underlying conduct. And, as an ethical matter, it may affect whether he 

technically violated the law. I don’t think it should, but it doesn’t 

affect the fact that he engaged in a serious impropriety, and the 

only reason he hasn’t been subjected to criminal conduct is they 

have limited resources or they have made a discretionary call. 

It seems to me that this body still has a responsibility to step up 

in those situations where you conclude that theunderlying conduct 

was unacceptable, regardless of whether another branch of government chose to prosecute. 

Ms. JACKSON LEE. Very quickly, and I think my Chairman asked 

this question earlier, and I have been asking this question. In the 

1994 application for Judge Porteous for a Federal bench, there was 

that famous sentence that says, is there anything that you need to 

share with the President that would be embarrassing? And I don’t 

know if it was slash embarrassing or some other word. And I’ve 

asked this question before, and I would like the scholars to answer 

in as brief as possible, that very answer of ‘‘no,’’ how do you couch 

that in terms of both our work, and I know I think I heard you say 

the Senate needed to have information, but was there a consciousness of thought? Was this person thinking that those were my personal matters that I gambled or stretched the relationships with 

bail bondsmen? What does that no mean to you. 

Mr. GERHARDT. That ‘‘no’’ is quite problematic. And I would analyze it two different ways. I mean, the first is I do think there’s 

an obligation to answer that question and to answer it honestly. 

And the honest answer would be forthcoming with information. 

And there’s no secret about what that question is seeking. Common sense alone I think would suggest to us what’s the kind of information that ought to be revealed. 

But I might just go one step further. But all of us have studied 

the process of judicial appointments. And the other thing to keep 

in mind is that question gets asked not just in writing, but it’s 

going to get asked in person, over the phone. It’s going to get asked 

more than once in the process of being considered for nomination. 

So even if it doesn’t show up in a form like that, there’s a problem, 

and there’s a failure to disclose. This just makes it all the more 

problematic because there’s a formal requirement, and the failure 

to answer is clear evidence of the defrauding of the Senate in this 

circumstance. 

Mr. AMAR. And it’s not—the ‘‘no’’ covered up not just mere private failings; you know, back in the third grade, I dipped Suzie’s 

pigtails in an ink well. This isn’t just private; it’s misconduct as a 

judge. It’s taking cash in envelopes from lawyers who have cases 

before you. And the only reason—and don’t be too tender. He was 

not in some trap here. All he has to do is simply say, I do not wish 

to be considered for this position. This is not like some independent 

council going after you, and now you’re in a kind of a perjury trap 

or anything like that where there’s the ‘‘exculpatory no’’ doctrine, 

which the Supreme Court has rejected by the way. It’s nothing like 

that at all. 

If you don’t want to put yourself in an awkward position, don’t 

put yourself forward in this way. And he did more than merely conVerDate Aug 31 2005 16:16 Jan 26, 2010 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 H:\WORK\JUDIMP\121509\54074.000 HJUD1 PsN: 54074
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ceal. He lied. There was a pretty direct question. At the heart of 

the question is, are you an honest government official? Because 

you’re being asked now to—you’re asking us to give you position as 

an even more powerful government official. That’s at the heart of 

the question. It’s not some peripheral thing. And he just straight 

out lied. 

Mr. GEYH. It bears emphasis that the kind of conduct we’re talking about is not simply private behavior here. This is a judge who 

stands accused of taking kickbacks from curatorships he’s appointing to friends. This is a judge who is accused of engaging in quid 

pro quo relationships with bail bondsmen. If those events did not 

trigger a yes response to that question, you know, in all innocence, 

I didn’t think that’s what you meant, the man has no moral compass whatsoever. I mean, it just seems to me it’s very difficult to 

conceive that someone asked that question would not recognize 

that these are the kinds of events for which answers are sought 

and to step away from the process. 

Mr. GERHARDT. If I may, I just want to add one thing that simply 

reinforces what’s been said. 

Just imagine what happens if you don’t act here. What kind of 

precedent does that set? It says to people that you may take this 

road in the nomination process and confirmation process. That is 

to say, you may undermine the integrity of those processes because 

it’s okay; that’s a level of corruption we can tolerate. It seems to 

me that the answer here is quite clear: That’s not a level of corruption we should tolerate. 

Ms. JACKSON LEE. Chairman, thank you. 

And I thank the witnesses for the clarity in their answers. 

And I would simply say, Mr. Chairman, as I yield back to you 

that this seat that I hold in the 18th Congressional District for 

some reason seems to find its way along this pathway. My predecessor Barbara Jordan was in the Nixon impeachment, and I certainly didn’t imagining that I would be participating in one in the 

1990’s. 

