Porteous Impeachment
Floor Speech
BREAK IN TRANSCRIPT
Mr. WHITEHOUSE. Mr. President, while serving on the impeachment trial committee, I heard evidence that convinced me that Judge Thomas Porteous had a long history of corrupt behavior, deceived this body during the pendency of his nomination to serve on the federal bench, failed to meet the ethical standards we expect of Federal judges, and should be removed from the bench. The Senate was right to convict him and to bar him from future Federal office.
In light of the precedents this body inevitably sets in deciding to remove a Federal judge from office, the Senate must be thoughtful about the implications of our decisions on future impeachments. In this case, I believe that is particularly true with respect to the issue of aggregation of the Articles of Impeachment. Although the outcome of this trial may not turn on that question, it is fairly raised here, and calls to mind the prospect that in the future, House impeachment managers might be tempted to package a disparate bill of complaints against a President or Supreme Court Justice into a single article--hoping that added together, the charges will attract the votes of enough Senators to convict. I believe we should mark in this proceeding our view that the House of Representatives must be scrupulous about properly crafting Articles of Impeachment in all future cases.
Senators who have served as prosecutors will know that, under the ``duplicity'' doctrine, a prosecutor cannot join together two or more distinct offenses into a single count of a criminal indictment. Thus, a single count cannot charge a criminal with kidnapping and murder. Instead, each charge must be placed in a different count so that the jury can vote separately on each count of the indictment.
This prohibition against aggregated or duplicative counts in an indictment protects a defendant's constitutional due process rights, including rights to fair notice and to a unanimous jury verdict. The First Circuit Court of Appeals has explained that this prohibition ``arises primarily out of a concern that the jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of any particular offense.'' The Third Circuit explained, in United States v. Starks: ``there is no way of knowing with a general verdict on two separate offenses joined in a single count whether the jury was unanimous with respect to either.''
An impeachment trial is not a criminal proceeding. The charges against Judge Porteous are described in Articles of Impeachment, not counts in an indictment. The constitutional rules of criminal procedure do not bind this body sitting in an impeachment trial. Rather, the Senate works with the constitutional standard of ``Treason, Bribery, or other high Crimes and Misdemeanors,'' the latter language of which does not define the specific elements of a removable offense. Because of numerous important differences between an article I Senate impeachment trial and an article III criminal trial, I think Articles of Impeachment need not be divided into distinctive counts to the full extent that a criminal indictment must.
Nonetheless, there are principles of fairness at the heart of the doctrine of duplicity that should be honored. Article I, section 3 of the Constitution requires a two-thirds vote of the present Members of this body to convict a defendant during an impeachment trial. This suggests that there should be in the Senate a minimum level of agreement on the offense--67 votes, to be exact of which the defendant is convicted.
It would strike me as suspect, for example, to convict a defendant of a single article that alleged that the defendant had committed treason and, 10 years later, had committed bribery. In that case, 30 Senators might believe he was guilty of bribery, and 40 Senators might believe he was guilty of treason. That would add up to 70 votes to convict even though 70 Senators believed he had not committed bribery, and 60 believed he had not committed treason. Surely that was not the Founders' intent.
Under another scenario, however, an article of impeachment might allege that a defendant, on one tax return, failed to disclose income from an investment, failed to disclose another investment entirely, and took a false deduction on yet a third investment, and then lied to IRS investigators during the following audit. I believe the Senate should be able to convict such a defendant for a single high crime or misdemeanor of willful tax evasion.
I understand the school of thought that the only procedural protection an impeachment defendant enjoys is the supermajority requirement of 67 votes, and that it acts as a catch-all: Whatever procedural concerns there might be are swept away if a two-thirds supermajority agrees. Under this view, the duplicity concern, or any other, simply doesn't matter. Sixty-seven votes solves that--and every other procedural problem. I am not comfortable with that view.
Instead, it is clear to me that there should come a point where an Article of Impeachment must be rejected for inappropriate aggregation of multiple offenses. That line falls in a different place in the impeachment context than it does in the criminal justice context, but exactly where it falls and how to define it is no easy question.
Each Senator must arrive at his own standard for what conduct may be aggregated within a single article. However, as a general rule, I would suggest that the distinction between an unacceptably aggregated Article of Impeachment and an imperfectly drafted, yet ultimately acceptable, article turns on whether, at bottom, the article is alleging a single core offense. And I believe the appropriate remedy when a Senator concludes that an article is improperly aggregated is for the Senator to vote ``not guilty'' on that article.
I voted against the defense's motion to dismiss the articles on the basis that they improperly aggregated multiple factual charges that belong in separate articles, and its incorporated request that the Senate carve up the Articles of Impeachment brought by the House into small pieces for the purposes of voting. I don't think that is our role. The House chose to draft the articles as it did, and the Senate--in the role of adjudicator--should not be in the business of rewriting the prosecutor's charging sheet. The House was entitled to an up-or-down vote on each article, not on only portions of each article. It sets a bad precedent to put the Senate in the position of drafting or altering the charging document on which it must vote.
In contrast, I voted against the second Article of Impeachment. It alleges multiple separate and distinct offenses, united by a common thread: the judge's ``corrupt relationship'' with the Marcottes, which spanned over 20 years. The aggregation of multiple distinct offenses within the article, tied by only a ``relationship,'' creates significant uncertainty about what the Senate is voting on. Some Senators might find Judge Porteous guilty on allegations of corrupt bond-setting. Others might believe that the Judge did not set bonds improperly, but acted corruptly in expunging the sentences of employees of the Marcottes. Still other Senators might believe that this pre-Federal conduct was not proven, but that the Judge should be convicted based on a series of lunches he participated in as a federal judge, or setting the Marcottes up with a successor judge. Put simply, this body could conceivably find Judge Porteous guilty of article II without agreeing which of multiple separate offenses linked by a long-term relationship was the ground for the conviction. The aggregation of charges in this article falls too close to the line for me, and so I voted ``not guilty'' on article II.
The remaining articles raised no comparable concerns, so I have voted to convict on each.
The first article of impeachment alleges that Judge Porteous improperly denied the recusal motion in the Lifemark case; in the course of doing so, failed to disclose his relationships with attorneys practicing before him; failed to disclose that he had improperly solicited and accepted thousands of dollars from those attorneys while the case was under advisement; and ultimately resolved the case in a manner suggesting that his decision was affected by his financial and personal relationship with the attorneys. Fundamentally, these allegations can be considered together to constitute a single impeachable offense of corruptly handling a single case; indeed, at its heart, a single motion to recuse. I believe that the House proved these allegations, and so voted to find Judge Porteous guilty on this article.
Article III makes several allegations related to Judge Porteous's bankruptcy. But these can be grouped together under the single rubric of bankruptcy fraud related to a single filing: the false name, failure to disclose assets, and assumption of unlawful debt were all part of a single scheme to defraud the creditors in his own bankruptcy proceeding. I am comfortable that the House proved these claims, and so voted to convict Judge Porteous on article III.
Similarly, although article IV alleges that the Judge failed to disclose various types of conduct at various stages of the confirmation process, this conduct is fairly characterized as establishing a single high crime or misdemeanor of knowingly making material false statements in order to secure Senate confirmation. All of these allegations relate to a single confirmation, and the preparation of a single confirmation package for Senate review. Again, I believe that evidence supports these allegations and that Judge Porteous should be convicted of article IV.
Having voted to convict on these three Articles of Impeachment, I voted to bar Judge Porteous from future federal office.
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