Tag Archives: Impeachment for pre-inaugural conduct

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.

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

12 Thursday Apr 2018

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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.