And I sought the answers for clarity because people may not understand the impeachment proceeding in the 1990’s blurred a lot 

of answers and questions. And some would make the point, well, 

no one has prosecuted in this instance, and so what is the basis 

of your moving forward. And I think the clarity of what levels of 

integrity and responsibility one has, the handling of Federal documents is important because we have to make deliberative decisions 

and not take this very high act of government lightly. 

And I think it’s important as we do this in a studious and deliberative way, and I thank the Chairman and the Ranking Member 

for presenting this to us in this manner. 

I yield back and thank you. 

Mr. SCHIFF. The gentlewoman yields back, and I thank the gentlewoman. 

And I just mention to the professors, in terms of the fact pattern 

that we’ve asked you to analyze, along the lines of what you’ve 

been describing, we had testimony I think last week from one of 

the bail bonds people that when he asked the judge to set aside a 

conviction of one of his employees, the judge indicated that he 

would only do so after his confirmation, so prior to taking the 

44 

bench but after confirmation, which I think indicates a knowledge 

that these things could have affected and indeed would have affected his confirmation process. 

Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

I heard someone say earlier today on the panel that, or indicate 

on the panel, that an impeached and convicted judge loses certain 

benefits that he would otherwise, he or she would otherwise be entitled to. Can you follow up on that? 

Mr. GERHARDT. Well, as you know, there are two sanctions available. One is removal from office. The other is disqualification, 

which would affect the benefits. So it would only be if the House 

chose to use both sanctions that in fact it would result in the circumstance you describe. 

Mr. JOHNSON. Disqualification, can you go into that? 

Mr. GERHARDT. There have been two people in the history of this 

country who have been both removed from office and disqualified. 

Essentially these two punishments or these two sanctions are 

among the things that make impeachment unique. No other body 

in a sense has the power to do those things, to remove somebody 

from office or to go further to disqualify them from certain pensions, certain benefits and also perhaps from the opportunity to 

serve again in the Federal Government. The choice as to which 

sanction should be used, one or both, is up to the House. 

Mr. AMAR. So with respect—in the case of Judges Archibald and 

Humphreys, I’m actually reading from Professor Gerhardt’s book, 

the Senate imposed not just the automatic verdict upon guilt of removal from office but basically said these two people are forever 

disqualified from ever again holding a public office. You know, so 

they’re basically ineligible to be appointed by a later President and 

confirmed by a later Senate. Their impeachment verdict bars them 

from, disqualifies them from public office holding, which actually is 

not to be equated with a Membership in the House or Senate. 

Those aren’t Federal officerships, and so that’s a different situation. You are still constitutionally eligible to serve as a Representative Or Senator, but you’re disqualified to hold a future office if the 

Senate so determines at the end of its process. 

When it pronounces guilt, it has the choice of just simple removal 

or removal plus disqualification. It can’t go further than that. It 

can’t throw you in jail. It can’t chop off your head. The power of 

an impeachment court is limited to removal and disqualification. 

Mr. JOHNSON. Thank you. No further questions. 

I yield back. 

Mr. SCHIFF. I thank the gentleman. 

Can I just, Mr. Gonzalez, if I can just follow up with a question, 

because my understanding, Professor, and correct me if I’m wrong, 

is that the disqualification goes to whether they can hold further 

offices, but that upon impeachment without disqualification but 

just the impeachment itself, you lose the pension, et cetera, that 

goes with the job. That was my understanding. 

Mr. GERHARDT. I think that that’s probably right, though I suspect Professor Geyh would know that better than I. 

I’m sorry Charlie, but I think there are requirements, obviously, 

for meriting the pension, but I would have to look more specifically 

45 

at the particular requirements to really be sure whether you would 

actually lose those benefits just upon removal. 

Mr. SCHIFF. Thank you. 

Mr. Gonzalez. 

Oh, I’m sorry, Professor Amar. 

Mr. AMAR. To the extent that Professor Geyh mentioned that 

there are lots of previous precedents of people resigning during the 

impeachment investigation process, and I believe maybe in the case 

of Kent, that that happened recently. And to the extent that Judge 

Porteous, the pattern here suggests that, well, he’s a gambler; 

maybe he thinks he’s just gambling with House money here. He’s 

got nothing else to lose. The criminal prosecution is off the table. 

He’s taken up a lot of taxpayer time and money, and your valuable 

time. 

