It is 21 years since the last impeachment trial before a Senate committee, for which I was the lead defense lawyer. It involved Judge Walter L. Nixon, Jr. of Mississippi. I skip over the impeachment proceeding concerning President Clinton, because the Senate did not actually hear any evidence in that case, in a rare victory for taste and good sense. eally,did you want Monica Lewinsky’s testimony in your living room?
So, having defended one impeachment trial and written a book about another (yes, Andrew Johnson’s), I find this all pretty interesting and would stress a few points for you armchair impeachment buffs (and you know who you are):
- The Senate trial committee proposes to hear evidence from 8 a.m. to 7 p.m, Monday through Thursday, with breaks for votes on the Senate floor. That’s a real long day. I wonder if they will stick to it.
- The proceeding will be available by webcast, in real time, through the trial committee’s website. I will definitely be tuning in. Maybe not 11 hours a day.
- The evidence will not be presented to the full Senate, but only to this committee of 12 senators. The other 88 senators will be invited to watch recorded versions of the hearings, read the transcripts, and so on. They won’t.
- The 12 senators on the committee were not randomly chosen. Certain traits prevail among them. These include:
- Except for Republican Jim DeMint of South Carolina, they are not up for re-election. DeMint is facing a Democratic opponent who has been charged with a felony violation of showing obscenity to a minor. I guess DeMint figured he could spare the time for the impeachment.
- They have very little seniority, and thus could not duck this assignment, except for Orrin Hatch of Utah, the ranking majority member. Senator Hatch was supposed to be on my trial committee 21 years ago, but had to pull out, so maybe he felt guilty about that and is atoning with his service on the Porteous trial committee. In truth, in my limited exposure to Senator Hatch during our trial, he was a very fair and open-minded participant. I was sorry to see him go.
- They are overwhelmingly from smaller states, and thus have fewer constituents to cope with: Rhode Island (Whitehouse), Delaware (Kaufman), Risch (Idaho), Wyoming (Barrasso), Johanns (Nebraska), Mississippi (Wicker), South Carolina (DeMint),New Mexico (Udall), New Hampshire (Shaheen). The most populous states represented on the committee are Minnesota (Klobuchar) and Missouri (committee chair Claire McCaskill).
- The articles of impeachment against Porteous have a couple of interesting wrinkles. First, they charge him with misconduct while a state court judge, before he became a federal judge, and allege that he wrongly concealed his prior misconduct when he was being confirmed by the Senate. This has the feel of a boostrap argument, and may not be too attractive to some senators.
- A sprinkling of former prosecutors (McCaskill, Klobuchar, Risch, Whitehouse) on the trial committee, but lots of non-lawyers, as well.
- Three of the articles lump several different allegations together in what I would call an “omnibus” article. Our sole triumph in the Nixon case (and it was a small triumph) was persuading the Senate that omnibus articles should not be used in impeachments, as they are a form of judicial log-rolling, allowing the prosecutors to stitch together the 2/3 majority they need by eliciting a few votes based on one allegation, and a few more for another, and so on. The Senate did not convict Judge NIxon on the omnibus article against him. The House prosecutors this time claim that their articles are not really omnibus articles, because they do not lump together ALL of the charges against Porteous, but only some of them. That’s pretty thin gruel. I hope the Senate does not buy it.
- The House prosecutors claim they have evidence that while he was a federal judge, Porteous refused to recuse himself from a case despite his close relationship with one set of lawyers before him, and that he asked those lawyers for money shortly after he refused to recuse himself. If that charge proves up, I would expect him soon to be an ex-judge.
- Indeed, I think the odds are pretty long against Porteous anyway. It’s not much of a defense to say that, well, I took those improper payments before I went on the federal bench, so I should remain on the federal bench. “High crimes and misdemeanors” is a murky enough standard of proof that some of the allegations against Porteous should stick.
But that’s why they play the games!