House Judiciary Committee May Open Impeachment Investigation of Judge Samuel B. Kent:
According to this Houston Chronicle article, several members of the House Judiciary Committee have expressed interest in potentially opening up an investigation into the possiblity of impeaching U.S. District Judge Samuel B. Kent, who has a long history of dubious conduct, culminating in a recent sexual harrassment charge, that led to an extremely rare reprimand from the the US Court of Appeals for the Fifth Circuit Judicial Council.
Impeachment would certainly be justified if the accuser's lawyer (quoted in the article) is right to claim that Kent's alleged harrassment (the details of which are not publicly known) amounted a criminal offense.
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- The Indictment of U.S. District Court Judge Samuel Kent
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- House Judiciary Committee May Open Impeachment Investigation of Judge Samuel B. Kent:
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- U.S. Court of Appeals for the Fifth Circuit Admonishes Judge Samuel B. Kent for Sexual Harassment of a Judiciary Employee:
Because some groups are more equal than the rest of us.
It says something very unfortunate about the courts, that if he had not picked on a person with a PC grievence lobby, he'd still be judging today.
Harassment has MUCH less to do with the conduct of his position than do the other accusations, which misuse the acutal powers he is given and affect far more people, all of which are apparently of less worth than this woman.
This is not to say he shouldn't lose his job if the accusations are true. However, our priorities are screwed up badly.
Remember, it took a charge of tax evasion to finally put Al Capone in jail. Was that the worst of his transgressions? Obviously not.
Is it higher than preponderance, which was presumably the burden under which Kent was found civilly liable?
IT seems highly likely that his offense went well beyond "saying the wrong thing."
That offense, had he committed it, would surely be grounds for impeachment. I doubt that any constitutional law expert would argue otherwise.
You're one of those pro se litigants, aren't you?
"October 24, 2001, Wednesday, BC cycle
"Galveston federal judge uses humor to run efficient courtroom
"By JUAN A. LOZANO, Associated Press Writer"
". . . 'I have tried very hard to make sure Galveston is seen as a professional place, a place where important work is done in a really responsible way to sort of dispel the mythology that everybody in Texas is a bunch of hicks and rednecks and fools and we're down here hanging people as fast as we can get them into the courtroom,' [Kent] said."
How did Kent show his commitment to due process and fairness? The article goes on to explain:
"But even Kent agrees that he occasionally goes too far.
"He recalls the lawsuit the American Civil Liberties Union brought against the Santa Fe school district. In a 1995 hearing, Kent ruled that prayer could be part of the high school's graduation ceremony as long as references to specific religious figures were not used.
"To ensure that people stayed within the ruling's parameters, Kent tried to make a funny remark.
"'So I make the statement that anybody who violates the rulings of this court is going to wish they had died as a child,' he said. 'Well, as the words leave my mouth I'm thinking, "Oh, man, I wish I had a time machine and I could go back four minutes."'
Maybe Congress can make him wish this even more fervently.
As far as state prosecution -- the federal courthouse is almost certainly within that. Had to research the issue while at Interior. Exclusive federal jurisdiction is defined in the constitution, basically military bases and DC. Courthouse is at best concurrent, and probably just proprietary (Federal government is the landlord, but as a sovereign landlord has a few extra rights, e.g., to define criminal offenses and punish them in its own courts). State has the same power to prosecute under its own laws that it would have were the offense committed on any other landlord's realty.
Because he's a federal judge? Because the Fifth Circuit was more concerned with protecting a fellow judge than punishing him? The Fifth Circuit did indeed have the power to order an investigation, and to publish the results of that investigation. They did not. Infer what you will from this omission.
Granted, the public does not yet know what is alleged. What we do know is that Judge Kent allegedly did some "act," (i.e., he didn't just say, "Hey, toots"), and that this act was enough to make a seasoned court employee have a breakdown while at work.
Inappropriately touching someone is not "harassment." It's assault. Is assault not an impeachable offense? Is "inappropriately touching" people good behavior?
Let's look at Texas law. Under Penal Code Sec. 22.01: " § 22.01. ASSAULT. (a) A person commits an offense if the
person: (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." Moreover, "An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: (1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty []." I would suspect a court clerk is a public servant under the statute, though I have not looked at the case law.
In any event, Judge Kent has allegedly committed a misdemeanor or a felony. Tell me how this is good behavior?