So I might take the position that if he were impeached and removed, I would be very interested in whether there could be any 

clawback under civil statutes in a proceeding instituted by the Justice Department—I haven’t investigated and researched this— 

about basically all the money that he was paid as a Federal judge, 

you see really he didn’t deserve it. He should never have been a 

Federal judge from day one. And this is part of the ill-gotten gain 

of his fraud. 

And if an impeachment court were to rule in an impeachment 

verdict that his very acquisition of the office was fraudulent, not 

just pension and future payments, but maybe even past things 

might be on the table. And that might actually create—I mean, it’s 

just an interesting thing to think about just in terms of plea bargaining, so to speak, and inducing resignation. 

Mr. SCHIFF. Thank you, Professor. 

Mr. Gonzalez. 

Mr. GONZALEZ. Thank you very much, Mr. Chairman. 

And thanks to the witnesses. It’s been very informative, and we 

appreciate your testimony today. 

You’ve been called here in the instant case, but, obviously, what 

your testimony today and what we do may be looked upon by different witnesses prospectively, as you have referred to what has 

transpired in previous impeachment proceedings. So my question, 

even though it relates to the instant case, obviously has application 

I assume in the future depending what this Committee and what 

the House and then what the Senate would do if we move in a certain direction. 

In the broader sense, you are really looking at separation of powers. And it’s a very unique situation, and I think we have to be 

very careful when we proceed. In this particular case, I mean, 

there are so many instances that we could move forward on and 

such. And I think you were pointing out, you can do it very generally. You can also have it very specifically and so on. 

Something that has concerned me during this discussion is: What 

was the Senate privy to? How much did the Senate know? Now, in 

this case, I mean, there’s so much going on that you can probably 

make a representation that the Senate was not aware of, never was 

able to inquire. But is the Senate really restricted as to the type 

of questions and inquiry that can be made during the confirmation 

process? My memory serves me that many things are discussed, asVerDate Aug 31 2005 16:16 Jan 26, 2010 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 H:\WORK\JUDIMP\121509\54074.000 HJUD1 PsN: 54074
46 

sociations with individuals, associations with organizations, to the 

point where you can determine whether someone may even be a 

racist. 

So I’m just going to add, the first question is: What are the limits 

of a Senate confirmation? To what extent can we rely that, to some 

degree, questions were made, and maybe not in this particular case 

as to all of the allegations, but some? That’s the first question. The 

second one is: At what point do we quit looking backwards? If a 

judge is on the Federal bench for 10, 15 years and something is discovered: How far back do you go? 

Because the ultimate question, and this is the third one, have 

you ever had impeachment proceedings and trial predicated more 

on a political basis than what I would refer to as something less 

than political in nature? As I said, if you look at the potential, 

what could occur—not that it has occurred, but the potential it 

could occur—and especially in modern times, could you have something that is completely politically motivated? Because I mean you 

see this happening today, maybe not in impeachment proceedings, 

and the danger that that would pose? And would it be preferable 

to be as narrow and specific as possible so that there’s not a broad 

interpretation that could be misused/misinterpreted in the future? 

Mr. GERHARDT. Those are great questions, and I will try to answer them as briefly as possible. I think the short answer to the 

last question, I think, is it probably is a good idea to be narrow to 

try to deal with the case in front of you, not to worry about the 

next case. That’s how the common law typically or often evolves, 

and that’s how impeachment itself has evolved over time. 

But in terms of the specific questions, first of all, what did the 

Senate know? I’m pretty confident they didn’t know anything about 

this. 

I also know from personal experience having worked in the Senate side, while I’m here today in my personal capacity, that there 

is voluminous disclosure requirements. The fact that this information wasn’t found suggests that someone wanted it to be hidden. 

And that in itself, as I’ve said before, is disturbing. 

The Senate tries to be as thorough as possible. And their questions are designed, as Professor Amar and Professor Geyh have 

suggested, to try and elicit as much information as they can about 

somebody’s character, about their integrity, to be able to serve and 

to be fit to serve as a Federal judge. 

I don’t think the Senate knew this information. I’m confident had 

the Senate known it, it would not have done what it did. 

The second question is how far do you—when do you stop looking 

backwards? I can’t answer that question. I think the evidence is, 

in a sense, what it is. You’re in a better position to make a determination about when, in a sense, you found enough. The very fact 

that you feel like there’s a morass out there of evidence or swamp 

of it is itself rather disturbing and, again, tells you something 

about the nature of this case. 

And the last question is the concern about a purely politically 

motivated impeachment. That’s precisely why the Framers designed the process the way they did. They divided impeachment 

authority between the House and the Senate. They required a majority in the House, a super majority in the Senate. And that was 

47 

purposeful, because they wanted to make it difficult. They wanted 

to ensure at the end of the day, if there were a removal, it would 

likely consist of a bipartisan consensus. In order to get two-thirds 

in the Senate, you would have to reach that point; you couldn’t just 

do it on party lines. 

