The Role of the Senate in Judicial
Impeachment Proceedings: Procedure,
Practice, and Data
Susan Navarro Smelcer
Analyst on the Federal Judiciary
April 9, 2010
Congressional Research Service
7-5700
www.crs.gov
R41172
CRS Report for Congress
P
repared for Members and Committees of Congress
The Role of the Senate in Judicial Impeachment Proceedings
Summary
On March 17, 2010, the Senate organized for the impeachment trial of G. Thomas Porteous, U.S.
district court judge for the Eastern District of Louisiana. The House of Representatives had voted
on March 11, 2010, to approve four articles of impeachment against Judge Porteous, which
alleged that the judge engaged in a “corrupt scheme” with a law firm and failed to recuse himself
in a case where that same law firm represented one of the parties; solicited favors or gifts from a
bail bondsman and the bail bondsman’s sister while the judge used his official position to provide
assistance to them and their business; made material false statements in conjunction with his
personal bankruptcy filing; and made material false statements to the Senate and the FBI in
connection with his nomination to the federal bench. The House had impeached Judge Porteous
on these charges, fulfilling it its constitutional role as the chamber with the “sole Power of
Impeachment.” The Senate is now faced with executing its constitutional responsibility to “try all
Impeachments.” The Senate, however, receives little constitutional guidance on how these trials
should be conducted. Procedure in the Senate is primarily governed by the special rules
established for impeachment trials, precedents established by previous impeachment trials, and
existing Senate procedure.
Impeachment trials in the Senate are rare, in that only 11 impeachment trials have been completed
over the 221-year history of the Senate, while three others terminated before a determination on
the merits of the case due to the resignation of the judges in question. Impeachment trials are also
unique, in that each trial presents a wholly complex and individual set of facts and circumstances
for the Senate’s consideration. Thus, although this report may provide guidance as to the general
structure of the process, each trial presents new procedural, factual, and evidentiary questions that
must be resolved by either the full Senate, acting as a Court of Impeachment, or an impeachment
trial committee charged with building a record and reporting it to the full Senate.
This report examines the history, practice, and procedures of the Senate in fulfilling its
constitutional obligation to try and to vote whether to convict and impose judgment upon judges
impeached by the House of Representatives. The first section presents an overview of the
impeachment process, including observations on parallels and contrasts between this institutional
mechanism and the more familiar criminal judicial process. The second section discusses the
rules used by the Senate to structure its proceedings. The third section describes the role of the
Senate’s Presiding Officer. The fourth section examines the use of Rule XI committees, otherwise
known as impeachment trial committees. Special attention is given to the procedures of the
committee during various stages of its proceedings. The fifth and sixth sections address
deliberation and judgment by the full Senate, respectively. The seventh section provides a
discussion of the length of Senate impeachment trials, examining in particular whether the use of
impeachment trial committees have affected the length of Senate trials. The eighth and final
section provides some concluding observations on Senate impeachment proceedings against
judges.
This report will be updated as events warrant.
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The Role of the Senate in Judicial Impeachment Proceedings
Contents
Introduction ................................................................................................................................ 1
An Overview of the Impeachment Process in the House and Senate ............................................ 1
Rules Governing Senate Impeachment Proceedings..................................................................... 5
Organizing the Senate for Trial.................................................................................................... 6
The Role of the Presiding Officer ................................................................................................ 9
Use of an Impeachment Trial Committee................................................................................... 10
Organization and Responsibilities of the Committee............................................................ 10
Procedure During the Preliminary Phase of Its Proceedings ................................................. 12
Procedure During the Evidentiary Phase of Its Proceedings ................................................. 13
Submitting a Report to the Full Senate ................................................................................ 14
Deliberation by the Full Senate ................................................................................................. 15
Judgment by the Full Senate...................................................................................................... 17
Length of Senate Impeachment Trials........................................................................................ 18
Concluding Observations .......................................................................................................... 21
Tables
Table 1. Impeached Judges Tried by the Senate ......................................................................... 20
Table 2. Summary of Senate Trial Durations.............................................................................. 21
Appendixes
Appendix A. H. Res. 1031, Articles of Impeachment Against Judge G. Thomas Porteous ........... 23
Appendix B. Chart of the Senate Impeachment Trial Process..................................................... 27
Contacts
Author Contact Information ...................................................................................................... 28
Acknowledgments .................................................................................................................... 28
Congressional Research Service
The Role of the Senate in Judicial Impeachment Proceedings
Introduction
On March 17, 2010, the Senate organized for the impeachment trial of G. Thomas Porteous, U.S.
district court judge for the Eastern District of Louisiana. The House of Representatives had voted
on March 11, 2010, to approve four articles of impeachment against Judge Porteous, which
alleged that the judge engaged in a “corrupt scheme” with a law firm and failed to recuse himself
in a case where that same law firm represented one of the parties; solicited favors or gifts from a
bail bondsman and the bail bondsman’s sister while the judge used his official position to provide
assistance to them and their business; made material false statements in conjunction with his
personal bankruptcy filing; and made material false statements to the Senate and the FBI in
connection with his nomination to the federal bench.1 The House had impeached Judge Porteous
on these charges, fulfilling it its constitutional role as the chamber with the “sole Power of
Impeachment.”2 The Senate is now faced with executing its constitutional responsibility to “try
all Impeachments.”3 The Senate, however, receives little constitutional guidance on how these
trials should be conducted. Procedure in the Senate is primarily governed by the special rules
established for impeachment trials, precedents established by previous impeachment trials, and
existing Senate procedure.
This report examines the history, practice, and procedures of the Senate in fulfilling its
constitutional obligation to try and to vote whether to convict and impose judgment upon judges
impeached by the House of Representatives. The first section presents an overview of the
impeachment process, including observations on parallels and contrasts between this institutional
mechanism and the more familiar criminal judicial process. The second section discusses the
rules used by the Senate to structure its proceedings. The third section describes the role of the
Senate’s Presiding Officer. The fourth section examines the use of Rule XI committees,4
otherwise known as impeachment trial committees. Special attention is given to the procedures of
the committee during various stages of its proceedings. The fifth and sixth sections address
deliberation and judgment by the full Senate, respectively. The seventh section provides a
discussion of the length of Senate impeachment trials, examining in particular whether the use of
impeachment trial committees have affected the length of Senate trials. The eighth and final
section provides some concluding observations on Senate impeachment proceedings against
judges.
An Overview of the Impeachment Process in the
House and Senate
While the judicial branch was designed by the Framers to be independent of political influence,
the methods of judicial appointment and removal were designed to be political.5 The President
1 H.Res. 1031, which includes the articles of impeachment against Judge Porteous, appears in Appendix A.
2 U.S. Constitution, Art. I, Sec. 2, Cl. 5.
3 U.S. Constitution, Art. I, Sec. 3, Cl. 6.
4 Rule XI of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, which are
discussed below.
5 The removal process is political in at least three respects: “(1) it is political in the originalist sense of the term, insofar
(continued...)
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The Role of the Senate in Judicial Impeachment Proceedings
and the Senate determine who is placed on the bench. The House of Representatives and the
Senate determine who is removed. As both the President and Congress are subject to the approval
of the voters, the appointment and removal process is ultimately a political one.
Under Article II, Section 4 of the U.S. Constitution, the President, Vice President, and “all civil
Officers of the United States,” including federal judges, may be subject to impeachment by the
House and removal by the Senate. Although much of the procedure described in this report is
applicable to impeachment proceedings against all civil officers of the United States, this report
focuses specifically on history, procedure, and precedent associated with impeachment
proceedings against judges. As “civil Officers of the United States,” judges may be impeached
and, if convicted, removed for “Treason, Bribery, or other high Crimes and Misdemeanors.”
Treason is defined in the Constitution and in statute. Bribery, while not defined in constitutional
language, was an offense at common law and has been defined in statute since the First
Congress.6 The terms “other high Crimes and Misdemeanors” are not defined in the Constitution
or in statute, and have been the subject of continuing debate. Judges appointed under Article III of
the U.S. Constitution “hold their Offices during good Behaviour.”7 Although there are differing
views, some have suggested that this clause should be read in conjunction with Article II, Section
4, when a federal judge is the focus of an impeachment proceeding. Congressional precedents
seem to indicate that both criminal acts and non-criminal acts that violate the public trust may be
considered impeachable offenses. The House Judiciary Committee explained in its report on the
impeachment of Judge Walter L. Nixon, Jr.:
[t]he House and Senate have both interpreted the phrase broadly, finding that impeachable
offenses need not be limited to criminal conduct. Congress has repeatedly defined “other
high Crimes and Misdemeanors” to be serious violations of the public trust, not necessarily
indictable offenses under criminal laws... 8
[F]rom a historical perspective, 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. When a judge’s conduct calls
into question his or her integrity or impartiality, Congress must consider whether
impeachment and removal of the judge from office is necessary to protect the integrity of the
judicial branch and uphold public trust.9
(...continued)
as it is a remedy for “political” crimes against the body politic; (2) it is political in the sense of being a process subject
to resolution by popular or political majorities, through their representatives in one of the political branches; and (3) it
can be political in the sense of being openly partisan.” See Charles Gardner Geyh, When Courts and Congress Collide:
The Struggle for Control of America’s Judicial System (Ann Arbor, MI: University of Michigan Press, 2006), p. 116.
(Hereafter Geyh, When Courts and Congress Collide.)
6CRS Report 98-186, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice, by Elizabeth
B. Bazan and Anna C. Henning, p. 21. (Hereafter Bazan and Henning, Impeachment: An Overview.)
7 U.S. Constitution, Art. III, Sec. 1. District court judges located in the 50 states, the District of Columbia, and Puerto
Rico; appellate judges located in the 12 geographic circuits and the Federal Circuit; Supreme Court Justices; and judges
on the Court of International Trade are all considered to be Article III judges.
8 Bazan and Henning, Impeachment: An Overview, p. 23, citing U.S. Congress, House Committee on the Judiciary,
Impeachment of Walter L. Nixon, Jr., Report to accompany H. Res. 87, 101st Cong., 1st sess., April 25, 1989, H.Rept.
101-36 (Washington: GPO, 1986), p. 5. (Hereafter Nixon House Impeachment Report.)
