ArtII.S4.2.3.7 Impeachable Offenses: Contemporary Judicial Impeachments

Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Congress has impeached federal judges with comparatively greater frequency in recent decades, and some of these impeachments appear to augur important consequences for the practice in the future. In particular, within three years in the 1980s the House voted to impeach three federal judges, each occurring after a criminal trial of the judge. One impeached federal judge was not barred from future office and subsequently was elected to serve in the House of Representatives, the body that earlier had impeached him. 1 Another judge challenged the adequacy of his impeachment trial in a case that ultimately reached the Supreme Court, which ruled that the case was non-justiciable. 2

The House of Representatives impeached federal district judge Harry E. Claiborne in 1986, following his criminal conviction and subsequent imprisonment for providing false statements on his tax returns. 3 Despite his incarceration, Judge Claiborne did not resign his seat and continued to collect his judicial salary. 4 The House unanimously voted in favor of four articles of impeachment against him. 5 The first two articles against Judge Claiborne simply laid out the underlying behavior that had given rise to his criminal prosecution. 6 The third article rest[ed] entirely on the conviction itself and stood for the principle that by conviction alone he is guilty of 'high crimes' in office.7 The fourth alleged that Judge Claiborne's actions brought the judiciary into disrepute, thereby undermining public confidence in the integrity and impartiality of the administration of justice which amounted to a misdemeanor.8

The Senate impeachment trial of Judge Claiborne was the first in which that body used a committee to take evidence. Rather than conducting a full trial with the entire Senate, the committee took testimony, received evidence, and voted on pretrial motions regarding evidence and discovery. 9 The committee then reported a transcript of the proceedings to the full Senate, without recommending whether impeachment was warranted. 10 The Senate voted to convict Judge Claiborne on the first, second, and fourth articles. 11

In 1988, the House impeached a federal district judge who had been indicted for a criminal offense but acquitted. Judge Alcee L. Hastings was acquitted in a criminal trial where he was accused of conspiracy and obstruction of justice for soliciting a bribe in return for reducing the sentences of two convicted felons. 12 After his acquittal, a judicial committee investigated the case and concluded that Judge Hasting's behavior might merit impeachment. The Judicial Conference (a national entity composed of federal judges that reviews investigations of judges and is authorized to refer recommendations to Congress) eventually referred the matter to the House of Representatives, noting that impeachment might be warranted. 13 The House of Representatives approved 17 impeachment articles against Judge Hastings, including for perjury, bribery, and conspiracy. 14

Judge Hastings objected to the impeachment proceedings as double jeopardy because he had already been acquitted in a previous criminal proceeding. 15 The Senate, however, rejected his motion to dismiss the articles against him. 16 The Senate again used a trial committee to receive evidence. That body voted to convict and remove Judge Hastings on eight articles, but did not vote to disqualify him from holding future office. 17 Judge Hastings was later elected to the House of Representatives. 18

Before the trial of Judge Hastings even began in the Senate, the House impeached Judge Walter L. Nixon. Judge Nixon was convicted in a criminal trial of perjury to a grand jury and imprisoned. 19 Following an investigation by the House Judiciary Committee's Subcommittee on Civil and Constitutional Rights, the Judiciary Committee reported a resolution to the full House recommending impeachment on three articles. 20 The full House approved three articles of impeachment, the first two involving lying to a grand jury and the last for undermining the integrity of and bringing disrepute on the federal judicial system. 21 The Senate convicted Judge Nixon on the first two articles but acquitted him on the third. 22

Judge Nixon challenged the Senate's use of a committee to receive evidence and conduct hearings. He brought a suit in federal court arguing that the use of a committee, rather than the full Senate, to take evidence violated the Constitution's provision that the Senate try all impeachments. 23 The Supreme Court ultimately rejected his challenge in Nixon v. United States, ruling that the issue was a non-justiciable political question because the Constitution grants the power to try impeachments in the Senate and nowhere else; and the word try lacks sufficient precision to afford any judicially manageable standard of review of the Senate's actions.24 As a result of this decision, impeachment proceedings appear largely immune from judicial review. 25

Two judges have been impeached in the twenty-first century. As with the three impeachments of judges in the 1980s, the first followed a criminal indictment. District Judge Samuel B. Kent pled guilty to obstruction of justice for lying to a judicial investigation into alleged sexual misconduct and was sentenced to 33 months in prison. 26 The House impeached Judge Kent for sexually assaulting two court employees, obstructing the judicial investigation of his behavior, and making false and misleading statements to agents of the Federal Bureau of Investigation about the activity. 27 Judge Kent resigned his office before a Senate trial. 28 The Senate declined to conduct a trial following his resignation.

