Tag Archives: Eric Greitens

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 7 (The “eminent jurists”)

18 Wednesday Apr 2018

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By Frank Bowman

An inquisitive reader, and former excellent student of mine, wrote in with a question about precisely who would try any impeachment charges against Governor Greitens approved by the Missouri House of Representatives.  He correctly noted that Article VII, Section 2 of the Missouri constitution provides that, if the governor or a member of the state supreme court is impeached, the trial of the articles of impeachment is to held before a “special commission of seven eminent jurists to be elected by the senate.”  But he wanted to know who counts as an “eminent jurist.”

Before I could respond, my industrious correspondent found and sent me the answer in a statute, RSMo 106.080, which states:

If the governor or a judge of the supreme court shall be impeached, the house of representatives shall immediately transmit such articles of impeachment to the senate who shall, without delay, proceed to the election of a special commission to try the cause, which commission shall be composed of seven eminent jurists, who at the time of their election are judges of the circuit or appellate courts of this state; provided, however, that judges of the supreme court shall not be eligible to serve on such special commission. The commission shall meet in the City of Jefferson within thirty days after their election on a day designated by the senate.

In short, by statute, only sitting circuit and appeals judges can be on the special commission.

ADDENDUM: After I first posted this analysis, my eminent friend Jim Layton, former Solicitor General of Missouri, pointed out that “eminent jurists” is a vague term that could be read to include retired judges, federal or state, and that it’s doubtful the legislature can, by statute, modify the meaning of a constitutional term.  I take his point, but since the constitution requires that the “eminent jurists” be “elected by the Senate,” my bet is that they follow the rule they plainly thought they had the power to enact.

Impeachment in the states: Missouri governor edition, Part 2

20 Saturday Jan 2018

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By Frank Bowman

In yesterday’s post, I discussed the basics of the impeachment provisions of the Missouri state constitution and how they compare with federal practice.  Today I turn to how Missouri’s rules intersect with the publicly reported facts of Governor Eric Greitens’ sex scandal.

The Basics

To recap, under the Missouri constitution the procedure for impeaching state judges and all elective officials is as follows:

The official must first be impeached by the state House of Representatives. Curiously, the state constitution does not specify a minimum vote threshold for approving articles of impeachment, but presumably, as with federal impeachment, approval requires a majority vote.

Once articles of impeachment are approved by the House, the trial of the allegations is held, not in the state senate, but by judges.  For all officials except members of the supreme court and the governor, impeachments are tried before the supreme court.  Impeachment of the governor or a member of the supreme court is tried to “a special commission of seven eminent jurists to be elected by the senate.”

Article VII, Section 1 of the Missouri constitution 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.”  As I discussed in detail in my last post, this apparently very broad standard has been interpreted by the Missouri Supreme Court in Matter of Impeachment of Judith K. Moriarty, 902 S.W.2d 273 (1994), to include only conduct that is a violation of some other law, i.e., some law other than Article VII, Section 1.

The legal violation need not be criminal. Nor does there seem to be a requirement like that in the federal constitution that the impeachable behavior be a “high” or great offense.  Even, as was the case in Moriarty, a minor civil regulatory infraction could apparently suffice. Moreover, it does not appear that the impeached official must have been previously found guilty or adjudged liable by any tribunal other than the impeachment court.

[NOTE: After this article was first posted, an astute reader who worked in the statehouse at the time of the Moriarty impeachment e-mailed me to point out that, prior to her impeachment, Ms. Moriarty was indicted and convicted in Cole County for a misdemeanor election law violation in connection with the same transactions that led to her impeachment. Curiously, however, in its opinion convicting Ms. Moriarty of the articles of impeachment, the Supreme Court never mentions the prior conviction or any criminal infraction.  It merely finds that she knowingly violated the civil election statutes, as alleged by the House.]

Finally, the Missouri Supreme Court held in Moriarty that judges sitting as a court of impeachment should not make political judgments about whether the charged conduct is serious enough to merit removal.  The practical effect of this limitation is that, while judges should not convict in an impeachment case unless the charged conduct violates state law, any proven violation of any state law, however minor, should result in conviction and removal so long as the Missouri House of Representatives deemed the conduct worthy of inclusion in an article of impeachment in the first place.

Is Governor Greitens impeachable?

These ground rules have significant implications for any effort to impeach Governor Greitens.

