Porteous v. Baron

• Decision Date: 02 August 2010
• Docket Number: Civil Case No. 09-2131(RJL)
• Parties: G. Thomas PORTEOUS, Jr., United States District Judge for the Eastern District of Louisiana, Plaintiff, v. Alan I. BARON, Special Counsel, Impeachment Task Force, Committee on the Judiciary, United States House of Representatives, et al., Defendants.
• Court: U.S. District Court — District of Columbia

729 F.Supp.2d 158

G. Thomas PORTEOUS, Jr., United States District Judge for the Eastern District of Louisiana, Plaintiff,

v.Alan I. BARON, Special Counsel, Impeachment Task Force, Committee on the Judiciary, United States House of Representatives, et al., Defendants.

Civil Case No. 09-2131(RJL).

United States District Court, District of Columbia.

Aug. 2, 2010.

Michael A. Hass, Chelsea Selleck Rice, Richard William Westling, Ober, Kaler, Grimes & Shriver, Washington, DC, for Plaintiff.

Ariel B. Waldman, Irvin B. Nathan, U.S. House of Representatives, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

G. Thomas Porteous, Jr. ("Judge Porteous"), a suspended federal district judge, seeks to enjoin three defendants-each of whom serves as counsel to the Impeachment Task Force working on behalf of the Judiciary Committee of the United States House of Representatives-from using sworn testimony provided by Judge Porteous under a grant of immunity. Judge Porteous claims that the use of that immunized testimony by the defendants to prosecute both his impeachment in the House and his subsequent trial in the Senate violates his Fifth Amendment right against self-incrimination. Not surprisingly, the defendants have moved to dismiss. Although they oppose the merits of Judge Porteous's claim on the ground that his Fifth Amendment rights are not at stake in an impeachment proceeding, they argue nevertheless that the Court cannot reach the merits because, as Congressional aides, they are immune from suit under the Constitution's Speech or Debate Clause.

By bringing this lawsuit, Judge Porteous, in effect, invites a direct confrontation between the Judicial and Legislative Branches of our government. He calls upon our Court to exercise the extraordinary power of barring key Congressional aides from using certain evidence against him in the course of an ongoing Congressional proceeding. Fortunately, the confrontation he seeks is to no avail. Because I agree that the Speech and Debate Clause bars this suit, the defendants' Motion to Dismiss [# 7] is GRANTED, and Judge Porteous's Motion for a Preliminary Injunction [# 2] is DENIED.

BACKGROUND

The seeds that gave rise to this lawsuit were sowed almost ten years ago when the Department of Justice launched a criminal investigation of Judge Porteous while he was sitting as a district judge on the United States District Court for the Eastern District of Louisiana. Although the Department concluded that there was "evidence that might warrant charging Judge Porteous with violations of criminal law relating to judicial corruption," it ultimately decided, for a number of reasons, not to seek criminal charges. (Defs.' Opp'n to Mot. for TRO and PI and Mem. in Support of Mot. to Dismiss, Ex. 3 [# 5-2] at 1). Instead, the Department submitted a complaint to the Chief Judge of the United States Court of Appeals for the Fifth Circuit ("the Chief Judge"). In its complaint, the Department alleged that Judge Porteous committed numerous acts of judicial misconduct, such as soliciting and accepting cash and other things of value from litigants, attorneys, bail bondsmen, and other interested parties with matters before him, as well as making false statements on financial disclosure forms and court filings in connection with his personal bankruptcy. ( Id. at 3-21). The complaint further explained that, in light of the "evidence of pervasive misconduct committed by Judge Porteous," the Department was referring the matter to the Fifth Circuit "for possible disciplinary proceedings and, if warranted, certification of the allegations to Congress for impeachment." ( Id. at 2).

Upon receiving the complaint, the Chief Judge authorized a Special Investigatory Committee ("the Committee") comprised of three judges from the Fifth Circuit to investigate the allegations leveled against Judge Porteous. ( Id., Ex. 5 [# 5-3] at 2). With the assistance of its own investigator,the Committee gathered evidence and conducted a two-day adversarial hearing in which a number of witnesses testified. ( Id. at 4-5, 12-13). Among the witnesses subpoenaed was Judge Porteous himself. ( Id. at 12). Judge Porteous invoked his Fifth Amendment rights and refused to answer any questions put to him regarding these matters, but the Chief Judge compelled him to testify pursuant to a testimonial use Immunity Order. ( Id., Ex. 4 [# 5-2] ). The Order, which was entered by the Chief Judge in accordance with 18 U.S.C. §§ 6002-6003,¹ specifies that "no testimony or other information that he provides under this order and no information directly or indirectly derived from such testimony or other information shall be used against him in any criminal case." ( Id. at 1). Judge Porteous did not contest the validity of the Immunity Order when it was issued, nor does he do so now.