The Framers understood that. So they were trying to create a 

process that was both fair and thorough, and there are various 

safeguards along the way, including the division of authority between the House and the Senate. 

Mr. AMAR. On the three questions, on the issue—just to begin at 

the end, yes, I think it’s wonderful if this doesn’t—if impeachment 

process is not political. And I think Professor Gerhardt just nailed 

it; the best way to do that is to be bipartisan. And I haven’t sensed 

as a witness any whiff of any kind of partisanship in this. And I 

think if the impeachment managers who go forward reflect both political parties, that will be evidence to the country that this is not 

a political thing. It’s not left, right, Republican, Democrat. 

I share the—on the second, about sort of when is the past buried, 

here we have ongoing and affirmative concealments. The past is reemerging—the State court passed in the Liljeberg case on the Federal bench—and so there’s a kind of ongoing concealment that’s relevant to one’s duties as a Federal judge. And so the past really 

doesn’t stayed buried when you’re basically committing ongoing 

misconduct analogous to obstruction, a covering up past misdeeds. 

So it’s not quite like Jean Valjean and having stolen a loaf of 

bread a long time ago and having led a wonderful life in between, 

and then somehow it comes back to haunt you. 

On the most narrow basis for impeachment, I share Mike’s instinct. My own thought was for me the easiest—there are so many 

things here, but if we talk about the bankruptcy, well, that’s arguably private. The State court stuff, well, that’s arguably just State 

court stuff. 

But I think the clear misconduct in the confirmation process 

itself is very clean and also shows that this isn’t really punitive; 

you’re not actually taking away something that was ever rightfully 

his, you know, punishing him for something deep in his past. He 

never should have gotten this position. He got it only because he 

lied. Someone else was entitled to this in effect, and he took it out 

of the hands of someone who would have, you know, been a more 

honest candidate. And that’s a pretty narrow basis actually for 

this, not remotely punitive. 

Mr. GEYH. Two quick points. One is, you asked about how far 

back impeachable behavior can go. And it seems to me that the answer has got to be, that depends on the behavior. I mean, if the 

standard that you’re looking to deal with is whether the judge is 

currently unfit for office, in other words, that he has committed a 

political crime that violates the public trust, then you would look, 

you know, at what that behavior is and whether it impacts your 

current assessment. 

For example, if a 60-year old judge is discovered to be the second 

coming of Bernie Madoff in his 30’s, that may well be the kind of 

behavior that you would look at and say, my God. Despite the fact 

that it occurred decades ago, it is criminal behavior of an extraorVerDate Aug 31 2005 16:16 Jan 26, 2010 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6601 H:\WORK\JUDIMP\121509\54074.000 HJUD1 PsN: 54074
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dinary sort that would justify us looking at that for impeachment 

today. 

The political impeachment point, I’ll offer one embellishment, 

which is that there’s a trajectory here with politicized impeachments. When Justice Chase was impeached really in the very early 

days, it was for political purposes. People were furious with his decisions. The party in power was going after a judge from the party 

out of power. And there are episodes of politicized impeachments 

in the early stages; for example Judge Peck. 

And later they all failed, and I think they failed for reasons that 

Mike refers to. And you know, I think it’s telling that in the last 

15 years, we’ve had some Members of this body arguing for the impeachment of judges because they don’t like their decisions, and 

those really never left the chute. And I think the reason is that we 

have norms in place for over 200 years that say, we’re not going 

to go there. None of them have succeeded, and we’re not going to 

start now, and particularly if we focus and keep impeachment proceedings focused on this kind of matter—no one is going after this 

judge because of the decisions he’s made—that we’re focusing on 

targeting specific behavior that falls into conventional notions of 

misconduct, I think we’re fine. 

Mr. GONZALEZ. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. SCHIFF. Thank you. The gentleman yields back. 

Judge Porteous’sattorney Mr. Westling is now recognized for 10 

minutes to question witnesses. 

Mr. WESTLING. Thank you, Mr. Chairman. 

Gentlemen, I don’t think I’ll have too many questions. 

I wanted to start with Professor Amar, if I may. You commented 

on the fact that impeachment from a procedural point of view is 

not the same as a criminal trial, and in particular, you address the 

issue of the application of the Fifth Amendment self-incrimination 

clause. I note that the way that it’s worded both verbally here 

today and in your written testimony says ‘‘should not apply in all 

respects.’’ Are there certain respects in which you think it should 

apply? 

