Author Archives: impeachableoffenses

There’s an FBI Spy in My Soup: Trump’s Latest Attack on Law Enforcement

21 Monday May 2018

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By Frank Bowman

There is a certain twisted brilliance in the media strategies of Mr. Trump and his enablers.  By constant repetition, they’ve managed to inject into the daily national narrative an absolutely nonsensical, but deeply subversive, idea.  In the Trumpian universe, the fact that, before the 2016 election, the Federal Bureau of Investigation was investigating reports of foreign efforts to influence the election, perhaps in cooperation with the Trump campaign, is cause for concern, not about the foreigners or the Trump campaign, but about the FBI.

In Trump World, America’s intelligence and law enforcement agencies are apparently supposed to ignore reports of foreign efforts to influence elections and penetrate a presidential campaign.  In Trump World, the ever-growing mountain of evidence that the Trump family and its retainers were having highly unusual contacts with Russians (and now, it appears, Saudis and Emiratis) is simply brushed aside with the mantras “no collusion” and “witch hunt.”  In Trump World, we reason backwards.  Rather than examining evidence to determine whether anyone in Trump’s sphere did wrong, we must assume that Trump and all around him are blameless, and therefore we must conclude that anyone who inquires into the possibility that wrong was done must be a member of the nefarious deep state.  In Trump World, to oppose, or even to question, Trump is to be a traitor.

Back in the real world, the idea that the FBI is, or ever was, controlled by a nest of secret liberals hostile to Republican presidential candidates is comical.  The Bureau is, and always has been, deeply conservative.  Moreover, although somehow this fact no longer seems to matter, during 2016, the FBI was headed by James Comey, a staunchly orthodox Republican famous for his prickly sense of rectitude and willingness to resist political pressure who had served in high Justice Department positions in Republican administrations. Still more to the point, whatever the FBI may have discovered about Trump during 2016, it kept entirely secret.  As did the Obama appointees who ran the Justice Department. And therefore, nothing the FBI learned damaged the Trump campaign. Which, of course, was in marked contrast to how the unproductive investigation of Hillary Clinton was treated.

So we know that the FBI conducted investigations of both presidential candidates and behaved in a way that hurt one candidate (Clinton) by publicly smearing her reputation without actually charging her with a crime, while helping the other candidate (Trump) by keeping its investigation of him completely secret.

Thus, here in the real world, using normal logic, we would look at the evidence of the FBI’s behavior and conclude one of two things:  Either the FBI consciously set out to hurt Clinton and help Trump, or (and this is Jim Comey’s story) it was not trying to help or hurt either candidate, but made errors that happened to help Trump and hurt Clinton.

The one thing that no one using real world logic would deduce from the evidence is that in 2016 the FBI was engaged in a plot to harm the candidacy of Donald Trump.  What it was doing when it investigated Trump’s connections with Russia was its job — trying to protect the United States from foreign efforts to subvert the government and the democratic process.

That Mr. Trump would try to turn this reality on its head is unsurprising.  That Republican elected officials and once-respectable institutions of American journalism like the Wall Street Journal would abet him in his distortions is despicable, and a shame none them should ever be able to wash away.

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Why Being a Dreadful President Is an Impeachable Offense: A (mostly) dispassionate analysis

15 Tuesday May 2018

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In April 2018, Professor Frank Bowman gave this lecture sponsored by the University of Missouri Chapter of the American Constitution Society explaining the impeachment clauses of the Constitution, the historical precedent for their use in the cases of Presidents Andrew Johnson, Richard Nixon, and Bill Clinton, and a view of impeachment as an essential tool in the case of a president who consistently violates legal and behavioral norms essential to the preservation of American constitutional order.

Greitens’ Criminal Case Dismissed: Be Careful What You Wish For…

14 Monday May 2018

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By Frank Bowman

Never a dull moment here in Missouri.  This afternoon brings the news that, on the third day of jury selection, St. Louis Circuit Attorney Kim Gardner has moved to dismiss the invasion of privacy prosecution against Governor Eric Greitens.  This is, at least in theory, what is a called a dismissal without prejudice, meaning that the case can be refiled.  And Ms. Gardner says she will seek to refile.

