Tag Archives: Alexander Hamilton

Impeachment in the states: Missouri governor edition, Part I

19 Friday Jan 2018

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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

 

 

 

 

 

Foreign Emoluments, the President & Professor Tillman

27 Friday Oct 2017

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By Frank Bowman

Impeachment aficionados will be aware that a group calling itself Citizens for Responsibility and Ethics in Washington (CREW) has filed suit in the Southern District of New York seeking a declaration that Mr. Trump’s copious and lucrative business transactions with foreign governments and entities violate the Foreign Emoluments Clause of Article I, Section 9, which reads as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

Leaving to one side the question of whether the CREW plaintiffs have standing to bring the action, the central dispute is whether money paid to a president as a result of commercial transactions is a prohibited emolument.

As discussed on this site earlier in the year, Seth Barrett Tillman, an industrious professor from the National University of Ireland – Maynooth, has opened a second front in the emoluments battle with his claim that the foreign emoluments clause doesn’t apply to the president, or indeed to any elected federal official such the vice-president or members of congress.  In recent weeks, Professor Tillman has won two victories, one minor and another potentially less so.

His petit coup, recounted in a recent New York Times article, involved a dispute over the provenance of certain documents allegedly signed by Alexander Hamilton.  To make a long story short, in 1792, the Senate asked Hamilton, then the Secretary of the Treasury, to provide a list of all salaries and emoluments of “civil offices under the United States.” In a letter, Hamilton provided a list that included executive branch appointees, but not the president or vice president. Prof. Tillman contends that this letter is proof that Hamilton believed that the president is not a “person holding any Office of Profit or Trust under [the United States]” for purposes of the foreign emoluments clause.

You may think that this is a pretty thin argument (and as discussed below, it is), but a group of distinguished legal historians led by Professor Jed Shugerman who rejected Tillman’s interpretation in their amicus brief made an embarrassing mistake.  They pointed to a later 1793 document in government archives which does list the president and vice-president as holding civil offices under the United States and which appears to bear Alexander Hamilton’s signature.  They trumpeted this second document as conclusive disproof of an important prong of the Tillman position, only to have Tillman show that the second document almost certainly was not signed by Hamilton, but by some anonymous government functionary. Red faces abounded.  And the legal historians (very graciously) issued apologies for impugning the integrity of Tillman’s archival research.

Professor Tillman’s potentially more significant victory came in a letter from the Department of Justice to the judge in the CREW lawsuit in which DOJ stated that it is not conceding that the Foreign Emoluments Clause applies to the president.  This is notable because the Department’s position has traditionally been to the contrary, as most recently embodied in a 2009 memo from the Office of Legal Counsel opining that the president is “surely” covered by the clause.  So far, the Department has not reversed its 2009 opinion or affirmatively pressed the claim of presidential exemption, but the letter opens that possibility.

So does Tillman have a good argument?

In a word, no.

Tillman’s claim that the Foreign Emoluments Clause doesn’t include the president is based on two doubtful premises.

First, he contends that the phrase “office of profit or trust under [the United States]” doesn’t include the president because, he says, in English practice, the phrase “office under the Crown” referred not to the King or to elected offices, but only to appointed offices whose authority derived from the appointing hereditary sovereign.  But in the United States, the sovereign is not the president, but the people as a whole, or if one wants to take a strongly federalist view of the matter, the union of states represented by the elected central government.  All American officeholders — including the president — hold office “under the United States” because they derive authority from, and are not the sources of, the general government’s democratically legitimated sovereign power.

And even if this were not self-evidently the case, there is no plausible founding-era evidence that the drafters or ratifiers of the constitution viewed the phrase “office of profit or trust under” the United States in Professor Tillman’s peculiarly Anglophile sense.  Indeed, as the legal historians noted, the only direct expression of opinion by constitutional founders expressly endorses the view that the president is covered by the Foreign Emoluments Clause. During the Virginia ratifying convention, Edmund Randolph and George Mason plainly stated that presidents are bound by the clause, and Randolph, who would become Washington’s attorney general, went further to declare that a president who received foreign emoluments could be impeached for doing so.

The sole statement from a founding-era figure to which Tillman can point is the Hamilton response to the Senate inquiry.  But, as the legal historians convincingly explain, the Senate was asking for an accounting of “civil offices” and their salaries for a particular reason.

The request came in 1792, at the end of President Washington’s first term and towards the close of the second session of Congress. The term “civil offices” is distinct from the phrase in the Foreign Emoluments Clause (“office of profit or trust under [the United States]”), but matches the language of Article I, Section 6:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The most plausible explanation for the Senate request is that the Senate wanted to know which “civil offices” federal legislators would be barred from accepting, and which offices those standing for election to Congress for the first time in 1792 would be obliged to surrender if elected.  The presidency, being elective rather than appointive and thus irrelevant to the point of the inquiry, Hamilton did not include it.  What we can be absolutely sure of is that the Senate did not ask for, and Hamilton did not give, an opinion on whether the president is covered by the Foreign Emoluments Clause.

Before moving to Tillman’s next point, it is worth pausing on Article I, Section 6, to consider one of the many unpalatable implications of his theory.  If he is right and the phrase “office under the United States” does not include the president, then Article I, Section 6, does not bar the president from serving as a member of Congress while also serving as president. Which is ridiculous inasmuch as it would utterly destroy the constitution’s separation of powers.  But it is the unavoidable implication of Tillman’s argument that the framers used “office under the United States” as a term of art excluding the president.