Based on the evidence gleaned from its investigation, the Committee issued a report to the Judicial Council of the Fifth Circuit ("the Judicial Council") finding that Judge Porteous had committed judicial misconduct that might justify impeachment. ( Id., Ex. 5 [# 5-3] at 65). After reviewing the report, the Judicial Council adopted the Committee's findings by a majority vote and forwarded the entire record to the Judicial Conference of the United States ("the Judicial Conference"). ( Id., Ex. 6 [# 5-3] at 4-5). In doing so, the Judicial Council certified its conclusion that Judge Porteous engaged in conduct "which might constitute one or more grounds for impeachment under Article II of the Constitution." ( Id.).

The Judicial Conference, in turn, reviewed the report and accompanying materials and determined that "consideration of impeachment of [Judge Porteous] may be warranted." ( Id., Ex. 2 [# 5-2] at 2). The entire record of the proceedings in both the Judicial Council and the Judicial Conference, which included Judge Porteous's immunized testimony, was thereafter transmitted to the House for its review. ( Id.; Id., Ex. 1 [# 5-2] ¶¶ 9-10). After the House officially opened its impeachment inquiry, the matter was referred to its Judiciary Committee, which appointed a bi-partisan Impeachment Task Force comprised of twelve Committee Members to spearhead the inquiry. ( Id., Ex. 1 [# 5-2] ¶¶ 12-15). To assist with the investigation, the House Judiciary Committee hired Alan I. Baron, a highly seasoned counsel from the Seyfarth Shaw LLP law firm, as its special counsel. ( Id. ¶ 16). Judiciary Committee staff attorneys, Mark Dubester and Harold Damelin, were also assigned to provide legal support. ( Id. ¶ 17).

On November 13, 2009, just four days before the anticipated commencement of hearings by the Impeachment Task Force, Judge Porteous filed a single-count Complaint [# 1], accompanied by a Motion for a Temporary Restraining Order and Preliminary Injunction [# 2], seeking to prevent any further use of his immunized testimony. Rather than naming the Members of Congress on the Impeachment Task Force, Judge Porteous merely named the three counsel who are aiding the Task Force in its investigation: Baron, Dubester, and Damelin (collectively, "the defendants").² Judge Porteous's sole claim isthat the "direct and indirect use of [his] immunized testimony to pursue his impeachment and removal from office violates [his] right not to be compelled to be a witness against himself under the Fifth Amendment." (Compl. [# 1] ¶ 28). He seeks: (1) a declaratory judgment that the use of the immunized testimony is a violation of his constitutional rights, (2) an injunction barring the defendants from "making any use of the immunized testimony ... in connection with its impeachment inquiry," and (3) a hearing "to determine the extent of any prior use of the immunized testimony in order to fashion an appropriate form of injunctive relief." ( Id. at 7). The defendants promptly opposed Judge Porteous's motion and filed their own Motion to Dismiss [# 7] on November 13, 2009.

I held a hearing a few days later, at the end of which I denied Judge Porteous's request for a temporary restraining order. Soon thereafter, I invited the defendants to file a supplemental memorandum in support of their Motion to Dismiss. The defendants did so, and the briefing on that motion became ripe in January 2010.

On March 11, 2010, the House of Representatives adopted four Articles of Impeachment against Judge Porteous. ( See Notice of Filing of Congressional Record [# 14] ). In light of that development, I ordered the parties to show cause why Judge Porteous's suit should not be dismissed as moot. (April 5, 2010 Order [# 15] ). Although the defendants acknowledged that there was a colorable argument that the case was moot, they did not contend that it should be decided on that basis. For his part, Judge Porteous continues to assert that his claim remains viable given defense counsel's earlier representation to this Court that the defendants "will likely serve as staff for the Managers, all of whom will be Members of the House of Representatives, of the impeachment articles at the upcoming Senate trial." (Porteous's Resp. to Court's Order to Show Cause [# 16] at 2-3 (internal quotation marks omitted)).

However, because I have concluded that I lack jurisdiction by virtue of the Speech or Debate Clause, I need not determine whether the case is moot. ³ Indeed, because there is "no mandatory 'sequencing of jurisdictional issues,' " a federal court has considerable "leeway 'to choose among threshold grounds for denying audience to a case on the merits.' " Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). Exercising that leeway here, I choose to reserve judgmenton the mootness question and to dismiss the case instead for the following reasons.

DISCUSSION

The defendants move to dismiss for lack of jurisdiction pursuant to Federal Rule...