9 Bazan and Henning, Impeachment: An Overview, p. 24, citing Nixon House Impeachment Report, p. 12.
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While impeachment is a political process as delineated in the U.S. Constitution, there are some
surface parallels that may be drawn to the criminal judicial process.10 The House of
Representatives possesses the “sole Power of Impeachment.” As a result, the House has discretion
to begin impeachment inquiries, conduct investigations into questions of improper behavior that
could lead to impeachment, and recommend a course of action. The House’s decision of whether
to impeach a judge is somewhat analogous to an indictment, in that the House acts as a grand jury
and may impeach by only a majority vote.11
Once a judge has been impeached, the Senate is notified. In some respects, the Senate acts
similarly to a petit jury12 and judge by hearing evidence, determining whether to convict on the
articles of impeachment transmitted by the House, and, where appropriate, determining what
judgment to impose within constitutional limits.13 Unlike impeachment by the House, however,
conviction by the Senate requires a two-thirds vote on any article of impeachment. The Senate
may only impose a judgment of removal from office or removal and disqualification from holding
“any Office of honor, Trust or Profit under the United States.”14 In modern practice, conviction on
any article of impeachment results in removal from office. If the Senate deems the additional
judgment appropriate, it must vote separately, by majority vote, for disqualification from holding
office in the future.15
An impeachment trial, however, stands wholly separate from a criminal proceeding. Neither
impeachment by the House nor conviction by the Senate precludes criminal indictment or
conviction on charges related to crimes for which a judge was impeached. As a political process,
impeachment and conviction as delineated in the Constitution seek to protect the integrity of
American political and judicial institutions. To this point, House managers in a 1989
impeachment trial argued,
Criminal proceedings and impeachment serve fundamentally different purposes: the former
is designed to punish an offender and seek retribution, while the latter is the first step in a
remedial process. The purpose of impeachment is not personal punishment, but rather to
maintain constitutional government through removal of unfit officials from positions of
public trust.16
10 The American impeachment process was modeled, to some degree, on prior English impeachment practice. In the
latter, penal sanctions could be imposed upon conviction for any crime or misdemeanor upon any person. In designing
a federal constitutional mechanism, the Framers looked with more interest to the colonial experience than to then
current impeachment practices in the British Parliament. In contrast, the American impeachment mechanism is
restricted in its applicability to specified federal officers. Additionally, unlike the English system, in which the House
of Lords was permitted to order any punishment following a conviction, the American system mandated that “[o]nly
regular federal courts could take life or limb for crimes, and a Federal official might face trial in these courts whatever
the outcome of his impeachment.” Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 (New
Haven, CT: Yale University Press, 1984), pp. 96-97. See also Bazan and Henning, Impeachment: An Overview, p. 5.
11 For more information on the impeachment process in the House of Representatives, see CRS Report R41110, The
Role of the House of Representatives in Judicial Impeachment Proceedings: Procedure, Practice, and Data, by Susan
Navarro Smelcer and Betsy Palmer.
12 In the American criminal judicial process, a petit jury, or trial jury, is defined as a “group of citizens who hear
evidence presented by both sides at trial and determine the facts in dispute.” Robert A. Carp and Ronald Stidham, The
Federal Courts, 4th ed. (Washington, D.C.: CQ Press, 2001), p. 242.
13 Geyh, When Courts and Congress Collide, p. 116.
14 U.S. Constitution, Art. I, Sec. 3, Cl. 7.
15 A flow chart of this process is located in Appendix B.
16 See U.S. Congress, Senate Committee on Rules and Administration, Procedure for the Impeachment Trial of U.S.
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The procedures and constitutional requirements associated with Senate trials of an impeached
judge are somewhat less well-defined than those of criminal trials. The Constitution is silent, for
example, on whether the person impeached is entitled to counsel, the appropriate involvement of
the Executive Branch during impeachment proceedings,17 and the value of precedent with respect
to the structure of the proceedings. Additionally, Senators have not used a standard burden of
proof in their deliberations,18 and rules of evidence are generally ad hoc or absent.19 While there
is little constitutional guidance as to the correct procedures by which to conduct an impeachment
trial, the judiciary has shown a great deal of deference to Congress with respect to the methods by
which impeachment investigations are conducted and tried.20 These issues are only a few of the
myriad constitutional, practical, and procedural issues surrounding impeachment proceedings in
the Senate.21
(...continued)
District Judge Alcee Hastings in the United States Senate, Report to accompany S. Res. 38 and S. Res. 39, 101st Cong.,
1st sess., February 2, 1989, S. Rept. 101-1 (Washington: GPO, 1989), p. 19. (Hereafter Hastings Procedure.)
17 The U.S. Constitution does provide clear guidance that the Executive Branch has no official role in impeachment
proceedings in the House and the Senate. As discussed above, the House is given the “sole Power of Impeachment,”
and the Senate, the “sole Power” to try all impeachments. What is unclear, however, is the extent to which the
Executive Branch may attempt to initiate or contribute to an impeachment investigation in the House or trial in the
Senate. For example, should attorneys and investigators in the Department of Justice provide materials being collected
for an ongoing investigation in which a judge has not yet been indicted? In the case of the House of Representatives,
one scholar notes that, prior to the 1980s, the Department of Justice (DOJ) did not provide indictment materials to
impeachment investigations due to Separation-of-Powers concerns, to avoid the “perception that politics played a role
in the decision to initiate or stall a criminal or impeachment investigation,” and, equally likely, that the DOJ believed
that a criminal prosecution would expedite a judge’s resignation more quickly than an impeachment proceeding.
Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis (Princeton, NJ:
Princeton University Press, 1996), p. 30. (Hereafter Gerhardt, The Federal Impeachment Process.)
18 Scholars have indicated that there is no standard burden of proof used by all Senators. In general, Senators are guided
by their conscience. For a more comprehensive discussion of this topic, see CRS Report 98-990, Standard of Proof in
Senate Impeachment Proceedings, by Thomas B. Ripy; and Gerhardt, The Federal Impeachment Process, pp. 40-43.
19 Gerhardt, The Federal Impeachment Process, p. 112. Gerhardt, however, argues that rules of evidence in
impeachment proceedings are unnecessary. He states, “Both state and federal courts require special rules of evidence to
make trials more efficient and fair to keep certain evidence away from a jury, whose members might not understand or
appreciate its reliability, credibility, or potentially prejudicial effect.” Senators, however, are a “sophisticated and
politically savvy body,” p. 115. To this point, another scholar, Charles Black, argued, “Senators are in any case
continually exposed to ‘hearsay’ evidence; they cannot be sequestered and kept away from newspapers, like a jury. If
they cannot be trusted to weigh evidence, appropriately discounting for all the factors of unreliability that have led to
our keeping some evidence away from juries, then they are not in any way up to the job, and ‘rules of evidence’ will
not help,” quoted by Gerhardt, pp.115-116, from Charles Black, Impeachment: A Handbook (New Haven, CT: Yale
University Press, 1973), p. 18.
20 See, e.g., Nixon v. United States, 113 S. Ct. 732 (1993), in which the Supreme Court ruled that a challenge to the
procedures by which the Senate conducted the impeachment trial of a judge were not reviewable by the courts. In this
case, the Supreme Court noted especially that the Constitution gave the Senate the power to try impeachments. As a
result, only that institution could determine its rules and procedures. For an extended discussion of judicial decisions
related to impeachment, see Bazan and Henning, Impeachment: An Overview, pp. 8-11.
21 For more information regarding the legal and constitutional issues surrounding the Senate’s exercise of its
impeachment powers, see Bazan and Henning, Impeachment: An Overview; and CRS Report RL30042, Compendium
of Precedents Involving Evidentiary Rulings and Applications of Evidentiary Principles from Selected Impeachment
Trials, by Elizabeth B. Bazan et al.
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Rules Governing Senate Impeachment Proceedings
Although the Constitution vests the Senate with the “sole Power” to try all impeachments, it
provides little guidance on how the Senate should conduct those trials. The Constitution mandates
only that Senators shall be under oath or affirmation when sitting as a Court of Impeachment, that
the Chief Justice of the Supreme Court shall preside over the proceedings when the President is
being tried, and that “no Person shall be convicted without the Concurrence of two thirds of the
Members present.”22 Additionally, the Constitution limits the scope of the judgment that may be
imposed on a judge following conviction by the Senate.
Beyond the Constitution, the Senate relies on its standing rules and a supplement to the standing
rules, known as the Rules of Procedure and Practice in the Senate When Sitting on Impeachment
Trials, to guide its actions during impeachment trials. The Rules of Procedure and Practice in the
Senate When Sitting on Impeachment Trials comprise 26 rules (Rules I-XXVI). These rules
provide structure for various aspects of impeachment trials, such as presentation of the articles of
impeachment by the House managers (Rule II), the role of the Presiding Officer (Rule V), the
recording of proceedings (Rule XIV), and guidelines for Senators who wish to participate in the
proceedings (Rule XIX), among other things.
These rules were first adopted prior to the impeachment trial of President Andrew Johnson in
1868 and have changed little since that time. The revision to the Rules of Procedure and Practice
in the Senate When Sitting on Impeachment Trials—the creation of the impeachment trial
committee—was a result of the 1933 impeachment trial of Judge Harold Louderback. As one
scholar noted, “The Louderback proceeding lasted for 76 of the first one hundred days of
President Franklin D. Roosevelt’s first term, one of the busiest legislative periods in American
history.” Following this trial, at least 40 Senators argued that, given the heavy legislative agenda
of the Senate and time-consuming nature of impeachment trials, the process would be better
served if the evidence were collected by a committee.23 Eventually, the Senate passed a resolution
authorizing the Senate to create a 12-member committee to receive evidence during impeachment
trials. In 1935, this change was incorporated into the Rules of Procedure and Practice in the
Senate When Sitting on Impeachment Trials as Rule XI. The rules were most recently amended in
1986, when Rule XI was modified to remove the requirement that the trial committee comprise
12 members.24
An impeachment trial committee, like the full Senate when meeting as a Court of Impeachment,
operates according the Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials. When those rules are silent, the Senate has previously determined that both
proceedings in the full Senate and the trial committee’s proceedings should be governed by the
standing rules of the Senate.25 For example, when Chief Justice Salmon Chase presided over the
22 U.S. Constitution, Art. I, Sec. 3, Cl. 6.
23 Gerhardt, The Federal Impeachment Process, p. 34.
24 Ibid.
25 U.S. Congress, Senate Committee on Rules and Administration, Procedure and Guidelines for Impeachment Trials
in the United States Senate (Revised Edition), Prepared Pursuant to Senate Resolution 439, Submitted by Senator
Robert C. Byrd and Senator Robert Dole, by Floyd M. Riddick, Parliamentarian Emeritus of the United States, and
Robert B. Dove, Parliamentarian of the United States Senate, 99th Cong., 2nd sess., August 15, 1986, S. Doc. 99-33
(Washington: GPO, 1986), pp. 74. (Hereafter Procedure and Guidelines for Impeachment Trials.) See also U.S.
Congress, Senate Special Committee on the Impeachment Trial of Judge Harry E. Claiborne, “Statement of Senator
(continued...)
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impeachment trial of President Andrew Johnson, the Chief Justice justified his ruling on a
question of order by stating, “The Chief Justice in conducting the business of the court adopts for
his general guidance the rules of the Senate sitting in legislative session as far as they are
applicable.”26
Senate rules may also be supplemented or altered by unanimous consent. For example, in 1986,
the Senate agreed by unanimous consent to set time limits on certain portions of impeachment
trial proceedings against Judge Harry Claiborne, permitted television cameras to “focus on any
person speaking” during the presentation of closing arguments, and provided that the Senate
deliberate in closed session.27
The Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials are
included in the Senate Manual,28 as are the standing rules of the Senate.29 The manual is available
from the Government Printing Office (GPO) and is also online at a variety of places, such as the
GPO website.30 The rules are also reprinted in S. Doc. 99-33, Procedure and Guidelines for
Impeachment Trials in the United States Senate (Revised Edition).31 For the remainder of this
report, a reference to a Senate rule, such as Rule XI, refers to the Rules of Procedure and Practice
in the Senate When Sitting on Impeachment Trials, not the standing rules.
