Senate Convicts Federal Judge Thomas Porteous

The Senate has just convicted federal district Judge Thomas Porteous, whose trial concluded yesterday, on all four articles of impeachment against him. The votes ranged from 69-27 to 96-0. The Senate unanimously convicted Porteous on Article I, which focused on his corruption in taking kickbacks from a law firm involved in a case he presided over as a federal judge. At the other extreme, 27 senators voted against Article II, which addressed Porteous’ corrupt relationship with a bail bondsman while he was a state judge. Perhaps these senators bought defense lawyer Jonathan Turley’s argument that the Constitution bars impeachment for offenses committed before a judge is appointed to the federal bench.

I think Turley’s argument is incorrect under the text of the Constitution. Article II, Section 4 states that “all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and misdemeanors.” It doesn’t impose any limitation regarding the timeframe during which the relevant crime was committed. If a federal judge confirmed in 2010 is later discovered to have committed murder in 2009, surely Congress could use impeachment to remove him from the bench.

Some, including Turley, have argued that Article III’s statement that judges serve during “good behavior” suggests that they can only be removed for misconduct committed during their time in judicial office. But this provision is generally interpreted to mean only that judges have the right to serve for life unless they are impeached and convicted. Moreover, Article III does not mandate that “bad behavior” justifying removal must occur during the judge’s tenure of office. Finally, Article III does not purport to limit the scope of Article II, Section 4. The best interpretation of the two articles is that judges can serve for life unless they are impeached and convicted for “high crimes and misdemeanors,” regardless of when the latter were committed.

In addition, the Senate also voted 94-2 to bar Porteous from holding federal office in the future. So no one need worry about him getting elected to Congress, as impeached judge Alcee Hastings did.

UPDATE: Senior Conspirator Eugene Volokh points out that it’s not entirely clear that the Senate has the power to ban impeached and convicted judges from running for Congress. He discussed the issue in some detail in this 2009 post. I tend to think that the Senate ultimately does have that power. But Eugene’s analysis shows that the issue is a lot more debatable than I initially thought.