The stated reason for the dismissal is that the defense named Ms. Gardner as a defense witness, and the trial judge allowed them to do so.  Ms. Gardner claims that she cannot proceed with the trial in a situation where her subordinates would be in the position of cross-examining her.

Ms. Gardner says she is considering either seeking a special prosecutor to handle the case or refiling and asking one of her assistants to lead the prosecution.

I haven’t yet thought through the validity of Ms. Gardner’s assertions about her ethical position.  I may have some thoughts on that later.

For the moment, I have a sneaking suspicion that Governor Greitens’ trial team has been too clever by half, at least if their objective is to preserve Mr. Greitens in the governor’s office.  My own necessarily tentative assessment of the invasion of privacy criminal case has been that it’s a very tough one for the prosecution in the absence of the photograph, or at least forensic evidence that a photograph once existed.  From what can be gleaned from press reports, the government had neither the picture nor any circumstantial forensic evidence. Thus, the state’s entire case rested on the credibility of the victim, who, according to her own statement, was blindfolded at the time the supposed picture was taken. And the state had to prove its case beyond a reasonable doubt and secure votes of guilty from every juror.

Therefore, while the state could have won (and may yet win) this trial based purely on a favorable jury assessment of the victim’s credibility, my money would have been on an acquittal or at most a hung jury.  Politically, either is a great outcome for Greitens.

But the aggressiveness of trial counsel has just deprived the governor of a reasonably likely legal win.  Instead, the criminal trial will either never happen or will be delayed for months by further legal wrangling.  In the meantime, the action shifts to the legislature’s special impeachment session, where the governor is saddled by multiple handicaps:

  • The charges in the legislature probably won’t be limited to invasion of privacy, with the inherent weakness of the absence of the photo.  As noted in an earlier post, if one believes the former mistress victim, Mr. Greitens also arguably committed one or more forms of felony sexual assault.  And, of course, there are now allegations of campaign finance violations.
  • Even if the impeachment case were limited to allegations about Mr. Greitens’ encounters with his mistress, the report of the House special committee on that matter indicates plainly that the committee members unanimously believe her, not him.
  • The burden of proof in impeachment is lower than the “beyond a reasonable doubt” standard of criminal cases.  And those seeking impeachment don’t need a unanimous verdict.
  • The legislators, even in Greitens’ own party, seem not to like him.  The Republicans in particular plainly think he is a political millstone.  And unlike jurors, they can’t be challenged for political bias or for prejudging the case.

It sure looks to me like the governor’s lawyers have outsmarted themselves.

Impeachment in the States: Missouri Governor Edition, Part 11 (More on suspension after impeachment)

09 Wednesday May 2018

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By Frank Bowman

Jason Hancock, a diligent reporter from the Kansas City Star, alerted me to a Missouri constitutional provision that kicks up even more dust on the question of whether Governor Greitens could be suspended from office following impeachment by the House, but before conviction by the panel of seven “eminent jurists” appointed by the Senate.

Article IV, Section 11(a) of the Missouri constitution states:

On the death, conviction or impeachment, or resignation of the governor, the lieutenant governor shall become governor for the remainder of the term.

Candidly, this language is almost impenetrable.

It says that the Lt. Gov takes over for “the remainder of the term” upon “the death, conviction or impeachment, or resignation of the governor.”  But it is entirely unclear about what “conviction or impeachment” means.  “Impeachment” could mean just a vote by the House on articles of impeachment, which is usually the technical meaning of that term.  But that can’t be right in this context because that would mean that the Lt. Gov. becomes the governor, and stays governor until the end of the term, as soon as the House votes and regardless of what the judges do.

Which leads one to think that the drafters intended “impeachment” in this context to mean completion of the whole process – the House vote and then the “eminent jurist” vote.