Although the four previous impeachments of federal judges followed criminal proceedings, the most recent impeachment did not. 29 In 2010, Judge G. Thomas Porteous Jr. was impeached for participating in a corrupt financial relationship with attorneys in a case before him, and engaging in a corrupt relationship with bail bondsmen whereby he received things of value in return for helping the bondsman develop corrupt relationships with state court judges. 30 Judge Porteous was the first individual impeached by the House 31 and convicted by the Senate based in part upon conduct occurring before he began his tenure in federal office. The first and second articles of impeachment each alleged misconduct by Judge Porteous during both his state and federal judgeships. 32 The fourth alleged that alleged that Judge Porteous made false statements to the Senate and FBI in connection with his nomination and confirmation to the U.S. District Court for the Eastern District of Louisiana. 33

Judge Porteous's filings in answer to the articles of impeachment argued that conduct occurring before he was appointed to the federal bench cannot constitute impeachable behavior. 34 The House Managers' replication, or reply to this argument, argued that Porteous's contention had no basis in the Constitution. 35 On December 8, 2010, he was convicted on all four articles, removed from office, and disqualified from holding future federal offices. 36 The first article, which included conduct occurring before he was a federal judge, was affirmed 96-0. 37 The second article, approved 90-6, alleged that he lied to the Senate in his confirmation hearing to be a federal judge. 38 A number of Senators explicitly adopted the reasoning supplied by expert witness testimony before the House that the crucial issue regarding the appropriateness of impeachment was not the timing of the misconduct, but whether Judge Porteous committed such misconduct and whether such misconduct demonstrates the lack of integrity and judgment that are required in order for him to continue to function in office. 39

Senator Claire McCaskill explained in her statement entered in the Congressional Record that Judge Porteous's argument for an absolute, categorical rule that would preclude impeachment and removal for any pre-federal conduct should be rejected. 40 That should not be the rule, she noted, any more than allowing impeachment for any pre-federal conduct that is entirely unrelated to the federal office.41 Senator Patrick Leahy agreed, noting that he reject[ed] any notion of impeachment immunity [for pre-federal behavior] if misconduct was hidden, or otherwise went undiscovered during the confirmation process, and it is relevant to a judge's ability to serve as an impartial arbiter.42