Organizing the Senate for Trial
An impeachment trial may commence after the receipt of a message from the House of
Representatives, informing the Senate that the House has voted to impeach a judge, adopted
articles of impeachment, and appointed House managers for the Senate trial.32 Historically, the
(...continued)
Mathias, Organizational Meeting,” Report of the Senate Impeachment Trial Committee, hearings before the Senate
Impeachment Trial Committee, 99th Cong., 2nd sess., August 15, 1986, S. Hrg. 99-812, Pt. 1 (Washington: GPO, 1986),
p. 18. (Hereafter Claiborne Impeachment.)
26 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States, Including References to
Provisions of the Constitution, the Laws, and Decisions of the United States Senate (Washington, D.C.: GPO, 1907),
vol. III, §2101, p. 432. (Hereafter Hinds’ Precedents.)
27 U.S. Congress, Senate, Riddick’s Senate Procedure: Precedents and Practices, prepared by Floyd M. Riddick,
Parliamentarian Emeritus, and Alan S. Frumin, Parliamentarian, 101st Cong., 2nd sess., S. Doc. 101-28 (Washington:
GPO, 1992), pp. 872-873.
28 U.S. Senate, Committee on Rules and Administration, “Rules of Procedure and Practice of the Senate When Sitting
on Impeachment Trials: Revised pursuant to S. Res. 479, 99-2, Aug. 16, 1986,” Senate Manual, containing the
Standing Rules, Orders, Laws, and Resolutions Affecting the Business of the United States Senate, prepared by
Matthew McGowan, 110th Congress (Washington, D.C.: GPO, 2008), http://www.gpoaccess.gov/smanual/browse.html,
pp. 170-199. (Hereafter Rules of Procedure and Practice of the Senate When Sitting on Impeachment Trials.)
29 For more information on the standing rules of the Senate, see CRS Report 96-548, The Legislative Process on the
Senate Floor: An Introduction, by Valerie Heitshusen.
30 The Senate Manual is available on the GPO website at http://www.gpoaccess.gov/smanual/browse.html.
31 This document, first printed in the 93rd Congress, also contains precedent relevant to Senate impeachment trials,
including, but not limited to, the adoption of supplementary rules (p. 74), the disqualification of Senators (p. 77), and
limitations on the number of witnesses (p. 83).
32 House managers are charged with presenting the House’s case against the judge during the impeachment trial in the
Senate. This role is exemplified in the report submitted by the committee investigating Judge Robert W. Archbald in
1912, in which the committee’s report recommended the presentation of the articles of impeachment to the Senate
“with a demand for the conviction [of Judge Archbald] and removal from office.” Clarence Cannon, Cannon’s
Precedents of the House of Representatives of the United States (Washington, D.C.: GPO, 1936), vol. VI, §499, p. 686.
(continued...)
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House took separate votes on one or more of these actions. For example, in the 1862
impeachment of Judge West H. Humphreys, the House first chose to pass a general resolution,
which simply stated that Judge Humphreys be impeached of “high crimes and misdemeanors.”
Immediately after the passage of this resolution, the House passed another resolution that
authorized two Members to go to the bar of the Senate to inform the Senate that the House had
found Judge Humphreys guilty of high crimes and misdemeanors and would “in due time exhibit
particular articles of impeachment against him.” The House did not report or adopt articles of
impeachment against Judge Humphreys or appoint House managers until May 19, 1862, 13 days
after the initial impeachment vote.
In modern practice, however, the House has consolidated this process so that the vote to impeach
and approve articles of impeachment occur at the same time. For example, the impeachment of
Judge Porteous on March 11, 2010, did not require separate votes on whether Judge Porteous
should be impeached and whether to approve the articles of impeachment.33
After voting on articles of impeachment, the House selects House managers for the Senate
impeachment trial. In the case of the impeachment of Judge Porteous, Representative Adam
Schiff, chair of the Impeachment Task Force of the House Judiciary Committee, called up a
privileged resolution to appoint House managers and asked unanimous consent for its “immediate
consideration” by the House.34 The House has most frequently appointed five Members to argue
the House’s case before the Senate, although the number of managers appointed by the House has
ranged from three35 to nine36 in the 15 instances in which the House voted to impeach a judge.
The House has invariably appointed a greater number of Members from the majority party than
the minority party. On average, House managers of the majority party comprised about 68%, or
roughly two-thirds, of the total number of House managers appointed for each impeachment trial.
This proportion is slightly higher than the average percentage of seats held by the majority party
in the House (62%) in those Congresses during which articles of impeachment were adopted
against a judge. Following the impeachment of Judge Porteous on March 11, 2010, the House
passed H.Res. 1165, appointing five Members to serve as House managers for the Porteous
impeachment trial. Following historical patterns, three managers were Democrats and two were
Republicans.37
(...continued)
(Hereafter Cannon’s Precedents.)
33 See Proceedings in the House of Representatives, “Impeachment Judge G. Thomas Porteous,” Cong. Rec., March 11,
2010, pp. H1327-H137.
34 Proceedings in the House of Representatives, “Appointing and Authorizing Managers for the Impeachment of Judge
G. Thomas Porteous,” Cong. Rec., March 11, 2010, p. H1340.
35 Representatives Hatton Sumners (chairman of the House Judiciary Committee), Randolph Perkins, and Sam Hobbs
were appointed by resolution to act as House managers in the impeachment trial of Halsted Ritter in 1936. Deschler’s
Precedents, Ch. 14, §18.5.
36 Representatives Peter W. Rodino (chairman of the House Judiciary Committee), Robert W. Kastenmeier, William J.
Hughes, Romano Mazzoli, Dan Glickman, Hamilton Fish, Henry Hyde, Thomas Kindness, and Michael DeWine were
appointed by resolution to be House managers in the impeachment trial of Harry Claiborne in 1986. “Claiborne
Impeached, Stripped of Judgeship,” CQ Almanac (Washington, D.C.: CQ Press, 1986), pp. 77-78.
37 Representatives Adam Schiff (chairman of the House Impeachment Task Force), Bob Goodlatte (Ranking Member
of the House Impeachment Task Force), Zoe Lofgren, Henry C. “Hank” Johnson, III, and James Sensenbrenner were
appointed by resolution on March 11, 2010, to be House managers in the impeachment trial of Judge Porteous.
Proceedings of the House of Representatives, “Appointing and Authorizing Managers for the Impeachment of Judge G.
Thomas Porteous, Jr.,” Cong. Rec., March 11, 2010, p. H1340.
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The first responsibility of House managers is to verbally impeach the judge before the bar of
Senate and demand that the Senate order the judge to appear and face the charges against him.38
Prior to the House managers’ appearance before the Senate, however, the House sends a message
informing the Senate of the impeachment and asks the Senate to prepare for trial. The Senate, in
return, responds to the House’s message with the time at which the House managers should
appear before the Senate to present the charges against the impeached judge. Following the
House’s impeachment of Judge Porteous, pursuant to H.Res. 1165, a message notifying the
Senate of the impeachment was delivered on March 15, 2010. The Senate replied the same day,
indicating that it would be ready to receive the House managers on March 17, 2010, at 2:00 p.m.,
“in order that they may present and exhibit the said articles of impeachment against the said G.
Thomas Porteous, Judge of the United States District Court for the Eastern District of
Louisiana.”39
After the House managers are received by the Senate and present the articles of impeachment, all
Senators must be sworn as a Court of Impeachment. The swearing of all Senators is performed to
fulfill a constitutional requirement that, when sitting for the purpose of trying an impeachment,
the Senators will “be on Oath or Affirmation.”40 First, the oath must be by tradition administered
to the Presiding Officer by a Senator selected by body at large. During the Porteous impeachment,
the majority leader proposed that the minority leader administer the oath to the Presiding Officer,
to which the Senate agreed. After taking the oath, the Presiding Officer then administered the oath
to the rest of the Senate. A Senator may seek to be excused from service in the Court of
Impeachment.41 The oath may also be administered to absent Senators at a later date.42 According
to Rule XXV of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment
Trials, each Senator is sworn in as a juror with the following oath:
I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of
the impeachment of [impeached judge], now pending, I will do impartial justice according to
the Constitution and laws: So help me God.
Following the taking of the oath, the Senate issues a summons to the impeached judge to respond
to, or “answer,” the articles of impeachment presented by the House. The Senate then sets a time
within which the House managers may respond to the impeached judge’s answer with a
38 Warren S. Grimes, “The Role of the U.S. House of Representatives in Proceedings to Impeach and Remove Federal
Judges,” in Research Papers of the National Commission on Judicial Discipline and Removal, vol. 1 (Washington,
D.C.: 1993), p. 64. (Hereafter Grimes, The Role of the House of Representatives in Proceedings to Impeach and
Remove Federal Judges.) In the most recent impeachment, the Senate passed S.Res. 457, which ordered that a
“summons shall be issued which commands G. Thomas Porteous, Jr., to file with the Secretary of the Senate an answer
to the articles of impeachment no later than April 7, 2010, and thereafter to abide by, obey, and perform such orders,
directions, and judgments as the Senate shall make in the premises, according to the Constitution and laws of the
United States.” Proceedings of the Senate, “Issuance of a Summons and for Related Procedures Concerning the Articles
of Impeachment Against G. Thomas Porteous, Jr.,” Cong. Rec., March 17, 2010, p. S1647.
39 Proceedings in the Senate, “Order for Exhibiting Articles of Impeachment Against G. Thomas Porteous, Jr.,” Cong.
Rec., March 15, 2010, p. S1562.
40 U.S. Constitution, Art. I, Sec. 3, Cl. 6.
41 Proceedings in the Senate, “Exhibition of Articles of Impeachment Against G. Thomas Porteous, Judge of the United
States District Court for the Eastern District of Louisiana,” Cong. Rec., March 17, 2010, p. S1644-1646.
42 For example, when the Senate organized for the trial of Walter L. Nixon, several Senators were absent and failed to
have the oath administered to them. Five days later, these Senators were sworn in by the President pro tempore.
Proceedings in the Senate, “Oath Administered Regarding Impeachment Trial of Walter L. Nixon,” Cong. Rec., May
16, 1989, pp. S5316-S5317.
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“replication.” A replication is a written response to the judge’s answer to the charges in the
articles of impeachment. As noted by scholars, a replication “usually consists of a general denial
of all allegations set forth in the respondent’s answer,”43 and serves to narrow the issues to be
addressed in the impeachment trial.
