[House Hearing, 111 Congress] [From the U.S. Government Publishing Office] 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 ---------- U.S. GOVERNMENT PRINTING OFFICE 54-074 PDF WASHINGTON : 2010 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY JOHN CONYERS, Jr., Michigan, Chairman HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr., JERROLD NADLER, New York Wisconsin ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina ELTON GALLEGLY, California ZOE LOFGREN, California BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California MAXINE WATERS, California DARRELL E. ISSA, California WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia ROBERT WEXLER, Florida STEVE KING, Iowa STEVE COHEN, Tennessee TRENT FRANKS, Arizona HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas Georgia JIM JORDAN, Ohio PEDRO PIERLUISI, Puerto Rico TED POE, Texas MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah JUDY CHU, California TOM ROONEY, Florida LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi TAMMY BALDWIN, Wisconsin CHARLES A. GONZALEZ, Texas ANTHONY D. WEINER, New York ADAM B. SCHIFF, California LINDA T. SANCHEZ, California DEBBIE WASSERMAN SCHULTZ, Florida DANIEL MAFFEI, New York 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 BOB GOODLATTE, Virginia WILLIAM D. DELAHUNT, Massachusetts F. JAMES SENSENBRENNER, Jr., STEVE COHEN, Tennessee Wisconsin HENRY C. ``HANK'' JOHNSON, Jr., DANIEL E. LUNGREN, California Georgia J. RANDY FORBES, Virginia PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas CHARLES A. GONZALEZ, Texas 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 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 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. 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 co-editor 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. 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 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 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:] Prepared Statement of Charles G. Geyh [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ 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 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:] Prepared Statement of Akhil Reed Amar [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ 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 proceedings. 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 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:] Prepared Statement of Michael J. Gerhardt [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] __________ 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 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. 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 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 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 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 noncriminal, 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 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 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, 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 difference. 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 conceal. 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 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 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, associations 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 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 extraordinary 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. 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 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, 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 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 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 Senate 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 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.]