Mr. AMAR. I’m not sure that it should apply at all. But doctrine 

does distinguish between using the fruits, the derived fruits of compelled testimony on the one hand and using testimony, compelled 

testimony itself, on the other. So, for example, in the Miranda context, the doctrine is for unintentional Miranda violations, and Miranda is connected to the self-incrimination clause under Supreme 

Court doctrine. If someone was improperly Mirandized, the fruits 

are admissible, but the statement itself is actually itself often not 

admissible. And so one could actually distinguish between the compelled testimony itself and the fruits. 

Here’s another distinction in the doctrine. The doctrine in compelled self-incrimination says that the jury is not to draw any adverse inferences from a defendant who stands mute, and indeed, a 

defense attorney is entitled to an introduction from the judge to 

that effect. That goes beyond what the Fifth Amendment’s words 

say. It’s a later development and, in my view, partly because the 

rules of evidence don’t really apply, for reasons that Mike Gerhardt 

has explained in great detail. That’s another sort of aspect. 

49 

So I myself think perhaps none of the Fifth Amendment, in fact, 

self-incrimination should apply. Due process, yes; other basic fairness, yes. But it’s possible to imagine sort of a less exuberant position that compelled testimony should be excluded, but the fruits 

are allowable, and adverse inferences are allowable. 

Mr. WESTLING. Thank you. 

Gentlemen this is a question for all three of you, and it, again, 

relates to the Fifth Amendment issue. Are you all aware of any 

case in the past involving impeachment where immunized testimony of a judge who is the subject of the impeachment has been 

used as evidence in that case? 

Mr. GEYH. I am not. 

Mr. GERHARDT. I am not either, but I don’t think it has, as you 

know, any significance. 

Mr. AMAR. Nor am I. 

Mr. WESTLING. Thank you. Now, I want to turn to—— 

Mr. AMAR. And I am also not aware of precedents at least that 

are held in high regard. I don’t know any in fact in which Article 

III judges have tried to interfere with ongoing impeachment proceedings on any pretext. 

Mr. WESTLING. I appreciate that. There’s always room for levity, 

I hope. 

Gentlemen, you’ve discussed at some length your view that the 

judgeship here involving Judge Porteous was procured in part due 

to his failure to disclose certain things. I think the opinion has 

been as well that he may have actually lied or made misrepresentations. 

I’m not going to quibble with those statements. I understand 

your testimony. I suppose the question that I have is, if the Senate 

were aware of allegations of the type that were not disclosed and 

investigated them and found that they were not valid in some way, 

would that change your answer about the impact of Judge 

Porteous’sstatements? 

Mr. GERHARDT. Can I just ask a clarification? You meant at the 

time of the confirmation, they investigated and found? 

Mr. WESTLING. That’s correct. 

Mr. GERHARDT. I have—I will probably give you two separate answers. 

I mean, one is I think that it is possible if the Senate is made 

aware of information and they proceed in light of it after doing 

factfinding, they’ve effectively ratified it, that they’ve effectively 

made their decision that that’s not disqualifying information. 

But there’s also a question about the nature of the factfinding. 

In other words, a lot just depends upon what it is the Senate 

looked at. In other words, let’s say they looked at one thing, didn’t 

find a problem, but didn’t look in another direction where there 

was a problem. So it becomes complex; that is to say, what did they 

know, and when did they know it? 

Mr. WESTLING. Does anybody have anything to add or a different 

viewpoint? 

Mr. AMAR. They’re in a very good position to decide what they 

thought they were being told and not being told, so I think this is 

not—this is an impeachment of someone who became a judge by a 

vote of the Senate. And what this House is allowing is the Senate 

50 

to have a revote, and they’re not going to do it lightly. They don’t— 

it requires a two-thirds vote, which is a very important safeguard 

in the process. 

So if—I suppose if someone subject to the confirmation process 

were affirmatively told, yes, we know about all of this, and we’re 

okay with it, and we just want you for the record to say a certain 

thing, well, then it might be unfair then to say, ah, but the one 

thing that you said was a little misleading in isolation because it 

was in the context of some largerunderstanding in which we all 

knew that certain things were not within the main scope of the 

question. So if there were a larger context behind the question. 

But you know, I basically think the question was at its core, have 

you been an honest public servant? And there was an affirmative 

misrepresentation. And it’s hard for me to sort of imagine facts 

that would change that. It would change my view of the Senate 

quite a lot if you told me, oh, well, there’s some background understanding that when we asked you, you know, X, what we really 

mean is not X. And you know, unless we say Simon Says or Mother 

May or something, you’re supposed to not understand that we 

mean these words in their pretty obvious straightforward sense. 