The summons is presented in the form of a resolution that, among other things, charges the
Sergeant at Arms with serving the summons, indicates the date by which the judge must answer
the articles of impeachment, and provides the date by which the House managers may file a
replication.44 While organizing for the Porteous impeachment, immediately after taking the oath,
the Senate passed S.Res. 457, which provided for the “issuance of a summons and for related
procedures concerning the articles of impeachment.”45 The Senate similarly moved to summon
impeached judges immediately after the administration of the oath when organizing for the
impeachment trials of Judges Harry Claiborne,46 Alcee Hastings,47 and Walter Nixon, Jr.48
The Role of the Presiding Officer
The Presiding Officer of the Senate presides over a Court of Impeachment.49 Formally, the
Presiding Officer is the Vice President acting in his capacity as the President of the Senate, as
then Vice President George H.W. Bush did at the beginning of the impeachment trial of Judge
Claiborne in 1986.50 However, the President pro tempore may also fill this role in the absence of
the Vice President. Additionally, the Senate may through a special order provide for an alternate
Presiding Officer in the absence of the Vice President and the President pro tempore. For
example, during the impeachment trial of Harold Louderback in 1933, the Senate adopted the
following order:
Ordered, That during the trial of the impeachment of Harold Louderback, United States
district judge for the northern district of California, the Vice President, in the absence of the
President pro tempore, shall have the right to name in open Senate, sitting for the said trial, a
Senator to perform the duties of the Chair.
43 Edwin Brown Firmage and R. Collin Mangrum, “Removal of the President: Resignation and the Procedural Law of
Impeachment,” Duke Law Journal, vol. 1974, p. 1055.
44 Pursuant to Rule VIII of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, the
summons is issued “upon the presentation of articles of impeachment and the organization of the Senate” as a Court of
Impeachment.
45 “Providing for issuance of a summons and for related procedures concerning the articles of impeachment against G.
Thomas Porteous, Jr.,” Cong. Rec., March 17, 2010, p. S1646.
46 U.S. Congress, Senate, Proceedings of the United States Senate in the Impeachment Trial of Harry E. Claiborne, A
Judge of the United States District Court for the District of Nevada, “S. Res. 481: To provide for the appointment of a
committee to receive and to report evidence with respect to articles of impeachment against Harry E. Claiborne,” 99th
Cong., 2nd sess., October 15, 1986, S. Doc. 99-48, pp. 6-7. (Hereafter Claiborne Proceedings.)
47 Proceedings in the Senate, “Impeachment of Judge Alcee L. Hastings, Introduction of S. Res. 456,” Cong. Rec., vol.
134, August 9, 1988, p. 21171.
48 Proceedings in the Senate, “Impeachment of Judge Walter L. Nixon, Jr.,” Cong. Rec., vol. 135, pt. 7, May 11, 1989,
p. S5131.
49 The role and responsibilities of the Presiding Officer during an impeachment trial are delineated by Rules III, V, VII,
XI, XVI, XIX, XXIII, XXIV, and XXV of the Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials.
50 Proceedings in the Senate, “Impeachment of Judge Harry E. Claiborne,” Cong. Rec., vol. 132, August 6, 1986, p.
S10535.
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The President pro tempore shall likewise have the right to name in open Senate, sitting for
said trial, or, if absent, in writing a Senator to perform the duties of the Chair; but in such
substitution in the case of either the Vice President or the President pro tempore shall not
extend beyond an adjournment or recess, except by unanimous consent.51
Use of an Impeachment Trial Committee
Organization and Responsibilities of the Committee
Prior to the impeachment of Judge Porteous, the House had impeached 14 judges and Justices. Of
these 14, the Senate has completed the trials of 11 (see Table 1).52 From the Senate’s first judicial
impeachment trial in 1805, in which the Senate removed Judge John Pickering from office,
through its 1936 conviction of Judge Halsted Ritter, the Senate resolved itself into a Court of
Impeachment, in which the entire body heard evidence and arguments for and against the
conviction of the judge. Although first adopted by the Senate in 1935 following the impeachment
trial of Judge Harold Louderback, the Senate did not invoke Rule XI of the Rules of Procedure
and Practice in the Senate When Sitting on Impeachment Trials to form an impeachment trial
committee until its trial of Judge Claiborne in 1986.53
An impeachment trial committee is charged with receiving evidence and taking testimony on
behalf of the entire Senate. The trial committee must report “to the Senate in writing a certified
copy of the transcript of the proceedings and testimony had and taken” by the committee. This
record may be hundreds or thousands of pages long. The committee is also responsible for
providing a factual summary of the evidence if directed to do so by the Senate,54 which it did in
the trials of Judges Claiborne (1986), Hastings (1988-1989) and Nixon (1989). According to Rule
XI, these proceedings are open to the public. The committee makes no recommendation as to the
merits of the case or its final outcome.
A committee is typically formed by resolution after the issuance of the summons. Through the
authorizing resolution, the Senate may as it sees fit grant to or withhold authority from the
committee. While organizing for the trial of Judge Porteous, the Senate approved S.Res. 458,
51 Senate Journal, 73rd Congress, 1st sess., May 15, 1933, p. 328.
52 Three other Senate impeachment trials involving federal judges were commenced but terminated before a decision on
the merits because the judge in question resigned. These three judges were Mark H. Delahay of the U.S. District Court
for the District of Kansas; George W. English of the U.S. District Court for the Eastern District of Illinois; and Samuel
B. Kent of the U.S. District Court for the Southern District of Texas.
53 Rule XI, as adopted on May 28, 1935, was amended prior to the Hastings trial in 1986. The Senate changed language
that would require the Senate to explicitly order the committee to take evidence. Additionally, the Senate removed the
requirement that the committee be composed of 12 Senators so that the Senate could set the membership of the
committee “in accord with the needs of the situation.” See a memo submitted August 30, 1988, by Jay R. Shampansky,
Legislative Attorney, Congressional Research Service, reprinted in Hastings Procedure, pp. 50-51.
54 Claiborne Proceedings, pp. 11-12; U.S. Congress, Senate Impeachment Trial Committee, Report of the Senate
Impeachment Trial Committee on the Articles Against Judge Alcee L. Hastings, “S. Res. 38: Committee Established to
Receive and Report Evidence with Respect to Articles of Impeachment Against Judge Alcee L. Hastings,” 101st Cong.,
1st sess., S. Hrg. 101-194, Pt. 1 (Washington: GPO, 1989), pp. 4-6 (hereafter Hastings Impeachment); U.S. Congress,
Senate Impeachment Trial Committee, Report of the Senate Impeachment Trial Committee on the Articles Against
Judge Walter L. Nixon, Jr., “S. Res. 128: Committee Established To Receive and Report Evidence With Respect to
Articles of Impeachment Against Judge Walter L. Nixon, Jr.,” 101st Cong., 1st sess., S. Hrg. 101-247, Pt. 1, pp. 1-5.
(Hereafter Nixon Impeachment.)
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providing for the appointment of an impeachment trial committee, immediately after issuing the
summons.55 This resolution, and similar resolutions passed by the Senate while organizing for the
impeachment trials of Judges Hastings and Nixon, included provisions that the membership of the
committee comprise 12 members (six from each party).56 This resolution also provided that the
committee be regarded as a standing committee of the Senate for “the purpose of reporting to the
Senate resolutions for the criminal or civil enforcement of the committee’s subpoenas or orders,”
authorized the committee to employ staff and consultants, and ordered the committee to report a
statement of uncontested facts, as well as a summary. Additionally, S.Res. 458 granted the chair
of the Rule XI committee the authority to “waive the requirement Rules of Procedure and
Practice in the Senate When Sitting on Impeachment Trials that questions by a Senator to a
witness, a manager, or counsel shall be reduced to writing and put by the Presiding Officer.”
In modern practice, resolutions authorizing the creation of impeachment trial committees have
included a provision allowing the Presiding Officer to appoint 12 members to an impeachment
trial committee. Originally, Rule XI included a provision that required the committee to have 12
members, with its membership evenly split between Democrats and Republicans. Although this
provision was removed in 1986, in each of the instances in which the Senate has employed a Rule
XI committee, the Presiding Officer has appointed six Democrats and six Republicans, upon the
recommendation of the majority and minority leaders.57 The chair and vice chair of this
committee may either be recommended by the majority and minority leaders of the Senate,
respectively, and approved by the Senate, or selected by the committee themselves by majority
vote.58
Once appointed, the impeachment trial committee is responsible for all organizational and
administrative aspects of the pre-trial and evidentiary phases of the impeachment trial, pursuant to
its authorizing resolution. In the past, these logistics have been managed by a counsel chosen
from the Senate Legal Counsel’s office, who works closely with the chair and vice chair. The
resolution authorizing the creation of the Rule XI committee in the proceedings against Judge
Porteous permits the committee to employ staff and consultants with the prior approval of the
Committee on Rules and Administration.59 Additionally, the committee works with the House
managers and the judge’s counsel to determine an appropriate timeline for the proceedings.
55 Proceedings in the Senate, “Providing for the Appointment of a Committee to Receive and to Report Evidence with
Respect to Articles of Impeachment Against Judge G. Thomas Porteous,” Cong. Rec., March 17, 2010, p. S1647.
56 Ibid. See also “S. Res. 38: To provide for the appointment of a committee to receive and to report evidence with
respect to articles of impeachment against Alcee L. Hastings,” Hastings Impeachment, Pt. 1, pp. 4-6; and “S. Res. 128:
To Provide for the appointment of a committee to receive and to report evidence with respect to articles of
impeachment against Judge Walter L. Nixon, Jr.,” Nixon Impeachment, Pt. 1, pp. 3-5.
57 Proceedings in the Senate, “Appointment of an Impeachment Trial Committee,” Cong. Rec., June 24, 2009, p.
S6961; Claiborne Proceedings, p. 13. Hastings Impeachment, Pt. 1, p. 7; Nixon Impeachment, Pt. 1, p. 7.
58 In the case of the Senate’s impeachment trial proceedings against Judge Samuel Kent, the majority and minority
leaders recommended a chair and vice chair of the committee – a recommendation which was then adopted by the
Presiding Officer. Proceedings in the Senate, “Appointment of an Impeachment Trial Committee,” Cong. Rec., June 24,
2009, p. S6961.
59 Specifically, S.Res. 458 states, “The actual and necessary expenses of the committee, including the employment of
staff at an annual rate of pay, and the employment of consultants with prior approval of the Committee on Rules and
Administration at a rate not to exceed the maximum daily rate for a standing committee of the Senate, shall be paid
from the contingent fund of the Senate from the appropriation account “Miscellaneous Items” upon vouchers approved
by the chairman of the committee, except that no voucher shall be required to pay the salary of any employee who is
compensated at an annual rate of pay.”
