by Frank Bowman

Missouri has been agog for the past 36 hours over the publication of a report by a special committee of the Missouri House of Representatives detailing allegations of sexual infidelity and, perhaps, sexual crime by Governor Eric Greitens.  Yesterday, I discussed the particulars of the report and and concluded that the story of the woman at the center of the affair, if believed, arguably describes both criminal violations and impeachable offenses.

I return today to amplify on the question of impeachability.  Were I one of Mr. Greitens’ lawyers, I might argue that, even if everything his former stylist said is true and thus that he technically committed criminal sexual offenses, the conduct occurred long before he was elected and thus cannot be the subject of impeachment.

To this there are at least two possible responses:

First, the Missouri constitution places no temporal limit on impeachable conduct.  Article I, Section 7, lists as impeachable conduct “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”  Of course, about half of the items on this list unmistakably refer to official misbehavior — “willful neglect of duty, corruption in office … or oppression in office.”

And the phrasing of the passage strongly implies that several of the other listed items are meant to have an official nexus, as well. For example, were I the governor’s lawyer, I’d argue that impeaching a state official for “incompetency” only makes sense if he or she is “incompetent” at performing the functions of state office.  One wouldn’t impeach a judge or a governor for inability to play the saxaphone or grill a steak.  Similarly, I’d suggest that “habitual drunkenness” before, but not during, an officeholder’s term can’t possibly be a sound reason to impeach.

Likewise, the governor’s lawyer’s might contend that the most plausible reading of “any offense involving moral turpitude or oppression in office” is that offenses involving moral turpitude also have to occur at least while the official is “in office,” and better still, in connection with official duties.  Personally, I don’t find the last part of that construction very compelling; it seems more likely to me that the drafters meant that any offense involving “moral turpitude,” regardless of its direct connection to official duties, could trigger impeachment.  The question of whether the morally turpitudinous behavior has to happen during the officeholder’s term seems to me more uncertain.

But the textual problem for Mr. Greitens’ defenders is that the constitutional list of impeachable conduct contains several items that are neither logically or gramatically restricted to the officeholder’s term.  The list starts with the words “crimes [and] misconduct,” and those terms aren’t obviously modified in any way that limits them to the period following assumption of official duties.

My second objection to an argument that a governor can’t be impeached for conduct that predates his inauguration is that, as a matter of sound policy, that can’t be right.  If it were to be discovered that a governor had bribed election officials to help secure election, or that a judge had bribed the governor to secure appointment to the bench, no one would suppose that the governor or the judge couldn’t be impeached on that basis, even though the conduct occurred before he or she took office.

The governor’s defenders might respond by conceding that pre-inaugural misconduct can count, but only if it was directly related to the electoral or appointive process by which office was attained.  But that, too, is plainly an unduly restrictive rule.

Suppose a sitting governor were found to have accepted bribes while he occupied a previous state position, or that he had committed murder six months before his election.  Would anyone seriously suggest that such a governor could not be impeached and removed?  The necessity of impeachment in such a case is made manifest by the multiple Missouri cases that have held that the only means of removing a constitutional officer is impeachment, regardless of whether such officer has also been convicted of a crime. In short, if we can’t impeach a criminal governor, we’re stuck with him until his term expires.  And that can’t be right.

My bottom line on all this is that the language of the Missouri constitution does not prohibit impeachment for pre-inaugural conduct.  Rather, the issue remains whether the House of Representatives considers the officeholder’s conduct violative of law and sufficiently egregious to merit removal.