But if so, that leaves unexplained the word “conviction” in the odd phrase “conviction or impeachment.”  Does conviction here refer solely to the impeachment setting and thus to the verdict of the eminent jurists?  That would make logical sense, but it makes no grammatical sense because of the word “or” connecting conviction with impeachment.  In other words, one cannot have an impeachment conviction without first having a House impeachment vote, but one can have a separate criminal conviction regardless of whether there is an impeachment proceeding.

In which case, does conviction refer to some kind of conviction independent of an impeachment proceeding?  But that makes no sense because the term “conviction” doesn’t seem to have a definition.  Presumably, outside of the impeachment context it would have to refer to a criminal conviction.  But absent any other qualifier, it would include every kind and degree of criminal conviction from murder to jaywalking.  And that can’t be right.

Here’s my best guess:  The sensible way to read this is that the governor stays governor until the impeachment process – House vote and judge vote – produces a final result.  At which point, if the governor is impeached and convicted, the Lt. Governor takes over as governor for the remainder of the governor’s term.  But this sensible reading is not necessarily required by the text.

In addition, as explained in my last post, the governor could be suspended from exercising his official powers in the interval between the House impeachment vote and judicial vote on the articles of impeachment if the “eminent jurists” vote to suspend him.  Presumably, the Lt. Governor would take over the powers of governor during the suspension, to return them if the governor were acquitted, but keep them until the end of the governor’s term if the governor were convicted.

 

Impeachment in the States: Missouri Governor edition, Part 10 (Suspension after impeachment)

09 Wednesday May 2018

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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.

Michael Cohen cashes in…. Somewhere Robert Mueller smiles

09 Wednesday May 2018

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By Frank Bowman

I have been extremely reluctant to speculate about whether the investigations by Special Counsel Robert Mueller and other federal law enforcement authorities will produce results that could present a real danger to the Trump presidency.  I retain that reluctance.  But tonight’s reports that over the past year or so multiple corporations, including one associated with Russian oligarch  Viktor Vekselberg, deposited large sums in an account held by a shell company controlled by Michael Cohen, Trump’s personal lawyer, have a different feel than anything that’s come before.

In sum, Cohen created a company called Essential Consultants LLC.  One or more bank accounts in the name of that company were used to make the 2016 hush payment to “adult entertainer” Stormy Daniels.  In addition, during 2017 and early 2018, the same account(s) received the following deposits:

  • $500,000 from Columbus Nova, an investment firm in New York whose biggest client is a company controlled by oligarch Viktor Vekselberg, a Putin associate who recently became the subject of American sanctions.
  • Roughly $400,000 from Novartis Investments S.A.R.L., a subsidiary of Novartis, the multinational pharmaceutical company Switzerland.
  • $150,000 from Korea Aerospace, which “has partnered with the American defense contractor Lockheed Martin in competing for a multibillion-dollar contract to provide trainer jets for the United States Air Force that is expected to be awarded this year.”
  • $200,000 from AT&T

Columbus Nova claimed that the money was for an investment consulting arrangement commenced shortly after the Trump inauguration, but later terminated.

AT&T has said that, “Essential Consulting was one of several firms we engaged in early 2017 to provide insights into understanding the new administration,” adding that, “[t]hey did no legal or lobbying work for us, and the contract ended in December 2017.”

There are two important threads here.

First, this presents perhaps the first link between a very close Trump associate and a high-level Russian actor where the connection is not merely a meeting or solicitation with debatable objectives and uncertain results. The money is real and undeniable, and not even Russian billionaires pay people half-a-million dollars without some expectation of return on the investment.  Exactly what the money was for remains to be seen, but it will have to be explained.

Moreover, this story should be seen in conjunction with the excellent reporting over the past few days by both the Washington Post and the New York Times about the finances of both the Trump Organization and Michael Cohen.