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Procedure During the Preliminary Phase of Its Proceedings
Both the House managers and the impeached judge file pretrial motions according to a timeline
determined by the committee, which may include (1) motions that the full Senate should hear all
or part of the evidence,60 (2) motions for the dismissal of an article of impeachment,61 (3)
admission of the testimony of a witness from a prior proceeding (e.g., a prior criminal
proceeding),62 (4) motions for defense funds,63 (5) motions to immunize witnesses,64 or (6)
stipulations to uncontested facts.65
The impeachment trial committee entertains arguments on these motions during a hearing or
hearings held specifically to dispose of pretrial motions. According Rule XXI of the Rules of
Procedure and Practice in the Senate When Sitting on Impeachment Trials, “[a]ll preliminary or
interlocutory questions, and all motions, shall be argued for not exceeding one hour (unless the
Senate otherwise orders) on each side.” The committee may choose to defer a ruling on a motion
to the full Senate,66 rule on the motions during the hearing, or choose to deliberate and issue an
order at a later date. For example, in the case of the Judge Nixon’s impeachment trial, the judge
filed a pretrial motion requesting the Senate to reimburse him for attorneys’ fees at $75 per hour
and out-of-pocket expenses. During the July 13, 1989, pretrial hearing, the committee entertained
arguments on this motion. After deliberating for 12 days, the committee issued its “First Order,”
in which it rejected Nixon’s request for the reimbursement of his defense costs, but allowed for
reasonable per diem and travel expenses for Judge Nixon’s witnesses called before the
committee.67
In the past, the committee has required House managers and the impeached judge to submit
pretrial statements, which generally included (1) factual summaries of the case, (2) arguments for
or against the articles of impeachment, (3) exhibits to be entered into the record, and (4) a list of
witnesses and the purpose for their testimony. The committee may choose to use orders to clarify
requirements for pretrial statements, as well as to encourage the parties to cooperate more fully on
discovery issues or factual stipulations. 68
60 See “Judge Nixon’s Motion for Trial by Senate (June 23, 1989),” and “Memorandum in Support for Judge Nixon’s
Motion for Trial by Senate (June 23, 1989),” in Nixon Impeachment, Pt. 1, pp. 93-116.
61 See “Judge Nixon’s Motion to Dismiss Impeachment Article III (June 23, 1989),” and “Memorandum in Support of
Judge Nixon’s Motion to Dismiss Impeachment Article III (June 23, 1989)” in Nixon Impeachment, Pt. 1, pp. 121-152.
62 See, e.g., “House Managers’ Proposed Use of Prior Testimony (June 15, 1989),” Hastings Impeachment, Pt. 1, pp.
757-766.
63 See, e.g., “Judge Alcee L. Hastings’ Motion Requesting Funds for Respondent’s Defense (March 30, 1989); printed
in the Congressional Record – Senate, and referred to the Committee (April 4, 1989)” and “Memorandum of House
Managers Regarding the Application of the Compensation Clause of the U.S. Constitution to Respondent’s Request for
Defense Funds (April 7, 1989)” in Hastings Impeachment, Pt. 1, pp. 203-218.
64 See, e.g., “Immunization of Witness Testimony,” Nixon Impeachment, Pt. 1, pp. 623-646.
65 See, e.g., “House of Representatives’ Proposed Stipulation of Facts,” Nixon Impeachment, Pt. 1, pp. 173-194.
66 For example, any pretrial motion that seeks to dismiss an article of impeachment may be properly considered by the
full Senate because such a ruling would involve the final disposition of an article.
67 See “First Order,” in Nixon Impeachment, Pt. 1, pp. 319-326.
68 See, for example, “Second Order,” in Nixon Impeachment, Pt. 1, pp. 341-347.
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Procedure During the Evidentiary Phase of Its Proceedings
After the committee has disposed of pretrial motions and each party has submitted a pretrial
statement, the impeachment trial committee begins its evidentiary hearings. These hearings begin
with opening statements by, first, the House managers and then by the impeached judge or the
impeached judge’s counsel. Precedents indicate that an opening statement is presented “for the
purpose of outlining what is expected to be proved.”69 The introduction of evidence or
questioning of witnesses during this phase of the proceedings has not been allowed.
Traditionally, the Senate has adopted orders that required that the opening statements of each
party be made by one person as provided by Rule XXII of the Rules of Procedure and Practice in
the Senate When Sitting on Impeachment Trials.70 For example, in the impeachment trial of
Halsted L. Ritter in 1936, the Senate entered an order that “the opening statement on the part of
the managers shall be made by one person, to be immediately followed by one person who shall
make the opening statement on behalf of the respondent.”71 A House manager, not counsel, has
traditionally made the opening statement on behalf of the House of Representatives. An
impeached judge, traditionally, has been represented by counsel.72 According to Rule XXII of the
Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, the first
opening statement and last closing argument are made by the House managers.
After opening statements, the committee begins by calling the witnesses summoned at the request
of the House managers. These witnesses are first subject to direct examination by a House
manager or House managers’ counsel.73 After the House manager has completed his or her
questioning, the judge’s counsel is afforded the opportunity to cross-examine74 the witness.
According to Senate rules, “witnesses shall be examined by one person on behalf of the party
producing them, and then cross-examined by one person on the other side.”75 After the House
managers’ witnesses have testified, the impeached judge is permitted to call witnesses. Like the
House managers, the counsel for the impeached judge engages in a direct examination of the
witness, which is followed by a cross-examination by a House manager or House managers’
counsel.
69 Procedure and Guidelines for Impeachment Trials, p. 62.
70 Similar orders were also adopted during the Senate impeachment proceedings against Judge Robert Archbald (1913)
and Harold Louderback (1933). Procedure and Guidelines for Impeachment Trials, p. 62.
71 Procedure and Guidelines for Impeachment Trials, p. 62. See also Rule XXII of the Rules of Procedure and Practice
in the Senate When Sitting on Impeachment Trials, which states, “The case, on each side, shall be opened by one
person. The final argument on the merits may be made by two persons on each side (unless otherwise ordered by the
Senate upon application for that purpose), and the argument shall be opened and closed on the part of the House of
Representatives.”
72 For example, during the Nixon impeachment trial, the opening statement for the House of Representatives was
delivered by Representative Don Edwards. The opening statement for Judge Nixon was delivered by David O. Stewart,
the judge’s counsel. “Opening statement on behalf of House managers” and “Opening statement on behalf of Judge
Walter L. Nixon, Jr.,” Nixon Impeachment, pp. 2-16.
73 A direct examination is “[t]he first questioning of a witness in a trial or other proceeding, conducted by the party who
called the witness.” Black’s Law Dictionary, ed. Bryan A. Garner, 7th ed. (St. Paul, MN: West Group, 2000), p. 371.
(Hereafter Black’s Law Dictionary.)
74 A cross examination is “[t]he questioning of a witness at a trial or hearing by the party opposed to the party who
called the witness to testify, [in order to] discredit a witness before the fact-finder ... ” Black’s Law Dictionary, p. 312.
75 Rule XVII, Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.
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Although not mandated by Senate rules, House managers or either party’s counsel may be
permitted by the committee to engage in a redirect examination76 and a recross examination77 of
the witness. For example, in evidentiary hearings conducted during impeachment proceedings
against Judge Nixon, House managers were permitted to conduct redirect examinations of all four
of their witnesses. Following the redirect examination of two of these four witnesses, Judge
Nixon’s counsel engaged in a recross examination. Additionally, in some instances, such as
during the evidentiary hearings in the impeachment trial of Harry E. Claiborne, counsel were
permitted to object to questions posed by opposing counsel during the questioning of a witness.78
After the House managers or both party’s counsels have completed their questioning, individual
Senators may submit questions to the witness for any purpose. For example, a Senator may wish
to question the witness or ask the witness to clarify a response. Rule XIX specifies that “[i]f a
Senator wishes a question to be put to a witness, or to a manager, or to the counsel of a person
impeached ... , it shall be reduced to writing, and put by the Presiding Officer.” In two of the three
most recent impeachment trials, however, the trial committee pursuant to the authorizing
resolution has permitted direct oral questioning of the witnesses by Senators. The only trial
during which the committee’s examination of witnesses was conducted according to Rule XIX, in
which Senators submitted questions in writing to the chair of the committee, was that of Judge
Claiborne. Additionally, the rule states that colloquy is not in order.79
Submitting a Report to the Full Senate
After all evidence has been received and all testimony taken, the committee submits a written
report to the full Senate. Typically, this report has contained copies of the Senate resolutions
authorizing the committee or passed in relation to the committee’s work, transcripts of
committee’s pretrial and evidentiary hearings, correspondence received by the committee from
the counsel for either party, reproductions of any orders issued by the committee, and copies of
letters sent by the chair and vice chair to agencies or individuals to request information. The
report has also included copies of any exhibits entered into the record by either party. Exhibits
may include, but are not limited to, telephone records,80 copies of payments made by check,81
newspaper articles,82 pages from personal calendars,83 and financial disclosure statements.84 This
76 A redirect examination is a “second direct examination, after cross-examination, [whose] scope is ordinarily limited
to matters covered during cross-examination.” Black’s Law Dictionary, p. 1026.
77 A recross examination is a “second cross-examination, after a redirect examination.” Black’s Law Dictionary, p.
1025.
78 According to Rule XIX, “[t]he parties or their counsel may interpose objections to witnesses answering questions
propounded at the request of any Senator and the merits of any such objection may be argued by the parties or their
counsel.” In these cases, counsel will be permitted to continue a direct or redirect examination of a witness for the sake
of clarification. See, for example, objections made by Nicholas D. Chabraja, on behalf of the House managers, during
the cross-examination of William L. Wilson during the Sept. 15, 1986, evidentiary hearing. Claiborne Impeachment,
pp. 610-611.
79 Colloquy, or a scripted exchange between a Senator and a committee chair or between Senators, is generally used to
clarify the intent of a legislative provision or a resolution. For an example of how a colloquy may be used, see CRS
Report RL30881, Senate Organization in the 107th Congress: Agreements Reached in a Closely Divided Senate, by
Elizabeth Rybicki.
80 See, for example, “Telephone bills for (305) 945-9939, residence line for William Dredge,” in Hastings
Impeachment, Pt. 3B, pp. 163-183.
81 See, for example, “Committee Exhibit No. 10: Note Payments by Nixon,” Nixon Impeachment, Pt. 4B, pp. 87-99.
82 See, for example, “House managers’ Exhibit No. 231: Newspaper article, Miami Herald, “Stadium foes question
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report may run thousands of pages long. No impeachment trial committee has been authorized to
make a recommendation on any article of impeachment.
Deliberation by the Full Senate
After the printing of the impeachment trial committee’s report, the Senate considers the
committee’s summary, if present, and the record of evidence. 85 According to Rule XI, any
evidence received or testimony taken by the committee and submitted to the full Senate “shall be
considered to all intents and purposes, subject to the right of the Senate to determine
competency,86 relevancy,87 and materiality.”88 Any motions regarding these issues may be decided
by the Presiding Officer, although a Senator may request that a motion be put to a vote.89
Additionally, the Senate is permitted to call any witness to testify, regardless of whether that same
witness testified before the impeachment trial committee.90
This stage of the Senate’s impeachment proceedings against a judge commence with a closing
statement made by the House managers. Unlike opening statements presented before the
impeachment trial committee, closing statements may be presented by more than one individual
for each party.91 During the Nixon impeachment trial in 1989, for example, the closing argument
for the House of Representatives was divided between three managers.92
(...continued)
Clark’s role,” Hastings Impeachment, p. 1966.
83 See, for example, “Respondent Exhibit No. 102: Personal diary of Judge Hastings, September 30-October 6, 1981,”
Hastings Impeachment, Pt. 3B, pp. 2794-2825.
