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.

Senate Panel Holds the Privilege Against Self-Incrimination Does Not Apply to an Impeachment Trial

Yesterday the Senate panel charged with conducting the impeachment trial of federal district judge G. Thomas Porteous issued an order disposing of certain pretrial motions.   Of particular note was the panel’s decision to reject Porteous’ motion to suppress his immunized testimony given before a special Fifth Circuit committee which investigates misconduct by federal judges.

The question presented, the Senate panel notes, is one of first impression, namely whether an impeachment trial is a “criminal case” within the meaning of the Fifth Amendment’s prohibition on compelled self-incrimination.  It is a difficult question because the Constitution is notably ambiguous on this point.

On the one hand, a reader of the original Constitution would likely conclude that impeachment is a type, albeit a unique type, of criminal proceeding.  Impeachable offenses are defined in terms of “treason, bribery or other high crimes and misdemeanors.”   Impeachment is implicitly treated as a criminal proceeding in article II, where the President is granted power to “grant reprieves and pardons for offences against the United States, except in cases of impeachment,” and in article III, where it is stated that the “trial of all crimes, except in cases of impeachment, shall be by jury.”  These exceptions would be unnecessary if impeachment were not, at least in some sense, a criminal proceeding.

On the other hand, it is difficult to square this conclusion with the language of the Bill of Rights.  The Sixth Amendment guarantees the right to a jury trial in “all criminal prosecutions,” which, if applicable to impeachment, would nullify the impeachment process explicitly set forth in the original Constitution.  Similarly, though somewhat less clearly, the double jeopardy clause of the Fifth Amendment has been construed to apply to all criminal offenses, and would therefore be applicable to impeachment if it were considered a criminal proceeding.

In his book on impeachment, Raoul Berger surveyed these competing provisions and concluded that “the Framers might well have overlooked some lack of harmony in detail.”  In short, he believes that the Framers utilized the criminal terminology of the English impeachment process, but, by limiting the consequences of impeachment to the nonpenal ones of removal and disqualification, created a new type of proceeding that is essentially non-criminal in nature.  Michael Gerhardt and Charles Black argue that the impeachment process should be viewed as a hybrid or quasi-criminal type of proceeding.

The conclusions of these impeachment scholars inform the discussion, but do not necessarily answer the specific question presented to the Senate impeachment committee:  should impeachment be considered a criminal proceeding for purposes of the self-incrimination clause of the Fifth Amendment?  The committee seems to assume that Senate precedent rejecting the application of double jeopardy to an impeachment proceeding necessarily means that the self-incrimination clause is likewise inapplicable.  This does not necessarily follow.

Nonetheless, I tend to agree that the committee reached the correct result here.  Berger suggests the analogy between impeachment, designed to remove an unfit officer, and deportation, designed to remove an alien who is not entitled to remain the country.  Although the latter may entail painful consequences, it is not a criminal proceeding to which the self-incrimination privilege applies.  Similarly, to the extent that the privilege is designed to protect against coerced confessions or wrongful convictions in ordinary criminal cases, it would seem to have little relevance to an impeachment proceeding.  The Senate is entitled to consider Porteous’ immunized testimony.

More on Bybee Impeachment

           The National Law Journal has an interview today with Professor Michael Gerhardt, author of The Federal Impeachment Process, regarding the possibility of an impeachment of Judge Jay Bybee.  Gerhardt’s responses are appropriately tentative, given the uncharted territory involved: 

NLJ: May a judge be impeached for conduct committed before becoming a judge?

MG: You have to judge every case on its own facts. The question we have to look at is to what extent this might fit into our understanding of the impeachment process. With President Clinton, one part involved his alleged misconduct related to something he had done before he came into the presidency and another charge was lying under oath about conduct while he was president. The questions can get pretty complicated.

I think it’s actually a significant question in constitutional law — the extent to which someone may be held accountable for something they did before they got into the office they now hold. John Quincy Adams declared when he was in the House that he thought he could still be held accountable for things he had done as president.

*          *          *

I think that language in the Constitution could be read credibly here to support an inquiry into Judge Byee’s conduct or judgment while he was in the Justice Department. There may be enough support in original meaning or historical practice to suggest the House has legitimate authority to inquire at least into whether it has authority to impeach somebody under circumstances like this.

Could Congress Impeach Judge Bybee?