The Post details the Trump Organization’s sudden shift in around 2006 from financing acquisitions through debt to making huge purchases totaling in the hundreds of millions of dollars, with cash.  It is possible, as Eric Trump has claimed, that the change occurred because other Trump properties were generating so much cash that debt financing was no longer necessary. But given Trump’s career-long failure to achieve that level of profitability, that explanation seems at least questionable.  Although it is far too early to reach any conclusion, the speculation that the cash may have come from sources like Russian oligarchs and others looking to park shady money is not far-fetched.  After all, back in 2014, before Trump became a candidate and the Russia connection became politically hazardous, Eric Trump bragged that the Trumps had access to huge quantities of Russian money.

The Times maps what it calls Cohen’s “shadowy business empire,” in which connections to Russians and Ukrainians of doubtful probity seem disturbingly common.

The more the connections between Trump’s people and Russia are measurable in dollars and cents, the harder it will be for Republicans who retain any measure of intellectual honesty to dismiss the Russia investigation as a “witch hunt.”  And that in turn should give Mueller and the Southern District both more time and solid legal reasons to perform a full analysis of the Trump Organization’s entanglements with Russia, and perhaps other questionable sources of financing.

Second, the other side of the story is the fat paychecks for Cohen from corporations with an obvious interest in currying favor with Cohen’s client, the newly minted president of the United States.  Those companies are going to have to answer a lot of pointed questions about what they thought they were buying.  And I suspect either Mr. Mueller or the U.S. Attorney’s Office in the Southern District of New York are going to dig deeply into the question of what Cohen was selling.

The results of those inquiries are quite likely to add to the growing legal pressure on Cohen. Moreover, the existence of large payments to Cohen by corporations with obvious interests in influencing the White House will put pressure on Trump to disavow his former lackey.  Which should in turn increase the likelihood that an abandoned Cohen will agree to cooperate against his faithless boss.

This is getting interesting.

Must Trump comply with a subpoena?

06 Sunday May 2018

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By Frank Bowman

Rudolph Giuliani, the newest in the revolving cast of Mr. Trump’s lawyers, has made a number of striking legal claims in his short tenure.  His latest is that Mr. Trump is not obliged to comply with a subpoena to testify from a court or grand jury.

Giuliani is assuredly wrong.  But any attempt to subpoena Mr. Trump would raise a number of complicated issues.

First, Giuliani is right that Mr. Trump, like any other person, has a right under the Fifth Amendment to decline to answer questions that may tend to incriminate him.  However, that right does not allow Trump or anyone else to simply refuse to appear in a court or grand jury room if properly subpoenaed.  Rather, a person subject to subpoena must appear at the date and time specified in the subpoena and assert the privilege to particular questions.

If a witness is technically a “target” of a grand jury investigation and provides the prosecution with a written statement of intention to assert the Fifth Amendment, DOJ policy is that such a witness “ordinarily should be excused from testifying.”  U.S. Attorney’s Manual, 9-11.154 . But that would be a matter of discretion, not law.  And even in that case, unless the witness is expressing an intention to assert the Fifth as to all questions, he would ordinarily be obliged to appear and answer questions that cannot be reasonably viewed as seeking self-incriminatory information.

In the case of a president, even one who is not formally a “target,” the prosecutor might accommodate the president’s expressed intention not to answer questions on particular topics that seem plainly incriminatory by agreeing in advance not to ask them.  But that, too, would be a matter of discretion rather than law.

In any case, it seems somewhat unlikely that even this unconventional president would want to be seen as formally “taking the Fifth” to avoid testifying.

Second, there are issues about which Mr. Trump might claim some form of “executive privilege.”  Broadly speaking, executive privilege is the claim that a president can withhold information from congress, the courts, or the public for reasons relating to the proper functioning of the presidential office.  Legitimate claims of executive privilege are generally related to national security or protecting the privacy of White House deliberations for reasons promoting the public interest.

A great many questions Mueller is said to be interested in asking cannot by any reasonable stretch of the imagination fall within the executive privilege doctrine. Virtually all the questions on the list published by the New York Times that relate to Russia seem far outside any reasonable executive privilege claim.  Leaving all other considerations aside, almost all of them relate to events that occurred before Mr. Trump took office.

