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By Frank Bowman

Here in the Show-Me State, we have been granted a temporary reprieve from the feverish national focus on all things Trump by news of the sexual peccadillos of our recently-elected governor, Eric Greitens. As has now been reported across the nation, on Wednesday, January 10, shortly after his State of the State address, Governor Greitens released a statement admitting to a extramarital sexual affair with his former hairdresser back in 2015.

The admission came in anticipation of impending media reports alleging not only that there were one or more sexual encounters between the hairdresser and Mr. Greitens, but that on one occasion Mr. Greitens took a picture of the woman while she was bound and in a state of full or partial undress and then threatened to release the picture publicly if she were ever to speak about the affair. The reports were made all the juicier by the fact that the woman’s former husband secretly recorded her tearful confession to the affair and released the recording to the media.

In his statement, Mr. Greitens admitted the sex, but denied that he had either taken a picture of the woman en déshabillé or threatened to release such a picture to maintain her silence.

Political reaction to these revelations has been swift and somewhat surprisingly severe given that Mr. Greitens is a first-term Republican governor often touted as a rising political star in a state where Republicans hold all but one state-wide office and supermajorities in both houses of the legislature. Democrats immediately called for Mr. Greitens’ resignation, as have multiple Republican legislators. Even Republicans who haven’t gone that far seem, at best, to be withholding judgment pending the outcome of a criminal investigation by the St. Louis Circuit Attorney (and possibly one by the FBI).  One Republican state senator, Gary Romine, said that if investigations into Mr. Greitens’ behavior do not exonerate him, he should “resign or face impeachment.”

Naturally, as soon as I read the word “impeachment,” I perked up like a foxhound when the Master of the Hunt yells “Talley Ho!”  What follows is a two-part look at the law governing impeachment of Missouri state officials, a comparison of Missouri law to federal practice, and a preview of the particular issues an effort to impeach Mr. Greitens would present given the current state of the evidence.

Impeachment in Missouri

Article VII, Sections 1 and 2 of the Missouri constitution state:

Section 1. All elective executive officials of the state, and judges of the supreme court, courts of appeals and circuit courts shall be liable to impeachment for crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.

Section 2. The house of representatives shall have the sole power of impeachment. All impeachments shall be tried before the supreme court, except that the governor or a member of the supreme court shall be tried by a special commission of seven eminent jurists to be elected by the senate. The supreme court or special commission shall take an oath to try impartially the person impeached, and no person shall be convicted without the concurrence of five-sevenths of the court or special commission.

The most obvious difference between federal and state impeachment procedure is that, while in both systems the house of representatives impeaches the officer, i.e., specifies the charges against the accused, in Missouri the state supreme court, rather than the senate, tries the case. That is, the Missouri Supreme Court, not the Missouri senate, decides whether the allegations in the bill of impeachment are proven and thus whether the officer ought to be removed.  The way the Missouri Supreme Court has interpreted its function materially alters the Missouri impeachment process.

In the federal system, the president may be impeached for serious crimes (although there is disagreement about which ones) and for very serious non-criminal misconduct either in relation to the office or of a personal sort that undermines the president’s legitimacy. Most scholars would agree that, under the federal constitution, the president ought not be impeached for minor crimes (and perhaps not even for serious crimes like perjury if unrelated to his official duties) or for laziness, ineptitude, or pursuing political objectives contrary to those of the legislative majority.

Critically, all informed observers of the federal impeachment process agree that both the decision by the House about which behavior is impeachable and the subsequent decision by Senate about whether to convict and remove the accused are to a significant degree “political.”  As Alexander Hamilton famously said in Federalist #65, impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

The concededly political character of the federal impeachment process shapes the essential nature of the decision-making process.  Both the House and Senate are called upon not merely to decide the truth of factual allegations against the president, but to judge whether the conduct is of a nature that merits removal of the nation’s chief executive officer.  The second choice is a political judgment which the Framers consciously placed in the hands of two political bodies.

The Missouri constitution originally consigned the trial of impeachments to the state senate.  But in the 1940’s (perhaps in response to a case where the senate refused to convict a former senator whose factual guilt was patent), the constitution was amended to institute the present arrangement assigning impeachment trials to the state supreme court. The apparent purpose of the change was to eliminate politics from the last stage of the impeachment process, but as is so often true, this benevolent-sounding objective created a new complication.

In theory, courts are not supposed to be political bodies.  In theory, they are limited to deciding what the law is, whether facts are proven, and whether proven facts fall within the ambit of the law. Of course, any serious student of courts realizes that politics in the broad sense affects judicial decisions at every level. Judges unavoidably bring their own philosophical predilections to deciding both law and facts, and perhaps more importantly, common law judging has always had a public policy component.  Nonetheless, judges traditionally shun explicitly political judgments – such as whether removal of a particular executive branch official would or would not be beneficial to the commonweal.