84 See, for example, “Hearing Exhibit No. 13: Original 1981 Nixon financial disclosure statement, amended statement
and letter from Judge Tamm to Nixon, June 18, 1982,” Nixon Impeachment, Pt. 4B, vol. 3, pp. 476-482.
85 For a discussion of precedents involving evidentiary rulings in prior impeachment trials, see CRS Report RL30042,
Compendium of Precedents Involving Evidentiary Rulings and Applications of Evidentiary Principles from Selected
Impeachment Trials, by Elizabeth B. Bazan et al.
86 Competency refers to “the presence of those characteristics, or the absence of those disabilities, which render the
witness legally fit and qualified to give testimony.” For example, a question might arise with regard to whether a
witness has the personal knowledge or expertise to address the matter at issue. The term may also apply to the
authenticity of documents or other written evidence. Black’s Law Dictionary, ed. Joseph R. Nolan and Jacqueline M.
Nolan-Haley, 6th ed. (St. Paul, MN: West Group, 2000), p. 283.
87 The relevancy of evidence refers to whether evidence is logically connected to the articles under consideration and
has “appreciative probative value – that is, rationally tending to persuade people of the probability or possibility of
some alleged fact.” Black’s Law Dictionary, 7th ed., p. 1035.
88 If evidence is material, it means that it has some bearing on proving or disproving a fact that would make a charge
against a judge more or less likely to be true. Black’s Law Dictionary, 7th ed., p. 793.
89 Rule VII, Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.
90 Rule XI, Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.
91 Specifically, Rule XXII of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials
provides, in pertinent part, that closing arguments on the merits “may be made by two persons on each side (unless
otherwise ordered by the Senate upon application for that purpose), and the argument shall be opened and closed on the
part of the House of Representatives.”
92 The first section of the closing argument, presented by Representative Don Edwards, discussed the House’s efforts in
amassing a factual record and provided an overview of the alleged conduct that led to Judge Nixon’s criminal
conviction and the articles of impeachment against him. The second section, delivered by Representative James
Sensenbrenner, focused on two questions: (1) “Does the conduct alleged in the three articles impeachment state an
impeachable offense?” and (2) “Did the conduct occur?” The final section, argued by Representative Benjamin Cardin,
(continued...)
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After closing statements are delivered for both parties, Senators have the opportunity to submit
questions to the House managers and impeached judge’s counsel. According to Rule XIX,
questions posed by Senators during this phase are required to be submitted in writing to the
Presiding Officer. The content of the questions posed by Senators following closing statements
have addressed topics including, but not limited to, the structure of the articles of impeachment,93
counsels’ suggestions as to an appropriate standard of proof,94 the House managers’ opinions on
the logical conclusions to be drawn from the evidence,95 and whether a criminal prosecution is
relevant to impeachment proceedings.96
Following a period of questioning, the Senate generally begins a period of deliberation on the
articles. Rule XX states that “[a]t all times while the Senate is sitting upon the trial of an
impeachment the doors of the Senate shall be kept open, unless the Senate shall direct the doors
to be closed while deliberating upon its decisions.”97 While proceedings before the impeachment
trial committee generally follow this rule, the deliberation by the full Senate prior to voting on
articles of impeachment has traditionally occurred in a closed session. In the three most recent
trials, the determination of when to move into closed session has occurred pursuant to a
unanimous consent agreement.98
At any time following the closing arguments, but prior to the vote on the first article of
impeachment, the Senate may choose to consider any motions deferred to the full Senate by the
committee or renewed by either the House managers or the impeached judge. During the trial of
Judge Nixon, the Senate chose to hear such motions after deliberation in closed session, including
motions to dismiss the third article of impeachment and for a trial by the full Senate.99
(...continued)
spoke to motions filed by Judge Nixon, among other things. Proceedings in the Senate, “Impeachment of Judge Walter
L. Nixon, Jr.,” Cong. Rec. , 101st Cong., 1st sess., November 1, 1989, pp. S14493-S14498.
93 See, for example, Senator Herb Kohl’s question regarding the structure of the third article of impeachment against
Judge Walter L. Nixon, Jr. Proceedings in the Senate, “Impeachment of Judge Walter L. Nixon, Jr.,” Cong. Rec., 101st
Cong., 1st sess., November 1, 1989, pp. S14513.
94 See, for example, a question submitted by Senator Joseph Lieberman to the House managers following closing
arguments in the Senate’s trial of Judge Alcee Hastings. Senator Lieberman asked, “Assuming for the sake of argument
that the Senate votes to acquit Judge Hastings on Articles I to XVI, must the Senate also necessarily vote to acquit him
on Article XVII? If no, what standard of proof do you urge us to apply in judging Article XVII, the ‘omnibus’ article,
and why should it be different or yield a different result than for Articles I to XVI?” Proceedings in the Senate,
“Impeachment of Judge Alcee L. Hastings,” Cong. Rec., 101st Cong., 1st sess., October 18, 1989, p. S13636.
95 See, for example, the questions submitted by Senators Harry Reid and Steven Symms to the House managers in the
Senate proceedings against Judge Walter L. Nixon, Jr. Proceedings in the Senate, “Impeachment of Judge Walter L.
Nixon, Jr.,” Cong. Rec., 101st Cong., 1st sess., November 1, 1989, p. S14514.
96 See, for example, the question posed by Senator Carl Levin to the House managers. Ibid.
97 The rule continues, “A motion to close the doors may be acted upon without objection, or, if objection is heard, the
motion shall be voted on without debate by the yeas and nays, which shall be entered on the record.” See Rule XX,
Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.
98 In two of the past three previous impeachment trials, a Senator offered a unanimous consent request to deliberate in
closed session the day prior to Senate deliberations. Proceedings in the Senate, “Court of Impeachment Schedule [in the
trial of Harry E. Claiborne],” Cong. Rec., 99th Congress, 2nd sess., October 6, 1986, pp. 29083-29084; Proceedings in
the Senate, “Impeachment of Judge Alcee L. Hastings,” Cong. Rec., 101st Cong., 1st sess., October 18. 1989, p. S13638.
During Judge Nixon’s trial, however, the unanimous consent request to conduct deliberations in closed session was
submitted a week before the trial began. Proceedings in the Senate, “Unanimous Consent Agreement – Impeachment
Proceedings Against Judge Walter L. Nixon, Jr.,” Cong. Rec., 101st Congress, 1st sess., October 26, 1989, p. S14202.
99 See, e.g., “Supplemental Motion for Full and Fair Impeachment Trial Before the Entire Senate of the United States,
or in the Alternative, Dismissal,” Nixon Impeachment, Pt. 1, pp. 56-63.
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Judgment by the Full Senate
Following deliberation and consideration of any remaining motions, the full Senate votes on the
articles of impeachment. The Senate must vote separately on each article,100 a Senate practice
since the first impeachment of a federal judge in 1804. Additionally, according to Senate rules,
articles of impeachment are not divisible.101 Additionally, Rule XXIII requires that “voting [on
the articles of impeachment] shall be continued until voting has been completed on all articles of
impeachment.” After this process begins, the Senate cannot adjourn for more than one day. The
Senate may, however, adjourn sine die.102
Unlike deliberation by the full Senate, nothing in the Rules of Procedure and Practice in the
Senate When Sitting on Impeachment Trials allows votes to be taken in closed session. To the
contrary, Rule XX and Rule XXIV indicate that the only time the Senate is permitted to proceed
in closed session is during deliberation. In each of the 11 full impeachment trials of federal judges
in which votes were taken on articles of impeachment, the Senate voted in open session. Notably,
during the impeachment trial of Judge Robert Archbald in 1913, after a Senator proposed a
motion to proceed in closed session while voting on articles of impeachment, the Presiding
Officer explained, “There will be no vote taken in closed session; there cannot be.”103
Voting on each article is done by rollcall. The Presiding Officer first states the question, and each
Senator stands at his seat and votes “guilty” or “not guilty.”104 A judge is deemed to have been
convicted in an impeachment trial if two-thirds of the Members present approve at least one
article of impeachment. Motions to reconsider any vote on an article of impeachment are not
considered to be in order.105
Judges convicted of impeachable offenses are subject only to “removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”106
Historically, the Senate has voted on whether the judge should be removed or removed and
disqualified following separate votes on the articles of impeachment.107 Since the trial of Judge
Halsted Ritter in 1936, however, the penalty of removal has been considered to flow from
100 Rule XXIII, Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.
101 Rule XXIII, Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials. Note, however,
that in one instance during the trial of Judge West Humphreys, an article of impeachment was divided into three
sections at the suggestion of a Senator. One of these sections was rejected by a 12-14 vote. Hinds’ Precedents, vol. III,
§2397, p. 818.
102 Sine die literally translates to “without day.” Thus the expression is used to indicate the final adjournment of a
chamber at the end of a Congress. U.S. Senate, “Glossary: ‘adjournment sine die,’” http://www.senate.gov/reference/
glossary_term/adjournment_sine_die.htm.
103 Cannon’s Precedents, §512, p. 707. Voting on the articles of impeachment also took place in open session in the
impeachment trials of President Andrew Johnson, former Secretary of War William Belknap, and President William
Clinton. In the impeachment trial of Senator William Blount, the impeachment was dismissed upon a determination by
the Senate that it lacked jurisdiction.
104 Rule XXIII, Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.
105 Rule XXIII, Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.
106 U.S. Constitution, Art. I, Sec. 3, Cl. 7.
107 Hinds’ Precedents, vol. III, §§2341, 2397, pp. 710, 819; Cannon’s Precedents, vol. VI, §512, p. 708.
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conviction on at least one article of impeachment. Thus, in modern practice, a separate vote on
removal of the convicted judge from office is not necessary.108
If the Senate considers a judgment of disqualification of a convicted judge from holding future
federal office, a separate vote is necessary, however. 109 The Senate’s decision to remove a judge
does not imply a decision to disqualify that judge from holding future office. Unlike conviction
on an article of impeachment, disqualification requires only a majority vote.110
Of the 11 impeached judges tried on the merits by the Senate, 7 have been convicted of at least
one article against them. Senators proposed, in three instances, to additionally disqualify the
convicted judge from holding a position of public trust in the future; the Senate voted
affirmatively in two of these instances.111 In the last three of these judicial impeachments in
which a conviction occurred, the Presiding Officer immediately ordered the judgment to be
entered following the vote on the final article of impeachment without the Senate having
considered whether disqualification would be appropriate.112 Finally, Rule XXIII provides, “Upon
pronouncing judgment, a certified copy of such judgment shall be deposited in the office of the
Secretary of State.”
Length of Senate Impeachment Trials
Since 1789, the House of Representatives has impeached 15 judges. Of the 15 judges impeached
by the House, the Senate has completed trials of 11. Three judges resigned after the Senate had
organized for trial but before votes could be taken on the articles of impeachment.113 A fourth,
Judge Porteous, was impeached on March 11, 2010, and is currently being tried in the Senate.
108 During the discussion of whether submitting two orders – one for removal, one for disqualification – was necessary,
the Presiding Officer ruled that “no vote was required on the order, removal automatically following conviction for
high crimes and misdemeanors under section 4 of article II of the U.S. Constitution.” Deschler’s Precedents, Ch. 14,
§18, pp. 2244-2245.
