U.S. Rep. Bill Flores, R-Bryan, thinks a reprimand of U.S. District Judge Walter S. Smith Jr. for improper sexual advances toward a courthouse employee was not harsh enough and said he will explore procedures to impeach the judge.
The Judicial Council of the 5th U.S. Circuit Court of Appeals formally reprimanded the 75-year-old Smith in December after finding he made ”inappropriate and unwanted physical and nonphysical advances” toward a female courthouse staff member in his court chambers in 1998.
Smith, a federal judge since 1984 and a former chief judge of the Western District of Texas, also was suspended for one year from hearing any new criminal or civil cases filed after Dec. 3. But he continues to receive full pay. Federal judges have lifetime appointments and are set to earn $203,100 in 2016.
Flores said Thursday he will meet next week with the chairman of the House Judiciary Committee to familiarize himself with impeachment protocol. Meanwhile, Ty Clevenger, the former Dallas attorney who initiated the complaint against Smith, filed an appeal of the reprimand on Monday with the Judicial Conference Committee on Judicial Conduct and Disability of the Administrative Office of United States Courts in Washington, D.C., because he thinks it was too lenient.
Flores said his staff members have been contacted by those who are upset with the punishment meted out to Smith and calling for stiffer penalties.
“What I am doing is looking at the allegations, I am looking at the punishments that were given and I’m also looking to see what the impeachment process is for a federal judge,” Flores said. “Nobody has ever asked me about impeaching a federal judge before and I don’t have all the answers. So I want to have the answers before we start to move forward.”
Smith declined comment through a judicial assistant Friday when asked about Flores’ statements.
Flores said he will talk to U.S. Rep. Bob Goodlatte, House Judiciary Committee chairman, about procedures involved in impeaching a federal judge.
“At the end of the day, (Goodlatte) is going to have to decide. I will make a recommendation about should we or should we not, and then we will move forward,” Flores said.
While the Judicial Council of the New Orleans-based federal appellate court found that Smith’s conduct “was in contravention of existing standards of behavior for federal judges,” it concluded that his actions do not warrant a recommendation of impeachment.
The order of the Judicial Council also said Smith “does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts.”
“The Judicial Council also finds that Judge Smith allowed false factual assertions to be made in response to the complaint, which, together with the lateness of his admissions, contributed greatly to the duration and cost of the investigation,” the order, signed by 5th Circuit Chief Judge Carl E. Stewart, said.
The court has denied Tribune-Herald requests for records showing how much the investigation of Smith cost and for copies of investigative reports.
The council also directed Smith to complete at his expense a sensitivity training course “about appropriate professional interaction.”
The former clerk who accused Smith of groping her wrote a letter to Smith in 1998, telling the judge that his “proposition to me completely caught me off-guard.”
“It frightened me and has caused me much grief and emotional anguish,” she wrote. “It was very inappropriate, and I did nothing to provoke it.”
According to the woman’s testimony in a sworn deposition, on the day she said she was assaulted, she saw Smith at the third-floor water fountain in the Waco federal courthouse and he asked her to come to his chambers. She said it was 8:30 a.m. and he had a “pretty strong smell” of liquor on his breath.
When she went to the judge’s office, Smith closed the door behind her, put his arms around her and kissed her, she testified.
“I just froze. I couldn’t move. And he said, ‘Let me make love to you.’ And I, and I, I just freaked out,” she said in the deposition.
She said Smith tried to touch her inappropriately, but she pulled away and told him she had to get back to work.
The woman testified that after the incident, Smith sent her flowers at work and continued to make advances.
Flores said he intends to learn more about the 14-month investigation into Smith’s behavior, but said he thinks Smith’s punishment was too lenient.
“At face value — I don’t know all the details — but at face value it doesn’t seem like the punishment fit the crime. I do know that there was a judge in Galveston who was impeached for less, for a lesser offense, so it looks to me . . . one of the things that our judicial system is supposed to be is fair,” Flores said.
“So if you commit a certain kind of crime, you should have this kind of a punishment; more severe, harsher punishment. So there does seem to be a mismatch here. And so, I am going to look into it and see what we need to do. I just don’t know enough about impeaching judges today.”
Flores was referring to former U.S. District Judge Samuel Kent, who pleaded guilty in 2009 to lying to 5th U.S. Circuit Court of Appeals investigators who were looking into allegations that Kent had repeatedly groped and made unwanted sexual advances on two female employees who worked in the federal court in Galveston.
The U.S. House impeached Kent on charges of sexual assault, obstructing and impeding an official proceeding and making false and misleading statements, making Kent the first federal judge to be impeached since Walter L. Nixon Jr. in 1989.
Kent served 25 months of a 33-month federal sentence for lying to investigators.
Clevenger, who has been sanctioned and fined by Smith for filing what Smith called a frivolous lawsuit, has since moved to New York. He said he is pleased that Flores is exploring the possibility of impeachment.
“Judge Smith is morally unfit to pass judgment on anyone else. He destroyed the life and career of his victim, so I don’t think it’s too much to ask that he be removed from office and denied his retirement,” Clevenger said. “The issue is much bigger than Judge Smith. The constitution makes Congress responsible for judicial oversight, but Congress keeps punting that duty back to the judiciary. Time and again, the federal judiciary has shown that it is not up to the task.”
In his two-page letter of appeal filed Monday, Clevenger said Smith’s conduct, as determined by the court’s investigation, could have been classified as a felony.
“I’m sure most felons wish they could receive such lenient treatment,” Clevenger wrote. “It seems the (5th) Circuit has created a new category of crime — the de minimis felony — for those cases where the perpetrator is a federal judge.”
Clevenger supplemented his complaint against Smith in October to allege that Smith and Waco attorney Greg White violated conflict-of-interest standards by failing to disclose that White represents Smith in the judicial sexual misconduct investigation to attorneys opposing White in a civil case presided over by Smith.
The investigation council also found that Smith did not follow appropriate procedures regarding his subsequent recusal from the case involving White.