Some questions Mueller might ask would probably draw objections on executive privilege grounds.  For example, questions about conversations between Mr. Trump and White House advisers about whether to fire former FBI Director James Comey would probably draw such objections on the theory that executive branch personnel decisions should ordinarily remain private.  Mr. Mueller’s team might respond that executive privilege, to the extent it exists, must yield when the inquiry is into possible criminal misuse of the presidential power being discussed.  The analogy would be to the crime-fraud exception to the attorney-client and marital privileges, pursuant to which otherwise confidential communications must be disclosed if they were in furtherance of crime.

The Supreme Court held in U.S. v. Nixon that claims of executive privilege must yield in the face of investigation of criminal wrongdoing by the president or his aides. Nonetheless, Mueller’s people would have to make more than a bare claim of investigative interest to succeed in compelling testimony from this or any president about internal deliberations on policy or personnel decisions.

Finally, one argument that has been floated in the wake of Giuliani’s comments is that the president need not comply with a subpoena because he is the head of the executive branch and thus the ultimate boss of the prosecutors running the Mueller investigation.  This is frivolous. A subpoena is not a request by a prosecutor.  It is an order issued by authority of the court (if a trial subpoena) or of the court and the grand jury (if a grand jury subpoena).  It is a command by the judicial branch.  And it is not one that a president is entitled to disobey.

My personal bet is that Mr. Trump will not agree to testify voluntarily, and that Mueller’s team will subpoena him as a last resort.  Should that come to pass, it will get interesting very fast.

Impeachment in the States: Missouri Governor Edition, Part 9 (Still more on pre-office conduct)

04 Friday May 2018

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By Frank Bowman

Regular readers will recall that former Missouri Chief Justice Michael Wolff and I have disagreed about whether Governor Eric Greitens can be impeached for conduct that occurred before he took office.  Judge Wolff said no.  I said yes.

One of Judge Wolff’s arguments was that there had been no impeachments of federal officers for conduct prior to assumption of office.  I responded, in part, that federal practice is irrelevant to Missouri constitutional rules because the standards for impeachment are markedly different in the U.S. and Missouri constitutions.  But I concurred with Judge Wolff’s assertion that no federal official had been impeached for pre-office conduct.

Both of us were wrong.  In an op-ed in today’s New York Times, Congressman Adam Schiff recalls his experience as a member of the House Judiciary Committee in 2010 when it voted to recommend impeachment of  U.S. District Judge Thomas Porteous.  He notes that one of the articles of impeachment approved by the House and later the Senate alleged corrupt behavior while Porteous was a state judge and before he took the federal bench.

As Congressman Schiff observed, “In voting overwhelmingly to convict Judge Porteous on every count, the Senate established the precedent that a federal official can be removed for conduct committed before assuming office.”

Precedent in federal impeachment is a peculiar animal.  The process lies entirely within the province of Congress, and is generally agreed not to be reviewable by the courts. Therefore, the legal principle of stare decisis — meaning that earlier decisions of appellate courts have some binding effect on judges in later cases — doesn’t apply to federal impeachments.  Each new congress can interpret the impeachment language of the constitution however it chooses, regardless of what previous congresses may have done.  That said, congressmen have tended to look at prior impeachment decisions as guides to appropriate constitutional interpretation.  Therefore, it seems quite likely that the Porteous case will be seen as establishing a meaningful precedent.

This may be of some modest consequence in the case of Governor Greitens.  The standard for impeachment under the Missouri constitution is entirely different than the federal constitution’s famous “treason, bribery, or other high crimes and misdemeanors.”  And therefore federal practice is of little or no real importance.  Still, Governor Greitens defenders will surely try to use precedent from any source if they think it helps their man.  The impeachment of Judge Porteous takes one possible argument off the table.