109 See, for example, the discussion of the whether a motion to both remove and disqualify was a “double question”
following the conviction of Judge West Humphreys in 1862. If such a motion were determined to be a “double
question,” then disqualification would be deemed to flow automatically from removal. The Senate voted, however, that
a motion to remove and disqualify was a divisible proposition. In this case, separate votes were taken on the questions
of removal and disqualification. The Senate voted unanimously to remove and disqualify Judge Humphreys. Hinds’
Precedents, vol. III, §2397, pp. 819-820.
110 Procedure and Guidelines for Impeachment Trials in the United States Senate, p. 81.
111 The Senate voted to disqualify Judge West Humphries (1862) and Judge Robert Archbald (1912) from holding
office in the future. The lone instance in which a resolution to disqualify a convicted judge failed occurred in 1936,
following the conviction of Judge Halsted Ritter, on a unanimous (0-76) vote.
112 After two-thirds of the Senate found Judge Nixon guilty of the first two articles of impeachment against him, the
Presiding Officer directed that the following judgment be entered: “The Senate having tried Walter L. Nixon, Jr., U.S.
district judge for the Southern District of Mississippi, upon three articles of impeachment exhibited against him by the
House of Representative, and two-thirds of the Senators present having found him guilty of the charges contained in
articles I and II of the articles of impeachment, it is, therefore, ordered and adjudged that the said Walter L. Nixon, Jr.,
be, and he is hereby, removed from office.” No Senator proposed a resolution or order that Nixon also be disqualified.
Proceedings in the Senate, “Impeachment of Judge Walter L. Nixon, Jr.,” Cong. Rec., 101st Cong., 1st sess., November
3, 1989, p. S14636.
113 These judges were district court judges Mark Delahay (1873, Kansas), George English (1925, Eastern District of
Illinois), and Samuel B. Kent (2009, Southern District of Texas).
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The length of the 11 impeachment trials completed against judges by the Senate has varied widely
over time (see Table 1). The duration of a Senate impeachment trial is calculated as the number
of days elapsed from the first time the Senate organized as a Court of Impeachment to receive the
House managers to the date of the Senate vote on the final article of impeachment, including any
days the Senate may have been in recess.
Since the first such trial in 1804, the shortest completed trial has been that of Charles Swayne,
district court judge for the Northern District of Florida, which took 34 days, or a little more than a
month. The longest, that of Alcee Hastings, district court judge for the Southern District of
Florida, lasted 437 days, or roughly 14 months and 11 days. Unlike Judge Swayne, Judge
Hastings’s trial included an impeachment trial committee authorized under Rule IX of the Rules
of Procedure and Practice in the Senate When Sitting on Impeachment Trials. Both Judge
Hastings and Judge Nixon challenged the use of the Rule XI committee as inconsistent with the
constitutional provision that the Senate has the “sole Power to try all Impeachments.”114 Judge
Hastings contended in the Senate and in federal court that “impeachment hearing [by the Rule XI
committee] is procedurally flawed.” The use of the Rule XI committee, Judge Hastings argued,
would deny him due process and result in a violation of Article 1, Section 3, of the U.S.
Constitution.115 Although the Supreme Court ultimately ruled in the Nixon case that the
constitutional language pertaining to the Senate trial foreclosed a court challenge to the
procedures that could be used by the Senate,116 legal challenges to the use of a Rule XI committee
resulted in a delay of the Hastings impeachment trial.117
The average length of all Senate impeachment trials is 133 days, or about four months and two
weeks. The average, or mean, is calculated as the sum of the duration of each trial, divided by the
number of trials. The average length of Senate trials may portray an inaccurate picture of the
majority of Senate trials, however, if one or a few trials are significantly shorter or longer than the
majority of trials. In this case, the average trial duration may be skewed by the fact that Judge
Hastings’s trial (437 days) lasted so much longer than any other trial conducted by the Senate.
The next longest trial was that of Judge James Peck, whose trial lasted 272 days. Although this
trial lasted a little more than nine months, Judge Hastings’s trial was 60.7% longer than Judge
Peck’s trial.
An alternate indicator of the length of Senate trials, the median, is calculated as the midpoint of a
list of trial lengths that have been ordered by the number of days elapsed from the start of the trial
to the final vote. For example, in a list of the 11 full impeachment trials of federal judges in order
by trial length, the number of days elapsed during the sixth trial on that list would be the median.
Given that Judge Hastings’s trial was so much longer than the others, the median trial duration of
76 days may be a more accurate indicator of the duration of the majority of Senate impeachment
trials to date.
114 See Nixon v. United States, 506 U.S. 224 (1993), affirming 938 F.2d 239 (D.C. Cir. 1991), affirming 744 F. Supp. 9
(D.D.C. 1990); Hastings v. United States, 802 F. Supp. 490 (D.D.C. 1992), vacated and remanded on court’s own
motion, 988 F.2d 1280 (Table Case), 300 U.S. App. D.C. 322, 1993 U.S. App. LEXIS 11592 (1993), 1993 WL 81273,
dismissed, 837 F. Supp. 3 (D.D.C. 1993). See also, Hastings v. United States Senate, 716 F. Supp. 38 (D.D.C. 1989),
affirmed, 887 F.2d 332 (Table Case), 281 U.S. App. D.C. 104, 1989 WL 122685 (D.C. Cir. 1989); Nixon v. United
States Senate, 887 F.2d 332 (D.C. Cir. 1989) (Table Case), 281 U.S. App. D.C. 104 (D.C. Cir. 1989).
115 Hastings v. United States Senate, 716 F. Supp. 38, 39 (D.D.C. 1989).
116 Nixon v. United States, 506 U.S. 224 (1993).
117 For a more extensive discussion of court rulings on this issue, see Bazan and Henning, Impeachment, pp. 9-12.
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Table 1. Impeached Judges Tried by the Senate
In Chronological Order, with Duration in Days, 1789-Present
No. Judge
Court
Impeachment
Start of
Votes on
Triala
Articles
Outcomeb
Trial
Durationc
1
John Pickering
Dist. of NH
3/3/1803
1/4/1804
3/12/1804
Convicted
68
2
Samuel Chase
Supreme Court
12/3/1804
12/7/1804
3/1/1805
Acquitted
84
3
James Peck
Dist. of MO
4/24/1830
5/4/1830
1/31/1831
Acquitted
272
4
West Humphreys
W., E., and Mid.
5/6/1862 5/22/1862
6/26/1862
Convictedd 35
Dist. of TN
5
Charles Swayne
N. Dist. of FL
12/13/1904
1/24/1905
2/27/1905
Acquitted
34
6 Robert
Archbald
Commerce
Court
7/11/1912 7/15/1912
1/13/1913
Convictedd 182
7
Harold Louderback
N. Dist. of CA
2/24/1933
3/9/1933
5/24/1933
Acquitted
76
8
Halsted Ritter
S. Dist. of FL
3/2/1936
3/10/1936
4/17/1936
Convicted
38
9 Harry
Claibornee
Dist. of NV
7/22/1986
8/6/1986
10/9/1986
Convicted
64
10 Alcee
Hastingse
S. Dist. of FL
8/3/1988
8/9/1988
10/20/1989
Convicted
437
11 Walter
Nixone
S. Dist. of MS
5/10/1989
5/11/1989
11/3/1989
Convicted
176
Source: CRS analysis of data found in Hinds’ Precedents, vol. III, §§ 2317-2397; Cannon’s Precedents, vol. IV, §§
498-524; Deschler’s Precedents, vol. III, §§ 17-18; and Legislative Information System (LIS) database.
Notes: Of the seven judges convicted, all were removed from their positions. Two were also disqualified from
holding future office.
a. The beginning of the Senate trial is counted as the day on which the Senate first formed itself as a Court of
Impeachment to hear the articles presented by House managers.
b. For an impeached judge to have been convicted, two-thirds of the Senate must have voted “guilty” on at
least one article of impeachment.
c. Trial duration is calculated as the number of days elapsed from the beginning of the Senate trial to the
Senate’s final vote on the articles of impeachment and disqualification, if applicable, including any days that
the Senate may have been in recess.
d. This judge was also disqualified from holding future office.
e. The impeachment trial of this judge included a Rule XI Committee.
As discussed above, prior to the trial of Judge Claiborne in 1986, the Senate organized as a Court
of Impeachment in which all Senators were charged with hearing motions, evidence, and
arguments by the impeached judge (or his counsel) and the House managers. In other words,
eight (72.7%) of the 11 full impeachment trials conducted by the Senate were tried before the full
Senate.
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Table 2. Summary of Senate Trial Durations
In Days, 1789-Present
Senate Trial Conducted by:
Mean
Median
Minimum
Maximum
Full Senate (N=8)
99
72
34
272
Rule XI Committee (N=3)
226
176
64
437
All Outcomes (N=11)
133
76
34
437
Source: CRS analysis of data found in Hinds’ Precedents, vol. III, §§ 2317-2397; Cannon’s Precedents, vol. IV, §§
498-524; Deschler’s Precedents, vol. III, §§ 17-18; and Legislative Information System (LIS) database.
Notes: The mean, or average, is calculated as the sum of the duration of each trial, divided by the number of
trials. An alternate indicator, the median, is calculated as the midpoint of a list of trial durations that have been
ordered by length. For example, in a list of 11 trials that have been ordered by trial duration, the sixth trial on
that list would be the median.
On average, as illustrated in Table 2, the three trials conducted by a Rule XI committee lasted
significantly longer than trials conducted by the full Senate. This may be a function of several
factors. First, as discussed above, the use of the Rule XI committee was challenged by Judge
Hastings not only before the Senate, but also in federal court after the Senate had organized for
trial, and again after completion of his impeachment trial. Judge Nixon also challenged the Rule
XI procedure in federal court both during and after his impeachment trial. Second, the use of Rule
XI committees freed the full Senate from having to stop legislative business to conduct the trial.
On its face, it might appear that such an innovation would reduce the duration of Senate trials.
However, one might argue that because a trial conducted by a Rule XI committee is less obtrusive
and presents less of a hindrance to legislative business, it is permitted to last longer than if the
business of the Senate had to be stopped to conduct the trial.
Finally, the trials of the 1980s were the first in which the Senate was considering articles of
impeachment against a judge who had been subject to a criminal proceeding in a federal court.
These prior proceedings added an extra layer of complexity to the Senate trial by presenting
thorny constitutional and procedural questions about how to consider evidence or testimony
collected during the course of criminal proceedings, whether the Senate’s proceedings violated
Fifth Amendment guarantees of due process and against double jeopardy, and to what extent a
conviction or an acquittal on a criminal charge should be weighed in determining the guilt of the
judge with respect to the articles of impeachment.
Concluding Observations
Judicial impeachment trials in the Senate are rare, in that only 11 full trials have been completed
over the 221-year history of the Senate, and unique, in that each trial presents a wholly complex
and individual set of facts and circumstances for the Senate’s consideration. Thus, although this
report may provide guidance as to the general structure of the process, each trial presents new
procedural, factual, and evidentiary questions that must be resolved by either the full Senate,
acting as a Court of Impeachment, or the Rule XI committee charged with building a trial record.
