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Porteous Post-Trial Brief In The Senate of The United States Sitting as a Court of Impeachment In re: Impeachment of G. Thomas Porteous, Jr. United States District Judge for the Eastern District of Louisiana JUDGE G. THOMAS PORTEOUS, JR.’S POST-TRIAL BRIEF Jonathan Turley Daniel C. Schwartz Keith Miles Aurzada George Washington John C. Peirce BRYAN CAVE LLP University Law School P.J. Meitl 2200 Ross Avenue 2000 H Street, N.W. Daniel T. O’Connor Dallas, Texas 75201 Washington, D.C. 20052 Ian L. Barlow BRYAN CAVE LLP Brian C. Walsh 1155 F Street, N.W. BRYAN CAVE LLP Washington, D.C. 20004 211 N. Broadway St. Louis, MO 63102 Counsel for G. Thomas Porteous, Jr. United States District Court Judge for the Eastern District of Louisiana October 29, 2010 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 EXECUTIVE SUMMARY ............................................................................................................ 3 Pre-Federal Conduct ........................................................................................................... 4 Article I ............................................................................................................................... 5 Article II.............................................................................................................................. 9 Article III .......................................................................................................................... 13 Article IV .......................................................................................................................... 16 BACKGROUND – JUDGE G. THOMAS PORTEOUS, JR....................................................... 20 CONSTITUTIONAL STANDARD ............................................................................................. 25 BURDEN OF PROOF .................................................................................................................. 26 STANDARD OF PROOF............................................................................................................. 27 ARGUMENT................................................................................................................................ 30 I. There is No Constitutional Basis or Precedent for the Removal of a Federal Judge For Alleged Pre-Federal Conduct............................................................................30 A. The Pre-Federal Nature of Articles I and II...........................................................31 B. By Alleging Pre-Federal Conduct, Articles I and II Violate the Language and Intent of the Impeachment Clauses of the United States Constitution............33 C. The Senate Has Convicted Judges Only For Misconduct Committed During Federal Service ..........................................................................................37 II. Article I..............................................................................................................................46 A. What Article I Does – and Does Not – Allege.......................................................48 B. The Core of Article I Is Constitutionally Invalid After Skilling ............................48 C. Pre-Federal v. Federal Conduct .............................................................................53 D. Pre-Federal Conduct (Pre-October 1994) ..............................................................53 1. The Small, Tight-Knit Legal Community in Gretna, Louisiana................53 i 2. Close, Long-Standing Friendships: Amato, Creely, and Gardner ......................................................................................................54 3. Despite Being Friends For Decades, Creely and Amato Appeared in Court Before Judge Porteous Very Infrequently...................56 4. No Link Between Curatorships and Gifts..................................................56 5. Lunches, Fishing Trips, Hunting Trips......................................................64 6. Timothy Porteous’s 1994 Senate Internship..............................................67 E. Federal Conduct (Post-October 1994) ...................................................................68 1. Background of the Lifemark Case..............................................................69 2. Counsel in the Lifemark Case ....................................................................71 3. Disclosures During the Lifemark Recusal Hearing....................................74 4. Denial of the Lifemark Recusal Motion.....................................................77 5. Lifemark’s Machiavellian Scheme to Remove Judge Porteous ................78 6. Conduct Following the Lifemark Trial ......................................................82 7. Ruling in the Lifemark Trial ......................................................................86 F. Conclusion .............................................................................................................86 III. Article II.............................................................................................................................88 A. Judge Porteous Never Took Any Judicial Action for the Purpose of Benefitting the Marcottes.......................................................................................91 1. There is no evidence that Judge Porteous ever improperly set, reduced, and/or split a bond.......................................................................92 2. Judge Porteous Acted Appropriately in Expunging Jeff Duhon’s Record and in Setting Aside Aubrey Wallace’s Conviction................................................................................................103 B. Although Judge Porteous Had Lunch with the Marcottes, There is Little to No Evidence Supporting the House’s Allegations Regarding his Receipt of Other Things of Value........................................................................118 1. Judge Porteous Admits That He Occasionally Ate Lunch with the Marcottes............................................................................................119 ii 2. Single Trip to Las Vegas..........................................................................123 3. Home Repairs...........................................................................................127 4. Car Repairs...............................................................................................129 C. Judge Porteous Did Not Abuse the Power and Prestige of His Office as a Federal Judge .......................................................................................................130 1. Lunches While on the Federal Bench ......................................................131 2. Cocktail Reception with Bodenheimer ....................................................136 IV. Article III.........................................................................................................................138 A. Article III Allegations: Mistakes, Errors, and Omissions...................................139 B. Errors and Omissions Are Exceedingly Common in Bankruptcy .......................140 C. Judge Porteous’s Bankruptcy Should Not be Subject to Harsher Scrutiny Simply Because He Is a Federal District Court Judge.........................................143 D. None of the Article III Allegations Warrants Removal.......................................143 1. The Porteouses’ Bankruptcy....................................................................143 2. Very Brief Use of a Pseudonym ..............................................................144 3. Inadvertent Omissions of a Few, Small Assets........................................147 4. Unintentional Inaccuracies in Projected Income .....................................151 5. Omission of Two Minor Pre-Petition Payments......................................153 6. Non-Disclosure of Gambling Losses and Debts......................................155 7. Post-Confirmation Conduct.....................................................................156 E. Compared with Prior Impeachments, Article III’s Allegations of Private, Minor Bankruptcy Misconduct Do Not Justify Removal from Office...............159 V. Article IV.........................................................................................................................163 A. The Allegations Against Judge Porteous in Article IV........................................164 B. Judge Porteous Did Not Submit False Answers or Withhold Information from the FBI or the Senate...................................................................................166 1. SF-86 and Supplemental SF-86 ...............................................................166 iii 2. FBI Background Check Commences.......................................................170 3. First FBI Interview of Judge Porteous.....................................................171 4. First FBI Interview of Louis Marcotte.....................................................172 5. Anonymous Sources Discussed the Marcotte Relationship, Bond-Setting, and Lunches......................................................................176 6. The Senate was aware of these allegations or facts at the time of Judge Porteous’s confirmation vote ....................................................178 7. Senate Judiciary Questionnaire, Review, and Investigation....................179 C. Proven Misrepresentations Far
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