First, because the governor cannot be impeached unless he somehow violated the law, we must begin by determining whether any of his reported conduct did so.  Here’s a rundown of the major possibilities:

  • Adultery: A surprising number of states still make adultery illegal.  But Missouri is not among them.
  • Sexual offenses or false imprisonment:  Media accounts of the sexual contact between Mr. Greitens and his former hairdresser suggest that it was consensual.  In an interview today, Mr. Greitens resolutely insisted that this was the case. However, the woman’s account of the relationship includes at least one sexual encounter in which she was bound, a point Mr. Greitens has not so far denied. So long as the woman consented to the binding and all sexual contact occurring while she was bound, there would be no crime.  That said, if either the binding or any of the particular kinds of sexual contact that occurred while the woman was bound was non-consensual, the non-consensual behavior could be criminal.  Sexual contact without consent can constitute a series of crimes, ranging in seriousness from the misdemeanor of Sexual Abuse, RSMo 566.101, to felony Second Degree Rape, RSMo 566.031.  Either binding the woman without consent or declining to release her after she withdrew consent could in theory amount to false imprisonment (now known as third degree kidnapping), RSMo 565.130.  It must be emphasized that at this point there is no evidence of anything other than a consensual sexual encounter with somewhat unusual, shall we say, rules of engagement.  And that’s not a crime.
  • Blackmail or extortion: During a conversation with her husband in which she confessed to the affair with Mr. Greitens, the woman asserted that while she was bound, unclothed, and blindfolded, she saw a flash, which she interpreted as Mr. Greitens photographing her. She also said that Greitens threatened to release the photo to the public if she revealed the affair.  Mr. Greitens has denied that he took a picture or threatened to release it. There has been widespread media speculation that this conduct, if proven, might amount to “blackmail.”  The legal difficulty with this speculation is that there is no Missouri crime of blackmail.  If a person threatens public release of embarrassing material unless the victim turns over money or something else of economic value, that constitutes “stealing” by “coercion” – which includes a threat “to expose any person to hatred, contempt or ridicule.”  But there is no allegation here that Mr. Greitens sought money or anything else of economic value. Similarly, Missouri has no extortion statute.
  • “Revenge porn”: Some jurisdictions make it an offense to release publicly indecent images of another person without consent.  But Missouri has no such statute. And Mr. Greitens released nothing.
  • Invasion of privacy (the alleged picture):  Regardless of whether Mr. Greitens committed any crime akin to blackmail, if he simply took a picture, without the woman’s consent and while she was fully or partially unclothed, that would be a plain violation of Missouri’s invasion of privacy statute, RSMo 565.252.
  • Tampering with physical evidence: If the alleged photograph was ever taken, it has not surfaced, and the woman in the case says that Mr. Greitens told her he erased / destroyed the picture. However, if there was a picture and Mr. Greitens erased it for the purpose of preventing its disclosure in any “official proceeding or investigation,” that would be the crime of tampering with physical evidence, RSMo 575.100. Of course, if such a picture once existed, but Mr. Greitens destroyed it either out of remorse for his bad behavior or to prevent its discovery by, say, his wife, that would be no crime.

The bottom line here is that, if the woman is telling the truth, Mr. Greitens committed at least one crime under Missouri law – invasion of privacy for taking a non-consensual nude photograph.  The offense is only a misdemeanor, but as noted above, Missouri’s impeachment provisions set no minimum level of severity for impeachable offenses.

The most obvious impediment to proving conclusively that Mr. Greitens violated the invasion of privacy statute is the absence of the alleged photograph.  That said, even in ordinary criminal cases, physical evidence is not necessary to establish contested facts.  In criminal court, Mr. Greitens could be charged with and convicted of invasion of privacy purely on the testimony of the woman in the case.  As a practical matter, this would require her cooperation (trying to prove the case with only her taped statement to her husband would probably run afoul of the rules of evidence). But if she testified consistently with her taped statement, nothing would prevent a judge or jury from convicting Mr. Greitens because they believed her story and not his denials.

The same is true of an impeachment proceeding.  The Missouri House of Representatives could frame an article of impeachment based on violation of the invasion of privacy statute and the panel of judges appointed to hear the matter could convict the governor because they found her more credible than him. That said, without some corroboration that a photo ever existed, it seems somewhat improbable that either a prosecutor or the House of Representatives would proceed.

The most interesting legal question an impeachment case for invasion of privacy would present is whether a state official can be impeached for conduct that occurred before he took office.  The Missouri constitution doesn’t address this issue.  And the final intriguing twist on the matter is that we cannot be sure that the issue is what lawyers call “justiciable.”  In other words, the Missouri constitution delegates the task of trying impeachment of a governor to a special commission of judges appointed by the state senate.  In the federal system, the decision of the U.S. Senate on whether or not to convict an impeached officer is generally understood not to be reviewable by the courts. The Missouri constitution certainly implies that the decision of the special commission is final, but inasmuch as no such commission has ever been convened, we cannot know whether its decision would be deemed final by the regular courts.

As a final note, I have not discussed here the fact that the FBI is also apparently taking a preliminary look at this case.  I may return in a later post to consider whether any federal statute could possibly have been violated and whether a violation of federal law would be grounds for impeachment under the Missouri constitution.

Frank Bowman