Since the first judicial impeachment trial in 1804, the largest change to occur in the Senate’s
proceedings is the advent of the impeachment trial committee, otherwise known as the Rule XI
committee. This committee frees the full Senate from a lengthy impeachment trial, during which
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legislative business is necessarily placed on hold. Although judges tried by the Senate under this
system have challenged its constitutionality, the Supreme Court has upheld the constitutional
authority of the Senate to structure its proceedings.
Over the past three impeachment trials of judges, members of the Rule XI committees have
established procedures and practices designed to create fair proceedings that accommodate the
requests of both House managers and the impeached judge. As a by-product of the Senate’s
efforts to ensure fairness, the role of outside counsel for both the House managers and the
impeached judge increased during the 1980s. Prior to the Claiborne impeachment trial in 1986,
outside counsel played a minimal role in impeachment trial proceedings. During impeachment
trials in the 1980s, however, one scholar has observed that
counsel performed much of the bread and butter litigation work, including the conduct of
depositions, the drafting of briefs and motions (subject to the approval of the managers), the
interviewing of witnesses and in some cases, even the cross examination of witnesses during
the trial itself. The managers’ presence may have added a degree of formality and credibility
to the Senate trial forum, but, for most portions of the 1980s Senate trial committee
proceedings, the managers were primarily observers.118
Given the establishment of various precedents and rules discussed in this report, as well as the
established constitutionality of the Rule XI committee itself, it is possible that future Senate trials
utilizing Rule XI trials may be of shorter duration than those occurring in the 1980s. As the first
full trial occurring since that of Judge Nixon in 1989, the Rule XI committee formed to try Judge
Porteous has the opportunity to further refine and define the practices and procedures employed
in carrying out this important constitutional responsibility.
118 Grimes, The Role of the United States House of Representatives in Proceedings to Impeach and Remove Federal
Judges, p. 65.
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Appendix A. H. Res. 1031, Articles of Impeachment
Against Judge G. Thomas Porteous
H.RES.1031
Resolved, That G. Thomas Porteous, Jr., a judge of the United States District Court for the
Eastern District of Louisiana, is impeached for high crimes and misdemeanors, and that...
(Received in Senate from House)
HRES 1031 RDS
111th CONGRESS
2d Session
H. RES. 1031
IN THE SENATE OF THE UNITED STATES
March 17, 2010
Received
RESOLUTION
Impeaching G. Thomas Porteous, Jr., judge of the United States District Court for the Eastern
District of Louisiana, for high crimes and misdemeanors.
Resolved, That G. Thomas Porteous, Jr., a judge of the United States District Court for the
Eastern District of Louisiana, is impeached for high crimes and misdemeanors, and that
the following articles of impeachment be exhibited to the Senate:
Articles of impeachment exhibited by the House of Representatives of the United States
of America in the name of itself and all of the people of the United States of America,
against G. Thomas Porteous, Jr., a judge in the United States District Court for the Eastern
District of Louisiana, in maintenance and support of its impeachment against him for
high crimes and misdemeanors.
Article I
G. Thomas Porteous, Jr., while a Federal judge of the United States District Court for the
Eastern District of Louisiana, engaged in a pattern of conduct that is incompatible with
the trust and confidence placed in him as a Federal judge, as follows:
Judge Porteous, while presiding as a United States district judge in Lifemark Hospitals of
Louisiana, Inc. v. Liljeberg Enterprises, denied a motion to recuse himself from the case,
despite the fact that he had a corrupt financial relationship with the law firm of Amato &
Creely, P.C. which had entered the case to represent Liljeberg. In denying the motion to
recuse, and in contravention of clear canons of judicial ethics, Judge Porteous failed to
disclose that beginning in or about the late 1980s while he was a State court judge in the
24th Judicial District Court in the State of Louisiana, he engaged in a corrupt scheme with
attorneys, Jacob Amato, Jr., and Robert Creely, whereby Judge Porteous appointed
Amato’s law partner as a “curator” in hundreds of cases and thereafter requested and
accepted from Amato & Creely a portion of the curatorship fees which had been paid to
the firm. During the period of this scheme, the fees received by Amato & Creely
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amounted to approximately $40,000, and the amounts paid by Amato & Creely to Judge
Porteous amounted to approximately $20,000.
Judge Porteous also made intentionally misleading statements at the recusal hearing
intended to minimize the extent of his personal relationship with the two attorneys. In so
doing, and in failing to disclose to Lifemark and its counsel the true circumstances of his
relationship with the Amato & Creely law firm, Judge Porteous deprived the Fifth Circuit
Court of Appeals of critical information for its review of a petition for a writ of
mandamus, which sought to overrule Judge Porteous’s denial of the recusal motion. His
conduct deprived the parties and the public of the right to the honest services of his
office.
Judge Porteous also engaged in corrupt conduct after the Lifemark v. Liljeberg bench
trial, and while he had the case under advisement, in that he solicited and accepted things
of value from both Amato and his law partner Creely, including a payment of thousands
of dollars in cash. Thereafter, and without disclosing his corrupt relationship with the
attorneys of Amato & Creely PLC or his receipt from them of cash and other things of
value, Judge Porteous ruled in favor of their client, Liljeberg.
By virtue of this corrupt relationship and his conduct as a Federal judge, Judge Porteous
brought his court into scandal and disrepute, prejudiced public respect for, and
confidence in, the Federal judiciary, and demonstrated that he is unfit for the office of
Federal judge.
Wherefore, Judge G. Thomas Porteous, Jr., is guilty of high crimes and misdemeanors
and should be removed from office.
Article II
G. Thomas Porteous, Jr., engaged in a longstanding pattern of corrupt conduct that
demonstrates his unfitness to serve as a United States District Court Judge. That conduct
included the following: Beginning in or about the late 1980s while he was a State court
judge in the 24th Judicial District Court in the State of Louisiana, and continuing while he
was a Federal judge in the United States District Court for the Eastern District of
Louisiana, Judge Porteous engaged in a corrupt relationship with bail bondsman Louis M.
Marcotte, III, and his sister Lori Marcotte. As part of this corrupt relationship, Judge
Porteous solicited and accepted numerous things of value, including meals, trips, home
repairs, and car repairs, for his personal use and benefit, while at the same time taking
official actions that benefitted the Marcottes. These official actions by Judge Porteous
included, while on the State bench, setting, reducing, and splitting bonds as requested by
the Marcottes, and improperly setting aside or expunging felony convictions for two
Marcotte employees (in one case after Judge Porteous had been confirmed by the Senate
but before being sworn in as a Federal judge). In addition, both while on the State bench
and on the Federal bench, Judge Porteous used the power and prestige of his office to
assist the Marcottes in forming relationships with State judicial officers and individuals
important to the Marcottes’ business. As Judge Porteous well knew and understood, Louis
Marcotte also made false statements to the Federal Bureau of Investigation in an effort to
assist Judge Porteous in being appointed to the Federal bench.
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Accordingly, Judge G. Thomas Porteous, Jr., has engaged in conduct so utterly lacking in
honesty and integrity that he is guilty of high crimes and misdemeanors, is unfit to hold
the office of Federal judge, and should be removed from office.
Article III
Beginning in or about March 2001 and continuing through about July 2004, while a
Federal judge in the United States District Court for the Eastern District of Louisiana, G.
Thomas Porteous, Jr., engaged in a pattern of conduct inconsistent with the trust and
confidence placed in him as a Federal judge by knowingly and intentionally making
material false statements and representations under penalty of perjury related to his
personal bankruptcy filing and by repeatedly violating a court order in his bankruptcy
case. Judge Porteous did so by—
(1) using a false name and a post office box address to conceal his identity as the
debtor in the case;
(2) concealing assets;
(3) concealing preferential payments to certain creditors;
(4) concealing gambling losses and other gambling debts; and
(5) incurring new debts while the case was pending, in violation of the
bankruptcy court’s order.
In doing so, Judge Porteous brought his court into scandal and disrepute, prejudiced
public respect for and confidence in the Federal judiciary, and demonstrated that he is
unfit for the office of Federal judge.
Wherefore, Judge G. Thomas Porteous, Jr., is guilty of high crimes and misdemeanors
and should be removed from office.
Article IV
In 1994, in connection with his nomination to be a judge of the United States District
Court for the Eastern District of Louisiana, G. Thomas Porteous, Jr., knowingly made
material false statements about his past to both the United States Senate and to the
Federal Bureau of Investigation in order to obtain the office of United States District
Court Judge. These false statements included the following:
(1) On his Supplemental SF-86, Judge Porteous was asked if there was anything
in his personal life that could be used by someone to coerce or blackmail him, or
if there was anything in his life that could cause an embarrassment to Judge
Porteous or the President if publicly known. Judge Porteous answered `no’ to this
question and signed the form under the warning that a false statement was
punishable by law.
(2) During his background check, Judge Porteous falsely told the Federal Bureau
of Investigation on two separate occasions that he was not concealing any
activity or conduct that could be used to influence, pressure, coerce, or
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compromise him in any way or that would impact negatively on his character,
reputation, judgment, or discretion.
(3) On the Senate Judiciary Committee’s “Questionnaire for Judicial Nominees,”
Judge Porteous was asked whether any unfavorable information existed that
could affect his nomination. Judge Porteous answered that, to the best of his
knowledge, he did `not know of any unfavorable information that may affect
[his] nomination’. Judge Porteous signed that questionnaire by swearing that `the
information provided in this statement is, to the best of my knowledge, true and
accurate’.
However, in truth and in fact, as Judge Porteous then well knew, each of these answers
was materially false because Judge Porteous had engaged in a corrupt relationship with
the law firm Amato & Creely, whereby Judge Porteous appointed Creely as a “curator” in
hundreds of cases and thereafter requested and accepted from Amato & Creely a portion
of the curatorship fees which had been paid to the firm and also had engaged in a corrupt
relationship with Louis and Lori Marcotte, whereby Judge Porteous solicited and
accepted numerous things of value, including meals, trips, home repairs, and car repairs,
for his personal use and benefit, while at the same time taking official actions that
benefitted the Marcottes. As Judge Porteous well knew and understood, Louis Marcotte
also made false statements to the Federal Bureau of Investigation in an effort to assist
Judge Porteous in being appointed to the Federal bench. Judge Porteous’s failure to
disclose these corrupt relationships deprived the United States Senate and the public of
information that would have had a material impact on his confirmation.
Wherefore, Judge G. Thomas Porteous, Jr., is guilty of high crimes and misdemeanors
and should be removed from office.
NANCY PELOSI,
Speaker of the House of Representatives.
Attest:
LORRAINE C. MILLER,
Clerk.
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Appendix B. Chart of the Senate Impeachment Trial
Process
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Author Contact Information
Susan Navarro Smelcer
Analyst on the Federal Judiciary
ssmelcer@crs.loc.gov, 7-8958
Acknowledgments
Betsy Palmer, CRS Analyst on the Congress and Legislative Process, and Elizabeth Bazan, CRS
Legislative Attorney, assisted in the preparation of this report.
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