The Porteous case is of greater potential importance should Mr. Trump ever face a formal impeachment inquiry.  Inasmuch as the Mueller investigation focuses largely on contacts between Mr. Trump and his associates and agents of Russia prior to Trump’s inauguration, the Porteous precedent places any misbehavior in that period squarely within the purview of the congressional impeachment power.

Playing “20 Questions” With Trump

01 Tuesday May 2018

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By Frank Bowman

The New York Times this morning released a series of questions which it says Special Counsel Robert Mueller’s team would like Mr. Trump to answer.  The provenance of this list is murky.

First, we don’t really know if it’s genuine.  Second, if the list is essentially genuine, it seems unclear whether the questions are actually those Mr. Mueller would like answered or are, instead, summaries in question form by Trump’s lawyers of broad topic areas Mueller’s people have said they’d like to discuss with Mr. Trump.  Third, the source of the list is uncertain.  According to the Times, the list did not come from Mueller’s team.  Which leaves people in the White House or others associated with Mr. Trump’s legal defense.

Although the question list is certainly a scoop for the Times, I’m not sure it adds much to our knowledge of the Mueller investigation.  All of the published questions concern issues or events that have been discussed ad nauseum in the public press.

That said, I am struck by the prevalence of questions that seem to relate primarily to obstruction of justice.  There is a set relating to the firing of former National Security Adviser Michael Flynn, a long set about the firing of former FBI Director James Comey, and, quite interestingly, a set about threats to the continued tenure of Attorney General Jeff Sessions.  In addition, several of the questions relate to the activities and potential termination of the office of special counsel itself.

My first reaction to the questions about Sessions and the special counsel’s office is that they serve as a kind of brush-back pitch — a warning that Trump’s threats to Mueller and his efforts to influence Mueller’s investigation are themselves legally and politically dangerous.

Beyond that obvious point, I find the heavy emphasis on obstruction of justice a tad disturbing.  It is undoubtedly true that obstruction of justice is a crime (albeit one for which, under current DOJ policy, a sitting president will not be indicted) and potentially an impeachable offense.  And it is also true, contrary to the assertions of Mr. Trump, that one can be guilty of obstruction of justice for impeding investigation of matters that ultimately prove not to be criminal.

Nonetheless, those who ardently oppose Mr. Trump — particularly those who long for his impeachment — must remember that this is a political process.  By which I mean that changing the public mind matters as much or more than legal fine points.  Suppose that, at the end of his investigation, all Mr. Mueller comes up with is evidence that Mr. Trump obstructed an investigation that produces no proof of other significant wrongdoing by Trump or those closest to him.  In that case, those who already despise Trump will hail the obstruction finding as a victory.  But Trump and Trump supporters will claim exoneration because, they will say, a president is entirely within his rights to squelch a politically damaging investigation into non-existent crimes.

That the Trumpists would be wrong on the law won’t matter a fig in the court of public opinion, or in the Republican precincts of the House of Representatives if, post-midterms, the House were to begin an impeachment inquiry.  It is perfectly clear that the hard core of congressional Trump supporters just aren’t interested in abstractions like prosecutorial independence or even the rule of law itself. The only result from Mueller that might change the progressively hardening partisan positions on Trump would be solid evidence of serious substantive crime.

Of course, Mr. Trump’s own tweeted response to the leaked questions, in which he claims there are “No questions on Collusion,” is flatly wrong.  Many of the questions relate directly to possible cooperation between Russian entities and the Trump campaign.  Still, one hopes that Mueller’s inquiries are focused more heavily on that end of things than the leaked queries suggest.

In short, a Trump critic should hope that the Mueller folks will, in the end, be able to show that Mr. Trump’s obstructive behavior was intended to conceal real, and incontrovertibly serious, misconduct.

