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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: Greitens sex scandal

Impeachment in the States: Missouri Governor Edition (Part 6 – Pre-inaugural crime)

12 Thursday Apr 2018

Posted by impeachableoffenses in Uncategorized

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Greitens, Greitens impeachment, Greitens sex scandal, Impeachment for pre-inaugural conduct, Missouri constitution, Missouri impeachment

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.

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Impeachment in the States: Missouri Governor Edition, Part 4 (Erratum)

13 Tuesday Mar 2018

Posted by impeachableoffenses in Uncategorized

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Greitens, Greitens impeachment, Greitens sex scandal, Missouri constitution, RSMO 565.021

By Frank Bowman

If one is going to offer oneself as an “expert” on stuff to the press, one has to be ready for the inevitable humbling moments when one’s off-the-cuff opinions prove wrong.  The other day, the Columbia Missourian interviewed me about impeachment procedure in Missouri, and I suggested that, if Governor Greitens were convicted of a felony in St. Louis,  then RSMo 561.021, which disqualifies any elected official from office if convicted of a felony, would require Gov. Greitens’ immediate removal from office without the necessity of an impeachment proceeding.

A better-informed reader of the Missourian wrote in to say, politely, that I was talking through my hat.  Rather, the reader pointed out, several Missouri cases have held that, in  the case of statewide offices which are created by the constitution and for which the constitutionally prescribed means of removal is impeachment, the legislature may not prescribe some other removal procedure.  For those interested, the main cases are State Ex Inf. Attorney-General v. Brunk, 34 S.W.2d 94 (Mo. 1930) and State ex Inf. Nixon v. Moriarty, 893 S.W.2d 806 (1995).

Had I been thinking more clearly before succumbing to the pleasures of bloviation, I would have realized that the federal constitutional principle that permits removal of “the President, Vice President and all civil officers” only upon impeachment should apply equally in the states.  Missouri differs from the federal situation in that Missouri has a statute that purports to disqualify all elected officials who suffer a felony conviction.  But the principle that has forestalled Congress from attempting to pass felony disqualification laws or other removal shortcuts for federal officeholders is the same in both the federal and state situation. The basic idea is that, if the fundamental law of a nation or state provides an exclusive means of removing the holders of major offices, then the legislature cannot create a shortcut to that end through enactment of a mere statute.

So, with thanks to the Missourian‘s astute reader, I stand corrected.  If Governor Greitens is to be removed, it will be through impeachment, even if he is first convicted of a felony in St. Louis.

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Impeachment in the States: Missouri Governor Edition – Part 3 (The Picture)

10 Saturday Feb 2018

Posted by impeachableoffenses in Uncategorized

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Greitens impeachment, Greitens sex scandal, impeachment in the states, impeachment of governor, impeachment of Greitens, invasion of privacy, tampering with physical evidence

This site has previously discussed the Missouri law applicable to impeachment of governors and its application to the sex scandal swirling around Gov. Eric Greitens. We have previously noted that state officials are impeachable for virtually any misconduct violative of state law, including criminal misdemeanors.  We have observed that the offense Mr. Greitens seems most likely to have committed (if the publicly reported information proves accurate) is invasion of privacy, RSMo 565.252.

Mr. Greitens would be guilty of this crime if he took a picture, without the consent of the woman with whom he was having a sexual interlude, while she was fully or partially unclothed.  Mr. Greitens would be guilty of the more serious felony offense of tampering with physical evidence, RSMo 575.100, if he took such a picture and later, “Alter[ed], destroy[ed], suppresse[d] or conceal[ed the photo] with purpose to impair its verity, legibility or availability in any official proceeding or investigation.”

The question of whether such a picture was ever taken, and if so what happened to it, has become a running theme in Mr. Greitens’ interactions with his critics and with members of the press. Several days ago, for example, a reporter for the St. Louis Post Dispatch asked Mr. Greitens directly whether he had taken a photo of his former mistress.  Mr. Greitens declined to answer, claiming that he had answered questions about the matter before. However, Mr. Greitens has never denied taking such a picture, despite having had multiple opportunities to do so.  In his most extensive previous statement, Mr. Greitens said:

“This was a consensual relationship. There was no blackmail, there was no violence, there was no threat of violence, there was no threat of blackmail, there was no threat of using a photograph for blackmail. All of those things are false.”

Note that he denies “using a photograph for blackmail,” not taking a photograph in the first place.  It’s a curious circumlocution.  If no photograph was taken, why not say so plainly, and as Ephesians 6:14 puts it: “Stand firm then, with the belt of truth buckled around your waist, with the breastplate of righteousness in place”?

Indeed, even if one’s belt of truth had of late come unbuckled, it would make sense to deny that a photograph was ever taken … unless, of course, there really was a photograph and one feared that evidence of its existence might surface.

It may prove that Mr. Greitens was simply inartful in his original statements about this matter, and is now simply being unwisely stubborn in his refusal to amplify on an undoubtedly painful subject.  Still, if Mr. Greitens neither took nor destroyed an incriminating photograph, he ought to say so in plain terms and put the matter to rest.  So long as he evades these questions, a cloud of suspicion rather larger than a man’s hand will hang over his office and unnecessarily complicate the state’s affairs.

Frank Bowman

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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