Second, and this is the real meat of Tillman’s argument, he points to a handful of incidents in which early American presidents accepted ceremonial gifts from foreign governments or their representatives.  Washington accepted a key to the Bastille from the Marquis de Lafayette and from Louis XVI a portrait of that ill-fated monarch. Jefferson accepted a bust of Czar Alexander I.  Madison accepted a pair of pistols from a South American revolutionary, which he apparently passed on to his successor, James Monroe.  Tillman argues that these gifts prove that Washington, Jefferson, Madison, and Monroe all believed that the Foreign Emoluments Clause didn’t apply to the president, and he contends that these early incidents outweigh the roughly two centuries of subsequent practice in which both presidents and congress expressly recognized the applicability of the clause to the presidency.

Professor Tillman is deadly earnest in professing the interpretive importance of these incidents, but the moment one takes a deep breath and steps back to gain perspective, it’s plain that there’s little substance to the argument.  In the first place, as I wrote several months ago:

After all, the point of the [Foreign Emoluments] clause was to prevent foreign powers from seducing American officials away from their proper loyalties with valuable bribes.  The idea that anyone gave a moment’s thought to the idea that Washington or Jefferson would sell out the country because of a rusty old key or the marble visage of a member of the notoriously unattractive Russian royal line is just silly.  Accordingly, it is entirely unsurprising that Washington and Jefferson accepted the objects as a matter of courtesy and quite unlikely that anyone even thought about constitutional ramifications of doing so.

But the more important, and I think dispositive, point is this: If Tillman is right, then the framers wrote into the constitution a provision that would prohibit, say, the U.S. ambassador to France from accepting a jeweled snuff box from the French government, but would allow the King of France to award the President of the United States a title of nobility accompanied by a grant of land and revenues.  According to Tillman, King Louis XVI, rather than sending George Washington a portrait, could have tried to secure U.S. opposition to the Revolution of 1789 by declaring Washington the Duc de Haiti entitled to a percentage of the French crown’s revenues from that rich, sugar-producing colony.  Or George III of England could have begun the process of seducing America back into the British orbit by bestowing on Vice President Aaron Burr (a man notoriously open to extra-curricular peculation) the title of Baron of Barbados, with ownership of several large and lucrative sugar plantations.

These hypotheticals sound absurd to modern ears, but the problem of divided loyalties and overt corruption created by awards of foreign titles, lands, and revenue to heads of state and powerful notables was endemic to Europe from the Middle Ages through the 18th Century and would have been intimately familiar to the framers.

For centuries, English kings held French titles of nobility which, depending on the period, gave them French lands, which they held as feudatories of the French king, or even claims on the French crown.  Untold thousands of Englishmen and Frenchmen died in the wars fought over those territorial and dynastic claims. George III, the boogieman of the revolutionary generation, was simultaneously King of England, King of Ireland, and Duke and prince-elector of Hanover. And English critics were always troubled by the disposition of kings of the Hanoverian line to be drawn into German intramural squabbles. Phillip II was at various points King of Spain, Portugal, Naples, and Sicily, and Duke of Milan and lord of the seventeen provinces of the Netherlands. His far-flung dynastic commitments and devout Catholicism were the impetus for decades of near-constant warfare.  Endless additional examples could be cited, but the point is that the last thing the American framers would have wanted is an elected chief executive whose judgment might be distorted by enjoyment of an hereditary title or estate granted by a foreign power.

The even more acute problem that plainly concerned the founding generation was the seduction of both heads of state and lesser notables by rewards (or bribes, depending on your point of view) from foreign powers.  The practice was such a common aspect of European diplomacy as to scarcely merit remark on that side of the Atlantic. For example, the English Duke of Marlborough, Winston Churchill’s famous ancestor, was rewarded for his military successes with the title of Prince of the Holy Roman Empire and Prince of Mindelheim (a German principality). The entire European ruling class was entangled in a web of conflicting loyalties.

The American founders not only rejected hereditary aristocracy as a feature of the American future, but recoiled from the prospect of royal briberies.  In their brief, the legal historians note that Gouverneur Morris expressly cited the secret 1670 Treaty of Dover in which the King of England was induced to join France in its war against Holland both by providing him with a French mistress and paying him large sums to eliminate his debts.  Said Morris:

Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard agst. it by displacing him. One would think the King of England well secured agst. bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.

Morris was not discussing the foreign emoluments clause, but the passage reveals the founders’ acute awareness of the dangers of foreign payments to a head of state.  And it casts a revealing light on Professor Tillman’s primary defense against the practical absurdity of his position.  Tillman contends that it would have made sense to the framers to exclude the president from the foreign emoluments clause because a failure to do so would subject the country to diplomatic embarrassments attendant upon a constitutionally-mandated policy against the common European practice of accepting token diplomatic gifts.  But the whole point of the Foreign Emoluments Clause was to set the United States on a new path, free of the endemic corruption of European practices of the time.  To suggest that a fear of transitory diplomatic embarrassment would move them to gut this objective by permitting the most powerful officers of the United States to accept foreign titles and money is, frankly, absurd.

In the end, Professor Tillman deserves the respect due a diligent and inventive controversialist.  But his argument cannot stand up to serious examination.