Impeachment in the States: Missouri Governor Edition, Part 8 (More on impeachment for pre-office conduct)

24 Tuesday Apr 2018

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By Frank Bowman

I’ve written before on this site expressing the view that a Missouri state official may constitutionally be impeached for conduct prior to taking office. Last week, former Chief Justice of the Missouri Supreme Court Michael Wolff expressed the contrary opinion in an op-ed in the St. Louis Post-Dispatch.  As much as I respect Judge Wolff for his legal acumen and his many contributions to this state, on this point at least, I have to respectfully disagree.

Consequently, I wrote a rebuttal explaining why impeachment for pre-office conduct is surely permissible which was published in the Post-Dispatch yesterday.  Here’s the link to the article.  And it is reproduced in full below.

Yes, the Governor Can Be Impeached Right Now

Michael Wolff, former Chief Judge of the Missouri Supreme Court, recently wrote that, Governor Eric Greitens cannot constitutionally be impeached for misconduct committed before he assumed office.   

 I admire Judge Wolff immensely. But I respectfully disagree.

First, the Missouri constitution places no time limit on impeachable conduct.  It defines impeachable behavior as “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.” 

Some items on this list — “willful neglect of duty, corruption in office … or oppression in office” — unmistakably refer to official misbehavior.  Several others are probably meant to have an official connection. “Incompetency” probably refers either to a debilitating mental breakdown or an evident inability to perform official functions.  Similarly, “habitual drunkenness” before, but not during, an officeholder’s term can’t possibly be a sound reason to impeach.

Likewise, the phrase “any offense involving moral turpitude or oppression in office” could be interpreted to require that the words “in office” modify both “moral turpitude” and “oppression.” Then the phrase could be read like this: “any offense involving moral turpitude [in office} and oppression in office.” That’s at least plausible.

But Jim Layton, former Solicitor General of Missouri, points out that, at the time this constitutional impeachment language was written in 1945, “oppression in office” was, and long had been, a specific statutory crime. Therefore, the phrase “oppression in office” was just the name of one offense for which an officeholder could be impeached. Thus, it is very unlikely that the words “in office” were intended to reach back up the sentence and limit the impeachability of an “offense of moral turpitude” to crimes committed during an officeholder’s term.

But even if we didn’t know this clarifying fact about old Missouri law, the real textual problem for Judge Wolff’s argument is that the constitutional list of impeachable conduct starts with the words “crimes [and] misconduct,” and those terms aren’t modified in any way that limits them to the period following assumption of official duties.

Most importantly, as a matter of good governance and common sense, the notion that a governor can’t be impeached for conduct that predates his inauguration can’t be right.  If it were to be discovered that a governor had bribed election officials to help secure election, no one would suppose that the governor couldn’t be impeached on that basis, even though the conduct occurred before he took office.

Governor Greitens’ defenders might concede that pre-inaugural misconduct can sometimes count, but insist that impeachment is limited to conduct directly related to the electoral or appointive process by which the person impeached gained office. 

But that’s not what the Missouri constitution says.  And such a rule would be irrational.  Suppose a sitting governor accepted bribes while he occupied a previous state position, or 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 is made clear by the multiple Missouri cases flatly holding that the only means of removing a constitutional officer (such as the governor) is impeachment, even if the 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, even if he’s sitting in jail as a convicted felon.  That can’t be right.  And the Missouri constitution does not require that result.

Finally, Judge Wolff notes that there have been no federal impeachments for pre-office conduct.  That’s true, but irrelevant. [NOTE: As I observe in a later blog post, this is not actually the case – the most recent impeachment of a federal judge included an article charging misconduct while the judge was on the state bench.] Missouri chose not to adopt the “high crimes and misdemeanors” formula of the U.S. constitution. In Missouri, the words of the Missouri constitution govern. Moreover, almost all federal impeachments have been of judges, and grounds for their removal are arguably limited to misconduct in office by the constitutional guarantee that they will remain in office “during good behavior.” Finally, no serious student of federal impeachment law doubts that federal officials could be removed for pre-office behavior if sufficiently serious.

The question for the Missouri House is not when the governor may have committed offenses, but whether such offenses fit within the words of the Missouri constitution and are serious enough to merit impeachment.