Mr. WESTLING. I would note, I guess, in following up on that, 

that I think the supposition by the panel, understandably based on 

the facts that have been presented, is that certain events have 

taken place, and they have a certain character to them. 

What is less clear to me is whether that was what the Senate 

investigation revealed. Clearly, FBI agents went out and interviewed people. They looked into allegations, and they made a report back. And I guess what is fair to say is that nobody in this 

room really knows what the content of that investigation was, what 

its findings were or what the conclusions were. Is that a fair statement? 

Mr. AMAR. I suppose. I have to confess, my own tendency is to 

be pretty skeptical when wrongdoers try to put other people on 

trial rather than to own up to their own responsibility for their own 

gross misconduct. And so I balk, with all due respect, at sort of trying to basically blame the Senate for this sort of thing. 

I believe actually there was an affirmative—in answer to Chairman Schiff’s question earlier, we don’t need to go that far. But I 

actually think there’s affirmative obligation for someone in this situation to actually come forward, even before being asked with this, 

and that any honorable person, you know, decent person, would actually understand that. And so, you know—and so I don’t think actually the thrust of a defense that tries to sort of blame others for 

not having done the investigation moves me very much. It actually 

seems chutzpah to me. 

Mr. GEYH. I have a hard time imagining what kind of information would have been elicited behind the scenes that would cause 

me to think differently about these relatively straightforward questions that Judge Porteous answered in the negative. I’m left to 

think there are obvious answers here that aren’t being made, and 

I can’t imagine what would change my mind about that. 

Mr. GERHARDT. I would echo those comments. I think that it’s 

probably fair to infer that the Senate was not aware of the information. The fact is that, you know, we ought to remember. I mean, 

51 

people have talked about the confirmation process being much—not 

just more intrusive, that is to say, it doesn’t just seek more information; it’s become more embattled. And the kind of information 

that would clearly in a sense stop a nomination I think would be 

some evidence of wrongdoing or some other egregious misconduct. 

So it’s I think almost unimaginable, at least to me, that there 

would be any revelation of misconduct of the sorts we’ve been talking about that would simply cause the Senate to look the other way 

or to treat it differently. The fact is we’re setting precedents all 

over the place. And if that were true, then the Senate will have to 

be accountable for having set a precedent I think that is a very 

dangerous one. 

Mr. WESTLING. I, perhaps, should clarify. My suggestion in no 

way was that the Senate knew about this and determined to go forward despite knowing it. I think my question is simply one of, we 

know there was an investigation. What we don’t know is whether 

it concluded there was credibility to any of these allegations. And 

I would suggest to you for your comment that while we sit here 

today with a different record before us, it’s largely based on years 

of a Department of Justice investigation that has muted facts over 

time. 

Mr. GERHARDT. It’s a fair point. Although I would also suggest 

that there’s nothing that precludes the Senate if it has an opportunity to do another investigation, to reach a different judgment. 

That’s the nature of the impeachment process. In fact, the appointment process and impeachment process are separate processes. 

And so the Senate may be fully entitled, fully empowered to do its 

own factfinding, do a separate factfinding, or act upon different 

facts revealed at a different time that have come to light since its 

last action. 

Mr. AMAR. And I was not aware that the Justice Department 

took a close look at the representations made during the confirmation process. Maybe they were. But when I just look at the pieces 

of paper in front of me, and I see a pretty direct question and a 

pretty direct misstatement in response, a lie, a fraud, a falsehood, 

it’s hard for me to imagine facts that would change my mind about 

that. 

Mr. GERHARDT. In fact, I might even take note that the vetting 

process with respect to judges includes not just the Justice Department looking at a nominee but also the FBI and of course later the 

Senate. So there are many opportunities for this information to 

have come to light. And again, the likelihood is that they didn’t, 

and it didn’t. That tells us something about the quality of the process. And so in some respects, I’m very concerned about the undermining of the integrity of the confirmation process. 

Mr. WESTLING. Mr. Chairman, I note my light is on. May I proceed. 

Mr. SCHIFF. Yes, of course. 

Mr. WESTLING. Thank you. A couple of more questions and, hopefully, we’ll be able to wind this up, at least from my perspective. 

The first is that there’s been some discussion by the panel about 

impeachment based on conduct occurring prior to one’s swearing in 

as a Federal officer, and there’s been testimony on that regard. I’m 

simply interested in knowing whether there has ever been a prior 

52 

impeachment based on events that took place prior to the person 

being a Federal officer. 

