By Frank Bowman
I have been asked by several media outlets about what happens in the period after a state official is impeached by the House of Representatives, but before the matter is tried by the “seven eminent jurists” appointed by the Senate. So here’s the scoop:
There is a Missouri statute that purports to automatically suspend a state officer upon impeachment by the House, RSMO 106.050. However, in a 1994 decision involving the impeachment of Missouri Secretary of State Judith Moriarty, the Missouri Supreme Court found that suspension cannot be automatic. Rather, the judges charged with trying the impeachment can, but need not, vote to suspend the impeached officer during pendency of the impeachment proceedings.
To be candid, I find this decision quite peculiar. The statute is plainly meant to mandate automatic suspension. It makes no reference to a discretionary choice by the judiciary panel charged with trying impeachments. Nor does it state or imply that some kinds of impeachable offenses merit suspension while others do not. Yet the Moriarty decision necessarily means that there are suspendable and non-suspendable offenses, and does so without specifying how one would tell the difference.
Some indication of the court’s thinking on the latter point can be gleaned from this passage in the opinion:
Here, the offense alleged went to a claim of misconduct regarding the core responsibilities of the office of the Secretary of State, certification of a candidate for public office. Here, also, a general election was scheduled to occur prior to the trial of impeachment. The charges cast doubt as to the ability of Ms. Moriarty to properly carry out her supervisory responsibilities. There was no possibility of clearing away that doubt until after Ms. Moriarty’s impeachment trial was completed. This was a matter of such unique importance and sensitivity that suspension pending trial was required to uphold the sanctity of our election process.
The court seems to say that suspension is warranted in a case where the nature of the charges “cast[s] doubt as to the ability of [an officeholder] to properly carry out” the responsibilities of office. But that is, at best, a political judgment, and a highly speculative one at that. Yet this is the same court that in its later decision convicting and removing Secretary of State Moriarty piously declared that, “this Court must assume that our role is as a court, not as a substitute political body.”
Regardless, for the present it appears that, should Governor Greitens be impeached, he would continue to exercise his gubernatorial powers until such time as the panel of eminent jurists appointed by Senate voted to suspend him.