Impeachment Resolution - The Honorable Carl J. Barbier: A Case Study
Resolving Judicial Misconduct: A Call for Congress to Prioritize Solutions over Politics
As explained below, the following impeachment resolution is one of the very few ever filed against a U.S. district judge that is publicly accessible.
INTRODUCTION
In the House Report impeaching G. Thomas Porteous, Jr., judge of the United States District Court for the Eastern District of Louisiana, The Committee on the Judiciary emphasized financial entanglements by a judge with persons having business before the court is well recognized as constituting the “gravest sort” of judicial misconduct. This type of conduct violates Federal law as well as several of the Canons of Judicial Ethics that are designed to ensure that parties receive a fair trial by an impartial judge - a judge that is neither soliciting nor accepting things of value from attorneys who are appearing in front of him.
Any person alleging that a federal judge has engaged in conduct which is reasonably likely to result in a substantial and widespread lowering of public confidence in the integrity and impartiality of the judiciary may file material related to the conduct of the federal judge with the U.S. House of Representatives. Material related to the conduct of a federal judge might reach the House and be referred to committee prior to the adoption of a resolution directing a committee to conduct an investigation. Historically, this has included petitions and materials from citizens.
The House’s role is not to punish a federal judge for bad behavior, but simply to determine whether articles of impeachment should be brought. Under our Constitution, the American people must look to the Congress to protect them from persons unfit to hold high office because of serious misconduct that has violated the public trust. Where, as in the case of Judge Barbier, the evidence overwhelmingly establishes that a federal judge has committed impeachable offenses, the House’s duty requires it to bring articles of impeachment and to try him before the United States Senate.
The House has impeached 19 individuals: 15 federal judges, one Senator, one Cabinet member, and two Presidents. The Senate has conducted 16 full impeachment trials. Of these, eight individuals - all federal judges - were convicted by the Senate. (John Pickering (1804); West H. Humphreys (1862); Robert W. Archbald (1913); Halsted Ritter (1936); Harry E. Claiborne (1986); Alcee Hastings (1989); Walter L. Nixon, Jr. (1989); G. Thomas Porteous (2010)). (Report of the Impeachment Trial Committee on the Articles Against Judge G. Thomas Porteous, Jr. 1 n.1, S. Rept. 111-347 (2010)).
In sum, since 1803, the House of Representatives has impeached only 15 judges and only 8 of those impeachments were followed by convictions in the Senate. Justice Samuel Chase is the only Supreme Court Justice the House has impeached, and in 1805 the Senate acquitted Chase.
Donovan sent a proposed resolution in support of the impeachment of Judge Barbier for high crimes and misdemeanors to the U.S. House of Representatives. The resolution has been forwarded to the House Committee on the Judiciary for review.
Although Judge Barbier has engaged in conduct which might constitute one or more grounds for impeachment under Article I of the Constitution, there are two challenges to initiating an impeachment process against a federal judge.
The first problem is political in nature. For example, a Democratic U.S. Representative is hesitant to initiate an impeachment against a federal judge who was nominated by a Democratic President.
The second problem is that most U.S. Representatives believe initiating an impeachment process against a federal judge is an exercise in futility. “I retire,” is all the subject federal judge needs to say in order to terminate the investigation and evade punishment under 28 U.S.C. § 351-364 or impeachment by the Congress. Moreover, if he or she retires at age 65 or later, a pension for life is guaranteed.
Nonetheless, following an investigation into the conduct of U.S. District Court Judge Carl Joseph Barbier, as set forth in Articles I through VI of the proposed resolution, the House Committee on the Judiciary, in conjunction with its duly authorized Task Force on Judicial Impeachment, should conclude that Judge Barbier has engaged in conduct which is reasonably likely to result in a substantial and widespread lowering of public confidence in the integrity and impartiality of the judiciary. Accordingly, impeachment is warranted.
The Six Articles of Impeachment
Article I
Judge Barbier committed a politically motivated fraud on the process of allocating common benefit fees in MDL No. 2179 by awarding $18,290,494.18 in common benefit fees to Mikal Watts, a known “mega donor” to the Democratic Party and a former member of the PSC, even though Judge Barbier knew that Watts had been indicted for falsely claiming to represent 40,000 oil spill claimants in MDL No. 2179.
Article II
In order to ensure the number of opt-outs did not exceed the secretly agreed upon 5,000 cap, Judge Barbier colluded with the MDL No. 2179 lead counsel and the fund administrator to fraudulently induce potential Economic Class Members not to opt-out of the MDL No. 2179 Economic and Property Damages Settlement Agreement.
Article III
Beginning in or about August 2010 and continuing through the present, Judge Barbier, knowingly and intentionally colluded with the MDL No. 2179 lead counsel and fund administrators to conceive, develop, and/or facilitate a sophisticated and deceptive “Eight-Step” fraudulent scheme to maximize judicial efficiency and/or their compensation in exchange for limiting the liability of BP. Justice for the plaintiffs/claimants was never a consideration.
Article IV
In repeatedly refusing to recuse himself from proceedings in which his impartiality would most assuredly be questioned, Judge Barbier deprived the parties and the public of the right to the honest services of his office.
Article V
Beginning in or about August 2010 and continuing through the present, Judge Barbier, has consistently violated the Canons of the Code of Conduct for United States Judges, namely Canons 2A, 3 and 3B(3).
Article VI
Judge Barbier intentionally omitted or deleted court documents from the court record which were embarrassing to him and proved that he sanctioned the “sewer service” tactic employed in two motions for sanctions against Donovan filed by Stephen J. Herman, James P. Roy, and Patrick A. Juneau who were co-defendants of Judge Barbier in Donovan v. Barbier, et al. These three individuals are known to be close personal friends and favored colleagues of Judge Barbier.
CONCLUSION
Similar to the Donovan v. Barbier, et al. civil RICO complaint and the complaint of judicial misconduct filed against Judge Barbier, this impeachment resolution was filed after a careful consideration of context, that is, the entire course of judicial proceedings, rather than isolated incidents. Indeed, it was only after the benefit of hindsight developed over a period of more than ten years of representing plaintiffs in MDL No. 2179 that Donovan realized this impeachment resolution was justified and appropriate.
The public has a right to know that the failure to uphold the rule of law by the Honorable Carl J. Barbier is not solely attributed to Judge Barbier's personal misconduct, but rather exposes a deeper issue within the judicial system. It sheds light on a systemic problem where U.S. federal judges have been able to preside over a federal judicial protection racket favoring corporations.