Impeachment Trial Raises Question: What is a Kickback?

When he was a Louisiana state judge, G. Thomas Porteous Jr. would refer small assignments known as "curatorships" to two of his former law partners. Each was worth a couple hundred dollars. A few times a year, the lawyers would send Porteous envelopes of cash at his request. The amounts equaled about half of what the assignments were worth.

None of that is in dispute, according to testimony Monday before a U.S. Senate committee.

But whether the situation qualifies as a kickback scheme is a matter of disagreement, and the answer will help determine whether Porteous, now a federal judge in New Orleans, will be removed from the bench. The committee’s impeachment trial of Porteous began Monday and is expected to last about five days.

One of the former law partners, Jacob Amato Jr., replied “Yes” when a House impeachment manager, Rep. Adam Schiff (D-Calif.), asked whether there was a kickback scheme.

The other former law partner, Robert Creely, disagreed. “There was no prearrangement,” said Creely, under separate questioning by Schiff. Creely testified that he didn’t even want the curatorship work, because the amount of money involved was relatively small. He said, though, that he and Amato did give Porteous money from the curatorships because they were longtime friends with the judge.

According to their testimony and records in the case, Porteous assigned the curatorships to the law firm Amato & Creely PLC from the late 1980s until he became a federal judge in 1994. In all, the assignments brought the firm $40,000 in revenue, and the lawyers gave Porteous about $20,000. Those numbers, though, are estimates, and Porteous’ lead attorney, Jonathan Turley, questioned Monday whether they are accurate.

(Above, Amato testifies while Porteous, at far right, watches with his legal team.)

Amato described the curatorships as simple work that could sometimes be done by legal assistants. As curator, the lawyer represents a civil defendant whom a plaintiff cannot find, such as the target of a home foreclosure. The curator runs a public notice in a newspaper and sends a registered letter to the defendant’s last known address.

The curatorships are central to one of the four articles of impeachment against Porteous, Article I. That article, though, does not mention the word “kickback,” alleging instead a “corrupt scheme.” A 147-page House report that accompanied the articles of impeachment does refer to a “kickback scheme.”

Under the federal law prohibiting “illegal remunerations” in federal health-care programs, a payment must be “in return” for something else in order to qualify as an illegal kickback. But criminal law is not directly relevant to the Senate’s impeachment trial.

National Law Journal photo by Diego M. Radzinschi.

Comments

[pat]

Question is better phrased as to what isn't a kickback. If it would be a kickback in business, it would be considered a kickback in judicial circles but far more serious.

[LC]

I'm not a lawyer, but I've been watching the hearings.

So far, it all seems extremely petty: relatively small amounts of cash, lunches, trips over 10-15 years before Porteous was named to the Federal Court.

And, quite frankly, the "cozy" relationships haven't surprised me. Not just because we're talking about New Orleans. I'd guess that similar stuff goes on all over the country but most especially in small towns where everybody in the legal community knows everybody else.

(For that matter, that's pretty much how business operates everywhere. Software and hardware vendors, for ex., regularly take potential customers out to lunch and those customers don't pick up the tab.)

If you asked me if I approved of this behavior, I would say no. Do I think that Porteus, based on the testimony so far, deserves to be a federal judge? No.

But does the stuff presented so far justify impeachment? I just don't know.