Judge Porteous and Impeachment for Conduct Prior to Federal Appointment

On December 8, the Senate voted to convict and remove from office U.S. District Judge Thomas Porteous, who became only the eighth official (all of whom have been federal judges) in history to be impeached and convicted.  Porteous’s offenses stemmed from a corrupt relationship he developed while serving as a state judge before his appointment to the federal bench.  His conviction therefore constitutes a significant precedent with respect to an open question (previously discussed here) regarding the applicability of impeachment proceedings to conduct that pre-dates appointment.

Porteous’s lawyers argued that the charges against him should be rejected because they were largely based on “pre-federal conduct,” ie, activities which took place  before the judge was appointed to the federal bench.  They contended that “[i]n the history of this Republic, the United States Senate has never before removed a federal official, through the impeachment process, for ‘pre-federal’ conduct.”   The House Impeachment Managers, on the other hand, argued that “conduct which occurs prior to assuming federal office, particularly when the officeholder concealed such conduct during the confirmation process, is an appropriate basis for impeachment and removal from office.”  

There were four articles of impeachment against Porteous.  Articles I and II involved both Porteous’s conduct as a state judge and his conduct after his nomination and appointment to the federal bench.  However, it seems fair to note that Article II, in particular, appears to be predominantly based on pre-federal conduct.  Article IV, moreover, is entirely based on Porteous’s deception and/or failure to disclose information during the confirmation process.

The final vote on conviction was 96-0 on Article I, 69-27 on Article II, and 90-6 on Article IV (Article III is not relevant for present purposes).  Because Senators are not required to give reasons for their votes, one must be cautious in drawing conclusions about the legal precedent established by the conviction.  It seems clear, however, that the Porteous conviction stands, at a minimum, for the proposition that misconduct during the confirmation process, such as lying to or deceiving the Senate, may constitute a “high crime or misdemeanor.”  Moreover, it appears likely that those Senators who voted to convict on Article II believed that Porteous’s pre-federal conduct itself constituted, at least under the circumstances of that case, a high crime or misdemeanor.

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