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Impeachable Offenses?

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

Impeachable Offenses?

Tag Archives: impeachment of governor

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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Impeachment in the states: Missouri governor edition, Part 2

20 Saturday Jan 2018

Posted by impeachableoffenses in Uncategorized

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blackmail, Eric Greitens, Governor Greitens, impeachment of governor, impeachment of Greitens, invasion of privacy, Missouri state impeachment, revenge porn, stealing, tampering with evidence

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

 

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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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