Now, everyone has been saying: "The Fifth Circuit had to keep the allegations confidential under 28 U.S.C. 360." This is a lie. Under 28 U.S.C. 355:
.
If Kent committed assault, then he committed an impeachable offense - unless, of course, someone wants to argue that assaulting someone is consistent with Article III's Good Behavior Clause. Thus, rather than waiting to publish the order on a Friday (to avoid media coverage), the panel should have referred the matter to the House. Yet the panel chose not to do this.
I hope the House holds hearings, and the Senate holds a trial. If indeed Kent committed sexual battery, it will confirm what many think of the Fifth Circuit's attitude towards women.
I'm still confused. Doesn't the local police precinct have the authority to conduct an investigation of a crime? Surely the police can investigate allegation of workplace harassment even if the employer does not specifically ask them to do so. Probably most such investigations are conducted against the wishes of the employer, after all.
Because Yagman was indicted for tax fraud. Yagman is the one who reported the issues about Real; so much of the hearings dealt not with the evidence against Real, but about Yagman.
The 5th Circuit not only has that power but used it, and ended up reprimanding Kent. The problem is that they can't impose much in the way of punishment or discipline on him. Congress or the criminal justice system would be a different matter.
And it's not as if no judges criticized Real; Kozinski tore him a new one. So to speak. But the rest of the judges seemed more interested in apologizing for him, even after they officially found he had lied to them in explaining his misconduct.
The burden of persuasion is the Ford Standard:
"I have studied the principal impeachment actions that have been initiated over the years and frankly, there are too few cases to make very good law. About the only thing the authorities can agree upon in recent history, though it was hotly argued up to President Johnson's impeachment and the trial of Judge Swayne, is that an offense need not be indictable to be impeachable. In other words, something less than a criminal act or criminal dereliction of duty may nevertheless be sufficient grounds for impeachment and removal from public office.
What, then, is an impeachable offense?
The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. Again, the historical context and political climate are important; there are few fixed principles among the handful of precedents."
-Gerald R. Ford.
I think he nailed it dead on: the burden of persuasion is whatever Congress, at that moment, decides it is. Perhaps not as a matter of ideals, but as a practical matter, there's no Circuit Congress to check whether or not the Senate's jury instructions were proper, and I think it's like the pardon or veto power in that the courts, rightly, have no business touching it.
First, it's not the Fifth Circuit. It's the Judicial Council of the Fifth Circuit. If you want a shorthand reference, say "Judicial Council." Almost half its members aren't Circuit Judges, they're District Judges (like Kent).
Second, and much more important, the Judicial Council certainly could have imposed either a more severe or a less severe punishment. The specific punishment it chose was calibrated to the facts, as determined by what appears to have been an extraordinary investigation that included taking of sworn testimony, none of which (as you elsewhere have noted) we have the benefit of. One can make arguments one way or the other as to whether we should. But to be honest, one must recognize that the Judicial Council's possible punishments, by statute, could have included a referral to the Judicial Conference (different body) with a recommendation for referral to the Congress for impeachment proceedings. The Congress isn't bound by that, but why pretend that the option didn't exist for the Judicial Council? Why not acknowledge that it does exist and that the Council chose not to take it?
By inaccurately painting the Council as toothless, you make it seem as though it's more likely than it really is that Judge Kent has been inadequately punished.
David M.N. - I can't answer why Real hasn't been impeached. I also can't answer why Andrew Hauk (Real's mentor) was never impeached.
Nick
If I'm wrong in my inference that "closed" really means "closed," and if instead among the "remedial action [that] will be taken" is a secret referral to the Judicial Conference with an impeachment recommendation per 28 U.S.C. § 354(b), then the Conference and, perhaps, Congress as well will get the benefit of knowing that recommendation.
Otherwise, people looking at this situation should understand that the Council could have used the statutory framework by which Congress has solicited the view of the federal courts that one of its own judges ought to be impeached, and has instead declined to make that recommendation.
To be intellectually fair to Judge Kent, in describing this situation, one should note that fairly important fact, so that readers will understand that if, as it has the power to do, Congress considers impeachment anyway, it's doing so contrary to the scope of remedial action the courts themselves had prescribed using the standing authority Congress had given them. With due respect, that's my objection to Prof. Somin's entire series of posts on this matter: Nowhere in it does he acknowledge that the Council could have, but did not, recommend impeachment.