OPINION — Once upon a time, there was a Senate impeachment trial, where Rep. Adam Schiff was the lead House impeachment manager, courtly law professor Jonathan Turley made an impassioned argument against impeachment, multiple Senate witnesses testified, and the verdict was not only bipartisan, it was a unanimous decision. The most unbelievable part? It really happened, and it wasn’t very long ago.
The year was 2010, and the case was that of Thomas Porteous Jr., a berry-faced and bulbous federal judge from Louisiana, who had the misfortune of being a man who looked as guilty as he probably was. Porteous had been appointed to the bench by President Bill Clinton in 1994, but by 2009, he found himself squarely in the sights of House and Senate Democrats, many of whom had supported his appointment, after a federal grand jury found evidence of bribery and corruption in Porteous’ court, including possible quid pro quos — sound familiar?
With Speaker Nancy Pelosi’s announcement that the House will send articles of impeachment to the Senate imminently, it’s instructive to look at how a Senate trial would work outside of the partisan stew we’re all boiling in right now. How should it work? What would it look like if the questions of managers, witnesses, process and propriety didn’t come down to overnight polling and a thumbs-up-or-down on “Fox & Friends”?
One man at the center of the Porteous trial really was Jonathan Turley, who was also the sole witness for House Judiciary Republicans in December on a panel of legal experts evaluating whether President Donald Trump had committed impeachable offenses. (Turley was a hard “no.”)
Back in 2010, Turley acted as Porteous’ lead defense counsel for the Senate trial after the House voted unanimously to impeach him. Turley faced off against Schiff, who led the prosecution for the House impeachment managers. But unlike the sure-to-be Democratic Trump prosecution, the managers against Porteous included Republicans like former Rep. Bob Goodlatte, along with other familiar Democratic faces, Reps. Zoe Lofgren and Hank Johnson.
What to watch for
I reached out to Turley to ask him what lessons he took away from the Porteous experience that the rest of us could learn from going forward. He had several worth your consideration, including an especially golden nugget for whomever Trump chooses to defend him in front of the Senate, if a full trial materializes.
“For defense counsel,” Turley said, “impeachment trials are curiosities bordering on the grotesque. They look and sound like a trial but lack key elements.”
First and foremost, Turley pointed to the peculiar jury any defense is going to have to face.
“You have a jury that you would strike for cause en masse,” he said of the Senate. “This trial will be particularly odd in having 100 politicians sit in judgment on a question of using public office for personal advantage. It is like having the Pirates of Penzance try a case of maritime salvage law.”
Although the Senate doesn’t get high marks, Turley was a lot more impressed by Schiff, whom he called an “able opposing counsel” then and a “skilled prosecutor” today. Unlike some of Schiff’s made-for-TV satire that he offered up during the House Intelligence hearings on Trump and Ukraine, the congressman showed up to his role as a Porteous impeachment manager to deliver a methodical, toast-dry takedown of the judge.
His approach worked. After the Senate Impeachment Trial Committee hearings (complete with multiple witnesses who shared firsthand accounts of the judge’s conduct), Schiff and Goodlatte made their case to the full Senate chamber.
They told senators that the facts were not in dispute, that even Porteous had admitted to taking money from lawyers with cases before him to fund his son’s wedding. They told of other schemes, like taking a portion of the bonds paid by defendants to bondsmen whom Porteous had chosen, or of the judge asking lawyers who appeared before him for cash, anything between $50 and $5,000.
Finally, the managers argued, Porteous had lied to the Senate in 1994 when he swore he knew of no reason he could not administer fair and thorough justice on the federal bench, even though he had failed to do so as a state judge.
For the defense
Turley then took his turn in the well of the Senate. Those people giving Porteous cash weren’t “cronies.” They were friends! And the “bribery” he committed wasn’t bribery at all. In fact, the Justice Department never brought charges against Porteous. How could the Senate remove him for a crime that wasn’t a crime in the eyes of the DOJ?
In the end, the Senate’s standard was not whether or not the judge had committed a crime beyond a reasonable doubt. It was whether he had “misdemeaned” himself and made it impossible to remain in his federal position of trust and authority. Like the House, the Senate voted unanimously against Porteous and removed him from office. But you can hardly blame Turley’s Senate defense for that.
“Even in a real trial,” he said, “no lawyer can transcend the facts of a case. You cannot make a sow’s ear into a silk purse. The most you can do is make a sow’s ear into keepsake for a jury.”
Among those voting to convict Porteous was Sen. Mitch McConnell, who will take the lead next week in setting the rules for the Trump impeachment, including on the questions of witnesses, procedures and, maybe most importantly, what role raw politics will or won’t play in the possible removal of President Donald J. Trump.
Patricia Murphy covers national politics for The Daily Beast. Previously, she was the Capitol Hill bureau chief for Politics Daily and founder and editor of Citizen Jane Politics. Follow her on Twitter @1PatriciaMurphy.