INTRODUCTION

This article briefly discusses the potential grounds for impeachment of a federal judge, identifies the persons who may initiate the impeachment process, and provides an overview of how to initiate an impeachment proceeding in the U.S. House of Representatives.

The U.S. House of Representatives alone has the power to formally charge a federal judge with wrongdoing, a process known as impeachment. A House majority can accomplish this by adopting articles of impeachment, which are effectively written accusations (similar to an indictment in ordinary criminal proceedings). The Senate alone has the power to try an impeachment and render a verdict regarding whether the individual should be removed from office and possibly barred from holding future office. Two-thirds of Senators voting must agree to convict and remove a federal judge from office. The Senate could also separately decide to disqualify an officer from holding future federal office. Disqualification requires only a majority vote.

The House impeachment process generally proceeds in three phases: (1) initiation of the impeachment process; (2) Judiciary Committee investigation, hearings, and markup of articles of impeachment; and (3) full House consideration of the articles of impeachment. (Congressional Research Service https://crsreports.congress.gov R45769, Updated Nov. 14, 2019).

Grounds for Impeachment

The grounds for impeachment are limited to “Treason, Bribery, or other high Crimes and Misdemeanors.” (U.S. CONST. Article II, §4).

The question of what conduct by a federal judge constitutes an impeachable offense has evolved to the position where the focus is now on public confidence in the integrity and impartiality of the judiciary. (H. Rept. 111-427 – Impeachment of G. Thomas Porteous, Jr., Judge of the United States District Court For the Eastern District of Louisiana at 15/158 (2010) citing H.R. Rep. No. 101-36, Impeachment of Walter L. Nixon, Jr., Report of the Committee on the Judiciary to Accompany H. Res. 87, 101st Cong., 1st Sess. (1989)).

In sum, the impeachment power is not limited to cases of serious ethical or criminal misconduct. The reasoning behind DOJ’s decision not to prosecute Judge Porteous is instructive. The Porteous impeachment report noted that the following observations are in order.

“The nature of Congress’s determination whether to impeach is fundamentally different from DOJ’s decision whether to prosecute. Congress does not decide guilt or innocence with reference to a criminal statute. Rather, it is for Congress to make what is in essence a “fitness for office” determination. Congress alone has the power to remove an unfit federal judge, and conduct that renders a judge unfit may not necessarily violate a criminal statute.”

“Even though aspects of Judge Porteous’s conduct may appear to support a criminal prosecution, the DOJ faced numerous practical obstacles that would necessarily have impacted its considerations as to whether prosecution was in order for certain categories of conduct. One problem in particular involved the statute of limitations – a potentially insurmountable hurdle in a criminal prosecution, but not a bar to impeachment. Some of the most corrupt conduct, such as Judge Porteous’s relationship with the Marcottes and his initiation of the “curatorship” scheme with Creely and Amato, was time-barred by the statute of limitations. Nonetheless, such conduct, even if it cannot be used to support a Federal criminal prosecution, is profoundly relevant to the determination of whether Judge Porteous should remain a Federal judge.” (H. Rept. 111-427 – Impeachment of G. Thomas Porteous, Jr., Judge of the United States District Court For the Eastern District of Louisiana at 152/158 and 28/158 (2010)).

Who May Initiate the Impeachment Process?

Any person alleging that a federal judge has engaged in conduct which is reasonably likely to result in a substantial and widespread lowering of public confidence in the integrity and impartiality of the judiciary may file material related to the conduct of the federal judge with the U.S. House of Representatives.

Material related to the conduct of a federal judge might reach the House and be referred to committee prior to the adoption of a resolution directing a committee to conduct an investigation. Historically, this has included petitions and materials from citizens. In addition, standing committees, under their general investigatory authority, can seek information and research charges against federal judges prior to the approval of a resolution to authorize an impeachment investigation.

Impeachment proceedings are usually initiated in the House when a Member submits a resolution through the hopper (in the same way that all House resolutions are submitted). A resolution calling for the impeachment of a federal judge will be referred to the Judiciary Committee.

Impeachment proceedings could also be initiated by a Member on the floor. A Member can offer an impeachment resolution as a “Question of the Privileges of the House.” The House, when it considers a resolution called up this way, might immediately vote to refer it to the Judiciary Committee, leaving the resolution in the same status as if it had been submitted through the hopper. The House relies on the Judiciary Committee to first conduct an investigation, hold hearings, and report recommendations to the full House. (Congressional Research Service https://crsreports.congress.gov R45769, Updated Nov. 14, 2019).

Committee consideration is therefore typically the second stage of the impeachment process. It has been more common than not that the Judiciary Committee used information provided from another outside investigation. The committee might create a task force or a subcommittee to review this material and collect any other information through subpoenas, depositions, and public hearings.

If the committee determines that impeachment is warranted, it will mark up articles of impeachment using the same procedures followed for the markup of other legislation. If the Judiciary Committee reports a resolution impeaching a federal judge, that resolution qualifies for privileged consideration on the House floor; its consideration is the third stage of the impeachment process.