Mr. GERHARDT. No. I mean, there’s not been any successful impeachment; that is to say, moved through the House or the Senate. 

But again, I don’t know that that’s of any significance. I think 

that the fact is that, you know, you’ve got to take the evidence in 

the case that you’ve gotten. As I supposed in my written testimony, 

imagine somebody had committed a murder before they were ever 

nominated to a particular office. But if that fact had not been disclosed to the Senate, it wouldn’t preclude the House later from saying that’s egregious misconduct, completely incompatible with the 

office that you now hold. In fact, it’s a breach of the public trust 

for you to actually—for that information not, in a sense, to have 

disqualified you. 

Mr. AMAR. There are not very many impeachment precedents, 

but there is constitutional text. There is constitutional history. 

There is constitutional structure. There is common sense. 

Here’s what I wrote on this very question in 2005, based on an 

article, based on I think a presentation I made to the Federalist Society, actually, in 1998 or 1999: ‘‘In the case of an officer who did 

not take bribes but gave them, paying men to vote for him, the 

bribery would undermine the very legitimacy of the election that 

brought him to office.’’ 

So that’s pre-office-holding misconduct, straight in the middle of 

the impeachment clause—treason, bribery or other high crimes and 

misdemeanors—so if you commit bribery in order to get your position, of course that’s impeachable. And that’s before you’ve been 

commissioned as an officer. 

And that’s just pretty obvious whether there actually has been— 

now, there may have been some resignations or something when 

this came to light. But maybe, you know, part of it is, very few people in the past have had the audacity to try to sort of make, the 

chutzpah, to try to make this argument once it came to light that 

you procured your very office by false pretenses, and now you’re 

hanging on to the thing and taking taxpayer money. Have you no 

sense of shame? 

Mr. GERHARDT. I think there are a couple of things. One is that 

I think the modern process, the modern vetting process, both in 

terms of nominations and confirmations, has been much more thorough. And thus it becomes significant if it doesn’t stumble across 

something. 

But since Akhil has begun this precedent, I will follow it as well 

and just note something else that I had written over a decade ago 

that seems quite pertinent today. I wrote that there might be some 

difficult cases on the lines that you were talking about, possibly impeaching somebody for a prior criminal misconduct before they entered office. But ‘‘it’s easy to imagine instances in which impeachable offenses can be based on present misconduct consisting of 

fraudulent suppression or misrepresentation of prior misconduct. 

Particularly in cases in which an elected or confirmed official had 

lied or committed a serious act of wrongdoing to get into his 

present position. The misconduct that was committed prior to entering office clearly bears on the integrity of the way in which the 

53 

present officeholder entered office and the integrity of that official 

to remain in office.’’ 

Mr. GEYH. There is a litany of behaviors that people could engage in that everyone would agree are impeachable that haven’t occurred yet. I’m not sure, with the possible exception of West Humphreys, I don’t even think—has anyone been convicted of treason 

per se? And everyone would agree it’s an impeachable offense. It 

hasn’t happened. Does that mean it really has been written out of 

the books? No. 

Mr. GERHARDT. There is, as it turns out, a first time for everything. And that would have been true for the first time the President vetoed something. It would be true for the first time that a 

judge got impeached for bribery. That would have been the first 

time that that would have happened. And so on. 

So the fact that this might be the first time that we’re actually 

looking at prior misconduct doesn’t mean that we shouldn’t. It 

means we should be careful. That’s what we’re doing here today. 

But I think that there’s a nexus between that misconduct and the 

fitness of that person to continue to serve in office. 

Mr. WESTLING. And my final question is for you, Professor Geyh. 

If you could just explain briefly the interplay between the impeachment mechanism and the Judicial Discipline Act that typically is used to evaluate and discipline judges for certain kinds of 

behavior. Why is one used? Why is the other used? How do they 

relate to one another? 

Mr. GEYH. I think when Congress decided to go ahead with the 

Judicial Conduct and Disability Act, it was because of the perception that there is a lot of misconduct that’s going forward that really doesn’t rise to the level of impeachable conduct. And so when 

you engage in conduct prejudicial to the expeditious administration 

of justice, the statute says that you can go through this process 

going forward at the Judicial Council level culminating in sanctions 

ranging from mild slap on the wrist to public censure, and at the 

most extreme level, what has happened here going on up to the Judicial Conference with a recommendation that Congress investigate 

for impeachment purposes. 

To my way of thinking, the same conduct can work its way 

through the process separately or independently. In other words, 

it’s quite possible, if the Judicial Conference chooses not to look at 

something, that this body may choose to do it independently, and 

that would be perfectly acceptable. 