This judicial discomfort manifested itself in the only Missouri impeachment case to arise after the constitution was amended to give the responsibility of trying impeachments to the supreme court. The case, Matter of Impeachment of Judith K. Moriarty, 902 S.W.2d 273 (1994), arose from the impeachment of the Missouri Secretary of State for “knowingly allow[ing] the signature of her son as candidate or of her administrative aide or both to be placed on an unsigned declaration of candidacy [for public office] so that declaration falsely declared that the son had appeared in presence of aide to declare for office within the time provided for by statute.”

The Missouri Supreme Court found that Ms. Moriarty did what the articles of impeachment charged, thus removing her from office. The interesting part is the court’s explanation of its role in the impeachment process. The court began by contrasting the traditional impeachment system in which the house impeaches and the senate tries the accused with the Missouri system of trial by supreme court:

An impeachment is thus a judgment by the House of Representatives—one of the popularly-elected, representative bodies of the people’s General Assembly—that an officer of the state has committed acts such that, were an election held, the people would not permit the impeached officeholder to remain in office. When a Senate determines whether to convict under articles of impeachment, the vote affirms or rejects the judgment of the House. Under this system, the possibility exists that the House may impeach and the Senate may convict an official for purely political reasons, though they clothe their charges with constitutional language like “misconduct.”

Missouri’s constitutional provision is a clear acknowledgment that the trial of impeachment charges is essentially judicial in character and is not a political function. This Court can convict only where there is actual misconduct as the law defines it. “Misconduct” means doing an unlawful act, doing a lawful act in an unlawful manner, or failing to perform an act required by law. It does not include errors in judgment, acts done in good faith, or good faith exercise of discretion.

This passage is remarkable in several respects.

First, it offers a distorted interpretation of the standard for defining an impeachable offense in federal and state systems in which legislators both formulate and try the articles of impeachment. The court opines that in such systems legislators are supposed to engage in a sort of mass mind-reading exercise assessing the probable electoral reaction of the public to the charged conduct. I confess to thinking this assessment misguided. In the federal system, at least, it is quite clear that senators are intended to exercise independent judgment, and that they should not decline to convict an office holder merely because they think the public might re-elect him despite constitutionally obnoxious conduct.  Were that the case, no demagogue could ever be impeached so long as he retained the probable support of the mob.

Moreover, when the Missouri court disparages senate impeachment trials on the ground that an officeholder may be convicted “for purely political reasons,” it betrays a crabbed and historically inaccurate view of what Founders like Hamilton meant by “political.”  For Hamilton and others of his generation, the term “political” ran far beyond narrowly partisan considerations to broad considerations of constitutional balance and societal good.  For them, impeachment was “political” because it demanded the exercise of sound judgment about whether removing a particular officer for particular conduct protected or disserved republican government.

More important from Governor Greitens’ standpoint is the court’s holding that, because judges and not legislators try Missouri impeachments, there can be a conviction only:

… where there is actual misconduct as the law defines it. ‘Misconduct’ means doing an unlawful act, doing a lawful act in an unlawful manner, or failing to perform an act required by law. It does not include errors in judgment, acts done in good faith, or good faith exercise of discretion.

This is huge because it markedly narrows the definition of impeachable conduct.  Indeed, the result is to judicially amend the Missouri constitution.  Recall that Article VII, Section 1 of the Missouri constitution says that officials may be impeached for “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”

Some of the items on this list obviously do refer to illegal conduct, notably “crimes … corruption in office, [and] any offense involving moral turpitude or oppression in office.” On the other hand, the constitutional text pretty plainly contemplates impeachment for lots of behavior that violates no other law. For example, neither “habitual drunkenness” nor “incompetency” is illegal.  Nor is either “willful neglect of duty” or “misconduct” necessarily a legal infraction.

To maintain its preferred self-conception of non-political arbiter of facts, the Missouri Supreme Court imposed a limiting construction on the constitutional term “misconduct” that requires the impeached official to have violated some other law.  (For you law geeks in the audience, it does so by the extremely dubious expedient of adopting its definition of “misconduct” from a Tennessee case construing the common law crime of “official misconduct,” an offense which exists nowhere in Missouri law.” Mid–South Indoor Horse Racing, Inc. v. Tennessee State Racing Commission,798 S.W.2d 531, 538 (Tenn.App.1990).)

Notably, the laws the Court found Ms. Moriarty to have violated were simply statutory rules for proper filing of candidacy for office.  Failing to perform the duties prescribed in these sections was apparently chargeable as a misdemeanor (perhaps under RSMo 115.641).  Moreover, it appears that, prior to the impeachment proceeding, Ms. Moriarty was charged in Cole County and convicted of such a misdemeanor for her conduct.  But curiously, the Missouri Supreme Court made no reference in its opinion either to the Cole County proceeding or to any violation of criminal law.  The bottom line of Moriarty seems to be that, on the one hand, the Supreme Court will not convict in an impeachment case unless the charged conduct violates state law, but on the other hand, violation of any state law, however minor, will result in conviction and removal so long as the Missouri House of Representatives deems it impeachable.

One sympathizes with Court’s reluctance to stray from its traditional judicial role, but the result is a markedly strained reading of the Missouri constitution — and one that could have considerable impact on any effort to impeach Governor Greitens.

I will address the specifics of the Greitens case in my next post.

Frank Bowman