           Sunday’s New York Times editorializes that Congress should impeach Judge Jay Bybee, who now sits on the U.S. Court of Appeals for the Ninth Circuit, for actions he took in his former position as head of the Office of Legal Counsel.  Specifically, the Times argues that OLC memos authored by Bybee and others regarding prisoner interrogations were “not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.” Accordingly, it concludes that Bybee isunfit for a job that requires legal judgment and a respect for the Constitution.” 

            It is not my intention here to rehash the arguments regarding the quality of OLC’s work.  Assuming that the OLC memos were as poorly reasoned and result-oriented as critics maintain, it is by no means obvious that these memos would constitute impeachable offenses.  One might reasonably conclude that the offenses charged by the Times are not “high crimes and misdemeanors” within the meaning of Article II, section 4 of the Constitution, but merely “maladministration” that is beyond the scope of that provision.   

            For present purposes, however, I will assume that Bybee’s role in authoring or approving various OLC memos falls within the outer limit of what Congress could reasonably find to be an impeachable offense.  This assumption leads us to questions of first impression. 

            Bybee did not commit the alleged misconduct while a federal judge.  There is no allegation that he has in any way misused his judicial power or acted improperly in his judicial capacity.  It is true that Bybee is charged with misusing his official position, but it was an entirely different official position, in a different branch of government, than the one he has now.  There is no precedent for impeaching an official based on misconduct committed in another position.


            In fact, as Professor Michael Gerhardt has noted: “As a general matter, it is noteworthy that no one has ever been impeached, much less removed from office, for something he or she did prior to assuming an impeachable position in the federal government.”  Gerhardt, The Federal Impeachment Process 108 (1996).  Gerhardt nonetheless argues that there are circumstances in which impeachment based on pre-appointment misconduct is appropriate.  He notes that “[p]articularly in cases in which an elected or confirmed official has lied or committed a serious act of wrongdoing to get into their present position, the misconduct that was committed prior to entering office clearly bears on the integrity of the way in which the present officeholder entered office and the integrity of that official to remain in office.”  Id. 108-09.   

            If there is evidence that Bybee lied during his judicial confirmation hearings regarding the OLC interrogation memos, one might have a plausible case for impeaching him as a federal judge.  (Indeed, such deception would make a stronger case for impeachment than the underlying misconduct).  But in the absence of such evidence, this would seem a weak case for impeachment based on pre-appointment misconduct.  The underlying misconduct is at best a borderline impeachable offense.  Moreover, the job of a federal judge is quite different than that of the OLC.  Some argue that OLC should perform a quasi-judicial function within the executive branch, but this is hardly a universal understanding of its role.  Even if one believes that Bybee misconstrued the proper function of OLC, this hardly proves that he is unwilling or unable to faithfully perform his judicial role.  

            But wait.  It is true that Bybee didn’t commit the (allegedly) impeachable offense as a federal judge, but he was in a Senate-confirmed position at the time.  And the head of OLC is, like other civil officers of the United States, subject to impeachment.  Perhaps the question shouldn’t be whether Bybee can be impeached as a judge, but whether he can be impeached as the former Assistant Attorney General for the Office of Legal Counsel.  Can he? 

             Although it is often assumed that impeachment will not lie once an official leaves his or her office, this is in fact far from settled.  In fact, the House has previously determined that “resignation of the office does not prevent impeachment for crime or misdemeanor therein.”   House Manual § 174 (108th Cong.) (Parliamentarian’s Note).  Although the Senate has not convicted on the two occasions where the House impeached a former official (Blount and Belknap), these precedents do not stand for the proposition that the Congress lacks jurisdiction in such cases.  As Gerhardt observes, “there is a surprising consensus among commentators that resignation does not necessarily preclude impeachment and disqualification.”  Gerhardt, supra, at 79. 

            In short, it appears likely that Congress does have the power to impeach Bybee for actions he took in his role as the head of OLC.  Although it is seldom worth Congress’s while to conduct an impeachment trial for a former official, this is a matter of prudence, not constitutional power. 

            Suppose, however, Bybee were to be impeached and convicted for these matters.  Would this result in his removal as a federal judge?   This is another matter of first impression.  One could argue that the Constitution requires that any official convicted of a high crime or misdemeanor be removed from office.   Alternatively, one could argue that removal is required only if the Senate imposes the punishment of disqualification to hold and enjoy any federal office.  Conceivably, one could argue that Bybee could not be removed from his judgeship at all, since the impeachment would relate solely to his prior office and his disqualification would relate solely to future offices. 

            It seems unlikely that Congress will take up the Times’s invitation to impeach Judge Bybee.  But should it do so, plenty of thorny constitutional issues await.