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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.

Ryan Waxx (mail):
Its sad to see that "ordinary" misconduct... the kind that ruins peoples lives and confiscates property isn't enough to get someone impeached, but saying the wrong words to a female does.

Because some groups are more equal than the rest of us.
10.3.2007 11:30pm
Ryan Waxx (mail):
In a just world, conspiring to systematically abuse your office for profit would be the impeachment offense, with harrassment of ANY variety being mere frosting on the cake.

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.
10.3.2007 11:39pm
Crunchy Frog:
If you are a dirtbag in one aspect of your career, you are more likely to be a dirtbag in others.

Remember, it took a charge of tax evasion to finally put Al Capone in jail. Was that the worst of his transgressions? Obviously not.
10.3.2007 11:53pm
Ryan Waxx (mail):
Because that was the only thing they could make stick in court. Are you suggesting a similar explanation here?
10.3.2007 11:56pm
Siona Sthrunch (mail):
Does anyone know what the burden of persuasion is for impeachment?

Is it higher than preponderance, which was presumably the burden under which Kent was found civilly liable?
10.4.2007 12:04am
Ilya Somin:
Its sad to see that "ordinary" misconduct... the kind that ruins peoples lives and confiscates property isn't enough to get someone impeached, but saying the wrong words to a female does.

IT seems highly likely that his offense went well beyond "saying the wrong thing."
10.4.2007 12:13am
Ryan Waxx (mail):
But unlikely it went beyond grand conpiracy to commit fraud using his judical powers.
10.4.2007 12:18am
Ilya Somin:
But unlikely it went beyond grand conpiracy to commit fraud using his judical powers.

That offense, had he committed it, would surely be grounds for impeachment. I doubt that any constitutional law expert would argue otherwise.
10.4.2007 12:25am
MikeC&F (mail):
But unlikely it went beyond grand conpiracy to commit fraud using his judical powers.

You're one of those pro se litigants, aren't you?
10.4.2007 12:55am
Maximilian Longley (mail) (www):
"The Associated Press State &Local Wire

"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.
10.4.2007 1:10am
Dave Hardy (mail) (www):
As I recollect "good behavior" had British antecedents. This might just go beyond them, and if so, good riddance.

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.
10.4.2007 1:11am
Lior:
I'm confused. If the conduct amounted to a criminal offense, why wasn't there a police investigation? Why wasn't the judge charged with the crime?
10.4.2007 2:24am
MikeC&F (mail):
If the conduct amounted to a criminal offense, why wasn't there a police investigation? Why wasn't the judge charged with the crime?

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:

(b) If Impeachment Warranted. -
(1) In general. - If the Judicial Conference concurs in the
determination of the judicial council, or makes its own
determination, that consideration of impeachment may be
warranted, it shall so certify and transmit the determination and the record of proceedings to the House of Representatives for whatever action the House of Representatives considers to be necessary. Upon receipt of the determination and record of proceedings in the House of Representatives, the Clerk of the House of Representatives shall make available to the public the determination and any reasons for the determination
.

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.
10.4.2007 4:02am
David M. Nieporent (www):
IT seems highly likely that his offense went well beyond "saying the wrong thing."
Speaking of which, why is Manuel Real still a federal judge?
10.4.2007 4:22am
Lior:

The fifth ciruit has the power to order an investigation ...


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.
10.4.2007 11:25am
Adam J:
Lior- Do you really think the local police are going to deal with a workplace harassment case? And why would you find it odd that the 5th circuit can investigate itself? A company can obviously investigate itself (I think that they are legally obligated to when there is a harassment claim). On a (barely) related note- did any see that Sol Wachtler got reinstated to the NY bar?
10.4.2007 12:10pm
Horatio (mail):
Please, pretty please, pretty please with a cherry on top - add Alcee Hastings to the Judiciary Committee for giggles.
10.4.2007 1:04pm
MikeC&F (mail):
Speaking of which, why is Manuel Real still a federal judge?

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.
10.4.2007 3:14pm
Ilya Somin:
The fifth ciruit has the power to order an investigation

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.
10.4.2007 4:04pm
happylee:
The suspense is killing me. What did he do and to whom did he do it? What a useless fourth estate we have...A good old fashioned National Enquirer reporter would've revealed it all by now, with photo spread.
10.4.2007 5:40pm
David M. Nieporent (www):
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.
Well, Yagman is a jackass. But he had nothing to do with the case in question other than reporting it, so it's not as if the substance of the allegations came from him.

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.
10.4.2007 7:21pm
Steve2:

Does anyone know what the burden of persuasion is for impeachment?

Is it higher than preponderance, which was presumably the burden under which Kent was found civilly liable?


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.
10.4.2007 9:33pm
Bill Dyer (mail) (www):
Prof. Somin comments above,

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.


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.
10.5.2007 1:31am
NickM (mail) (www):
How do we know they did not refer the matter to the Judicial Conference? Is such a referral automatically public?

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
10.5.2007 8:16am
Bill Dyer (mail) (www):
Nick, I suppose it's possible that there could have been a secret referral. However, the order recites (emphasis mine) that "by a majority vote, the Council accepted the recommendations of the Special Investigatory Committee and concluded these proceedings because appropriate remedial action had been and will be taken, included but not limited to the Judge's four-month leave of absence from the bench, reallocation of the Galveston /Houston docket and other measures."

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.
10.5.2007 1:10pm
肿瘤 (mail):
10.7.2007 11:52pm