Footnotes

  1.  Jump to essay-1See H. Res. 499 (Aug. 9, 1988); H.R. Rep. No. 100-810, at 8 (1988).
  2.  Jump to essay-2Nixon v. United States, 506 U.S. 224, 237–38 (1993).
  3.  Jump to essay-3United States v. Claiborne, 727 F.2d 842 (9th Cir. 1984).
  4.  Jump to essay-4Emily F.V. Tassel & Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present 168 (1999).
  5.  Jump to essay-5132 Cong. Rec. H4710–22 (daily ed. July 22, 1986).
  6.  Jump to essay-6H. Comm. on the Judiciary, Impeachment of Judge Harry E. Claiborne, Report to Accompany H. Res. 461, 99th Cong., 2d Sess., H.R. Rep. No. 99-688, at 1–2 (1986).
  7.  Jump to essay-7Id. at 12.
  8.  Jump to essay-8Id. at 23.
  9.  Jump to essay-9Staff from the S. Impeachment Trial Comm., On the Impeachment of Harry E. Claiborne, 99th Cong., 2d Sess., S. Rep. No. 99-511, at 1–4 (1986).
  10.  Jump to essay-10Id. at 1.
  11.  Jump to essay-11132 Cong. Rec. 29,870–72 (1986).
  12.  Jump to essay-12H.R. Rep. No. 100-810, at 8 (1988).
  13.  Jump to essay-13Id. The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 authorizes the Judicial Conference to forward a certification to the House that impeachment of a federal judge may be warranted. 28 U.S.C. § 355.
  14.  Jump to essay-14H. Res. 499 (Aug. 9, 1988); H.R. Rep. No. 100-810, at 8 (1988).
  15.  Jump to essay-15Impeachment of Judge Alcee L. Hastings, Motions of Judge Alee L. Hastings to Dismiss Articles I-XV and XVII of the Articles of Impeachment Against Him and Supporting and Opposing Memoranda S. Doc. 101–4, at 48–65 (1989).
  16.  Jump to essay-16The Impeachment Trial of Alcee Hastings, U.S. Senate, https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm (last visited Jan. 24, 2018).
  17.  Jump to essay-17135 Cong. Rec. S13,783–87 (daily ed. Oct. 20, 1989).
  18.  Jump to essay-18Tassel & Finkelman, supra note 4, at 173.
  19.  Jump to essay-19H. Comm. on the Judiciary, Impeachment of Walter L. Nixon, Jr., Report to Accompany H. Res. 87, 101st Cong., 1st Sess., H.R. Rep. No. 101-36, at 12–13 (1989).
  20.  Jump to essay-20Id. at 14–16.
  21.  Jump to essay-21135 Cong. Rec. H1802–11 (daily ed. May 10, 1989).
  22.  Jump to essay-22135 Cong. Rec. S14,633–39 (daily ed. Nov. 3, 1989).
  23.  Jump to essay-23Nixon, 506 U.S. at 226.
  24.  Jump to essay-24Id. at 229.
  25.  Jump to essay-25The U.S. District Court for the District of Columbia initially threw out Judge Hastings' Senate impeachment conviction, because the Senate had tried his impeachment before a committee rather than the full Senate. Hastings v. United States, 802 F. Supp. 490, 505 (D.D.C. 1992). The decision was vacated on appeal and remanded for reconsideration in light of Nixon v. United States. Hastings v. United States, 988 F.2d 1280 (D.C. Cir. 1993). The district court then dismissed the suit because it presented a nonjusticiable political question. Hastings v. United States, 837 F. Supp. 3, 5–6 (D.D.C. 1993).
  26.  Jump to essay-26H. Comm. on the Judiciary, Impeachment of Judge Samuel B. Kent, Report to Accompany H. Res. 520, 11th Cong., 1st Sess. H.R. Rep. No. 111-159, at 6–13 (2009) [hereinafter Kent Impeachment].
  27.  Jump to essay-27155 Cong. Rec. H7053–67 (daily ed. June 19, 2009); Kent Impeachment, supra note 26, at 2–3.
  28.  Jump to essay-28Charles W. Johnson, John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House 608–13 (2017).
  29.  Jump to essay-29The FBI investigated judicial corruption in Louisiana's 24th Judicial District, the court on which Judge Porteous served before appointed to the District Court for the Eastern District of Louisiana. The Department of Justice declined to seek criminal charges but did submit a complaint of judicial misconduct to the Fifth Circuit Court of Appeals. Report of the Impeachment Trial Comm. on the Articles Against Judge G. Thomas Porteous, Jr., 111th Cong., 2d Sess., S. Rep. No. 111-347, at 5 (2010) [hereinafter Porteous Impeachment].
  30.  Jump to essay-30Porteous Impeachment, supra note 29, at 1–2.
  31.  Jump to essay-31156 Cong. Rec. 3155–57 (2010).
  32.  Jump to essay-32Porteous Impeachment, supra note 29, at 1–2.
  33.  Jump to essay-33Id. at 2.
  34.  Jump to essay-34156 Cong. Rec. S2183–84 (daily ed. Apr. 12, 2010). See also Judge G. Thomas Porteous, Jr.'s Post-Trial Brief (Oct. 29, 2010), in Proceedings of the United States Senate in the Impeachment Trial of G. Thomas Porteous, Jr., A Judge of the United States District Court for the Eastern District of Louisiana, 111th Cong., 2d Sess., S. Doc. No. 111-20, at 61–76 (2010) [hereinafter Porteous Proceedings].
  35.  Jump to essay-35156 Cong. Rec. S2358 (daily ed. Apr. 15, 2010). See also Post-Trial Memorandum of the House of Representatives (Oct. 29, 2010), in Porteous Proceedings, supra note 34, at 304–15.
  36.  Jump to essay-36156 Cong. Rec. 19,134–36 (2010).
  37.  Jump to essay-37156 Cong. Rec. 8609 (2010).
  38.  Jump to essay-38156 Cong. Rec. 8610 (2010).
  39.  Jump to essay-39To Consider Possible Impeachment of United States District Judge G. Thomas Porteous, Jr. (Part IV), Hearing Before the Task Force on Judicial Impeachment of the H. Comm. on the Judiciary, 111th Cong., 1st Sess., H. Hrg. 111–46, at 30 (Dec. 15, 2009) (Statement of Michael J. Gerhardt, Professor of Law, University of North Carolina, Chapel Hill School of Law); see, e.g., 156 Cong. Rec. S10,285 (daily ed. Dec. 15, 2010) (statement of Senator Tom Udall); id. at S10,284 (statement of Senator Patrick Leahy).
  40.  Jump to essay-40156 Cong. Rec. S10,282 (daily ed. Dec 15, 2010).
  41.  Jump to essay-41Id.
  42.  Jump to essay-42156 Cong. Rec. S10, 284. See also id. at S10,286 (statement of Senator Jeanne Shaheen) (I was totally unpersuaded by the defense team's argument that Judge Porteous's 'pre-Federal' conduct should be outside the scope of our deliberation—I do not believe the act of being confirmed to a Federal judgeship by the Senate erases or excuses an individual's conduct up to the point of confirmation.); id. at S10,405 (statement of Senator Jeff Sessions) (The Constitution does not require that all conduct be committed post Federal appointment nor does it stipulate at all when the conduct must occur.).