The standards are different. I mean, there it’s the expeditious administration of justice that’s really the focus, and here it’s high 

crimes and misdemeanors. But certainly high crimes and misdemeanors interfere with the expeditious administration of justice 

and you have that kind of overlap. 

Mr. WESTLING. Thank you, Mr. Chairman. 

I have no further questions. 

Mr. SCHIFF. Thank you, counsel. 

Just one other question, and we’re going to try to finish before 

we head off to vote. 

A follow-up to one of Mr. Westling’s questions. I assume that 

your view, the views you’ve expressed would be the same if the fact 

pattern were such that during the background process for the SenVerDate Aug 31 2005 16:16 Jan 26, 2010 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6601 H:\WORK\JUDIMP\121509\54074.000 HJUD1 PsN: 54074
54 

ate confirmation, the FBI was made aware of certain rumors about 

Judge Porteous that they investigated and were unable to corroborate because witnesses were not honest with them. 

We heard testimony from a bail bondsman who said that he basically didn’t tell the FBI about any of the conduct because he knew 

it would adversely affect his confirmation. And he was immediately 

asked by the judge basically, what did they ask you? What did you 

say? 

If the FBI investigator wasn’t able to corroborate, but nonetheless, during the course of subsequent investigation, the allegations 

were demonstrated to be true or the judge admitted the allegations, 

I assume that would not affect your judgment; that wouldn’t be sufficient notification to the Senate to change your view of things. 

Mr. AMAR. In my view, it would make the situation even worse. 

And I think Professor Geyh may have mentioned this a little bit 

in his testimony. If there were evidence that Judge Porteous communicated with other witnesses—people who were being questioned by the government officials and then tried to find out what 

they had actually said, and that very much bears on his credibility—whether it rises to a level of conspiracy, bears on his credibility about what then he is saying and not saying. That again suggests sort of a level of purposeful deception here that, if anything, 

makes the thing worse in my mind, more corrupt. 

Mr. GERHARDT. I had tried to suggest something along those 

lines in answering Mr. Westling’s question. I think the fact that 

there might have been an investigation might be of no real significance. A prior investigation isn’t a free pass because the facts can 

change. You know, new facts can come to light. 

And if we have a prior investigation that’s been done but basically either was not able to substantiate something or find something because it was being suppressed, that shouldn’t preclude 

Congress from reopening the investigation in light of other evidence. That’s I think precisely what this process is all about. 

Mr. GEYH. I’m in the same place on this one. It seems to me that 

if a nominee lies under oath for the reasons that Professor Amar 

spoke of, that is a serious matter. 

But I get a little uneasy about the notion of going into the business of estoppel, you know estoppel arguments that somehow the 

House of Representatives is estopped from doing something because the Senate did it differently or badly. It seems to me that 

this body has an independent duty to investigate. I mean, certainly 

it’s going to be perhaps affected by whether the other body thought 

long and hard about a matter and came to a conclusion. But to me, 

the more fundamental point is, did he lie under oath? If so, that 

gives rise to a lot of concern. 

Mr. GERHARDT. I seem to recall, I didn’t study this for today, but 

I seem to recall, in the late 1980’s, the Senate expressly rejected 

the opportunity for estoppel in at least one of those 1980’s impeachment trials. 

Mr. AMAR. And with respect, that’s why—I wasn’t just trying to 

be flip in the last words of my testimony. There are about six different issues about as to which this little lawyer’s joke keeps coming into my head; you know, that’s great, Your Honor, does this 

mean I can keep the money? Because what’s being, you know, put 

55 

forth here is keeping the ill-gotten gain just because you’ve managed to get lucky enough to escape Justice Department prosecution 

or have escaped the scrutiny of the Senate the first time around. 

It’s audacious. 

Mr. SCHIFF. Do any of my colleagues have any further questions? 

Seeing none, in closing, I would like to reiterate that the Task 

Force invited Judge Porteous to testify before us, but he has declined. 

In addition, the Task Force afforded the opportunity for Judge 

Porteous and his counsel to request that the Task Force hear from 

a witness or witnesses that they would wish to call. 

Judge Porteous’scounsel has informed the Task Force that they 

would not avail themselves of this opportunity. 

The written statements of the witnesses today were made part 

of the record. 

And I want to thank the witnesses for their testimony today. I 

really appreciate your time, Professors, and the opportunity to 

question professors. So it’s just been a nice turn, but it’s fair play. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any additional materials. This hearing 

of the Impeachment Task Force is adjourned. 

[Whereupon, at 12:17 p.m., the Task Force was adjourned.] 

Æ