Impeachment Initiated by a Complaint of Judicial Misconduct

The Judicial Conduct and Disability Act of 1980 established a process within the judicial branch for responding to complaints about judges. Findings from those investigations could result in the Judicial Conference of the United States informing the House that the impeachment of a judge may be warranted. A letter reporting that the Judicial Conference had reached such a determination would be referred to the Judiciary Committee.

Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct. (28 U.S. Code § 351).

The impeachment of G. Thomas Porteous, Jr., Judge of the United States District Court for the Eastern District of Louisiana is instructive. (H. Rept. 111-427 – Impeachment of G. Thomas Porteous, Jr., Judge of the United States District Court For the Eastern District of Louisiana at 5/158 to 8/158 (2010)).

In or about late 1999, the DOJ and the FBI commenced a criminal investigation of Judge Porteous. The criminal investigation continued for several years, and ultimately ended in early 2007, without an indictment. Among the reasons the DOJ gave in declining prosecution were that some of the conduct at issue was barred by the statute of limitations, and that some of the demonstrably false statements may not have been “material” as a matter of law.

In a letter dated May 18, 2007, the DOJ submitted a formal complaint of judicial misconduct to the Honorable Edith H. Jones, Chief Judge, United States Court of Appeals for the Fifth Circuit. The DOJ Complaint Letter described numerous instances of alleged misconduct by Judge Porteous that potentially related to his fitness as a judge.

Upon receipt of the DOJ Complaint Letter, the Fifth Circuit appointed a Special Investigatory Committee (the “Special Committee”) to investigate the Department’s allegations. A hearing was held before the Special Committee on October 29 and 30, 2007 at which Judge Porteous, representing himself, testified, cross-examined witnesses, and called witnesses on his own behalf. Thereafter, the Special Committee issued a Report to the Judicial Council of the Fifth Circuit, dated November 20, 2007. That Report concluded that Judge Porteous committed misconduct which “might constitute one or more grounds for impeachment.”

On December 20, 2007, by a majority vote, the Judicial Council of the Fifth Circuit accepted and approved the Special Committee’s Report and likewise concluded that Judge Porteous “had engaged in conduct which might constitute one or more grounds for impeachment under Article I of the Constitution.” The Fifth Circuit Judicial Council thereafter certified these findings and the supporting records to the Judicial Conference of the United States.

On June 17, 2008, the Judicial Conference of the United States determined unanimously, upon recommendation of its Committee on Judicial Conduct and Disability, to transmit to the Speaker of the House a Certificate “that consideration of impeachment of United States District Judge G. Thomas Porteous (E.D. La.) may be warranted.” (Certificate of the Judicial Conference of the United States, to the Speaker, United States House of Representatives [Re: Determination that Consideration of Impeachment of Judge G. Thomas Porteous may be Warranted], June 17, 2008). The Certificate was thereafter hand-delivered to the Honorable Nancy Pelosi, Speaker of the House, on June 18, 2008.

On September 10, 2008, the Judicial Council of the Fifth Circuit issued an “Order and Public Reprimand” taking the maximum disciplinary action allowed by law against Judge Porteous, including ordering that no new cases be assigned to him and suspending his authority to employ staff for 2 years or “until Congress takes final action on the impeachment proceedings, whichever occurs earlier.”

On September 17, 2008, the House of Representatives of the 110th Congress passed H.Res. 1448, which provided, in pertinent part: “Resolved, That the Committee on the Judiciary shall inquire whether the House should impeach G. Thomas Porteous, a judge of the United States District Court for the Eastern District of Louisiana.”

On January 22, 2009, the impeachment inquiry was referred by the Committee on the Judiciary to a Task Force on Judicial Impeachment (“Task Force”), comprised of 12 Committee Members, to conduct the investigation.

KEY TAKEAWAYS FROM THIS ARTICLE

(1) The question of what conduct by a federal judge constitutes an impeachable offense has evolved to the position where the focus is now on public confidence in the integrity and impartiality of the judiciary. (H. Rept. 111-427 – Impeachment of G. Thomas Porteous, Jr., Judge of the United States District Court For the Eastern District of Louisiana at 15/158 (2010) citing H.R. Rep. No. 101-36, Impeachment of Walter L. Nixon, Jr., Report of the Committee on the Judiciary to Accompany H. Res. 87, 101st Cong., 1st Sess. (1989));

(2) Under our Constitution, the American people must look to the Congress to protect them from federal judges who are unfit to hold high office because of serious misconduct that has violated the public trust: and

(3) The impeachment of a federal judge may be initiated by any citizen, a U.S. Representative, or by a Complaint of Judicial Misconduct (28 U.S. Code § 351) which subsequently results in the Judicial Conference of the United States informing the U.S. House of Representatives that the impeachment of a judge may be warranted.