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Impeachable Offenses?

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

Impeachable Offenses?

Tag Archives: Michael Wolff

Impeachment in the States: Missouri Governor Edition, Part 8 (More on impeachment for pre-office conduct)

24 Tuesday Apr 2018

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Greitens, Greitens impeachment, Michael Wolff, Missouri constitution, Missouri impeachment, pre-office conduct

By Frank Bowman

I’ve written before on this site expressing the view that a Missouri state official may constitutionally be impeached for conduct prior to taking office. Last week, former Chief Justice of the Missouri Supreme Court Michael Wolff expressed the contrary opinion in an op-ed in the St. Louis Post-Dispatch.  As much as I respect Judge Wolff for his legal acumen and his many contributions to this state, on this point at least, I have to respectfully disagree.

Consequently, I wrote a rebuttal explaining why impeachment for pre-office conduct is surely permissible which was published in the Post-Dispatch yesterday.  Here’s the link to the article.  And it is reproduced in full below.

Yes, the Governor Can Be Impeached Right Now

Michael Wolff, former Chief Judge of the Missouri Supreme Court, recently wrote that, Governor Eric Greitens cannot constitutionally be impeached for misconduct committed before he assumed office.   

 I admire Judge Wolff immensely. But I respectfully disagree.

First, the Missouri constitution places no time limit on impeachable conduct.  It defines impeachable behavior as “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.” 

Some items on this list — “willful neglect of duty, corruption in office … or oppression in office” — unmistakably refer to official misbehavior.  Several others are probably meant to have an official connection. “Incompetency” probably refers either to a debilitating mental breakdown or an evident inability to perform official functions.  Similarly, “habitual drunkenness” before, but not during, an officeholder’s term can’t possibly be a sound reason to impeach.

Likewise, the phrase “any offense involving moral turpitude or oppression in office” could be interpreted to require that the words “in office” modify both “moral turpitude” and “oppression.” Then the phrase could be read like this: “any offense involving moral turpitude [in office} and oppression in office.” That’s at least plausible.

But Jim Layton, former Solicitor General of Missouri, points out that, at the time this constitutional impeachment language was written in 1945, “oppression in office” was, and long had been, a specific statutory crime. Therefore, the phrase “oppression in office” was just the name of one offense for which an officeholder could be impeached. Thus, it is very unlikely that the words “in office” were intended to reach back up the sentence and limit the impeachability of an “offense of moral turpitude” to crimes committed during an officeholder’s term.

But even if we didn’t know this clarifying fact about old Missouri law, the real textual problem for Judge Wolff’s argument is that the constitutional list of impeachable conduct starts with the words “crimes [and] misconduct,” and those terms aren’t modified in any way that limits them to the period following assumption of official duties.

Most importantly, as a matter of good governance and common sense, the notion that a governor can’t be impeached for conduct that predates his inauguration can’t be right.  If it were to be discovered that a governor had bribed election officials to help secure election, no one would suppose that the governor couldn’t be impeached on that basis, even though the conduct occurred before he took office.

Governor Greitens’ defenders might concede that pre-inaugural misconduct can sometimes count, but insist that impeachment is limited to conduct directly related to the electoral or appointive process by which the person impeached gained office. 

But that’s not what the Missouri constitution says.  And such a rule would be irrational.  Suppose a sitting governor accepted bribes while he occupied a previous state position, or 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 is made clear by the multiple Missouri cases flatly holding that the only means of removing a constitutional officer (such as the governor) is impeachment, even if the 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, even if he’s sitting in jail as a convicted felon.  That can’t be right.  And the Missouri constitution does not require that result.

Finally, Judge Wolff notes that there have been no federal impeachments for pre-office conduct.  That’s true, but irrelevant. [NOTE: As I observe in a later blog post, this is not actually the case – the most recent impeachment of a federal judge included an article charging misconduct while the judge was on the state bench.] Missouri chose not to adopt the “high crimes and misdemeanors” formula of the U.S. constitution. In Missouri, the words of the Missouri constitution govern. Moreover, almost all federal impeachments have been of judges, and grounds for their removal are arguably limited to misconduct in office by the constitutional guarantee that they will remain in office “during good behavior.” Finally, no serious student of federal impeachment law doubts that federal officials could be removed for pre-office behavior if sufficiently serious.

The question for the Missouri House is not when the governor may have committed offenses, but whether such offenses fit within the words of the Missouri constitution and are serious enough to merit impeachment.

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A Mad Week: As Trump’s Unfitness Becomes Ever Plainer, Republicans Maneuver to Protect Him

06 Saturday Jan 2018

Posted by impeachableoffenses in Uncategorized

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Clinton Foundation, Fire & Fury, Graham, Grassley, hillary clinton, Jeff Sessions, Justice Department, Michael Wolff, Mueller, politics of impeachment, Steele

By Frank Bowman

During the past week, two discordant trends gathered strength in the parallel universes inhabited by the increasingly Trumpist Republican Party and pretty much everyone else.

One the one hand, evidence of Mr. Trump’s unfitness for office continued to mount.  Michael Wolff’s book about the Trump campaign and his early days in office, Fire & Fury, was breathlessly previewed, and then released early in the face of a threat by Trump to sue to stop it.  Whether or not all the details of the book are accurate, the thrust of its portrayal of Trump — an unprepared, barely literate, narcissist who ran for president as a brand-building stunt, never expected to win, and lacks the minimum levels of intelligence, rectitude, maturity, discipline, and psychological stability necessary for the job — is entirely consistent with the existing public record.

Mr. Trump is reportedly furious about the book, and his handlers have furiously disparaged both book and author.  But, typically, Trump’s own uncontrollable compulsion to return fire merely confirmed the truth of the book’s portrait of a man both pathologically insecure and cripplingly wanting in self-awareness.  This morning, in response to Wolff’s disparagement of his intelligence and stability, Mr. Trump tweeted that he is “a very stable genius.”

Meanwhile, at the other end of Pennsylvania Avenue, congressional Republicans seem to be unaffected by the ceaseless accretion of proof that Mr. Trump is dangerously unsuited to be president.  Indeed, as Trump’s troubles increase, an increasing number of Republican legislators evince a readiness to undermine long-standing governing norms to protect him.

Trump and his defenders obviously view the Mueller investigation as a major threat to the administration.  It is increasingly plain that an important faction of Republican legislators also see Mueller as a threat, although it is unclear whether they are most concerned about the danger Mueller poses to Mr. Trump, or the danger that adverse conclusions by Mueller would pose to Republican electoral prospects in coming down-ballot elections.  Regardless, a two-pronged Republican strategy seems to be emerging.

Prong one involves attacking Mueller directly, with insinuations that he and his team are servants of an anti-conservative “deep state” embedded in the Justice Department and FBI, and calls for the resignation of AG Jeff Sessions so that he can be replaced by someone who could control Mueller’s supposed “witch hunt.”

Prong two is a transparent, but deeply dangerous, effort to divert attention from Mueller’s work by pressing for federal criminal investigations of Hillary Clinton, the Clinton Foundation, former members of the Obama Administration, and others who are either already recognized boogiemen to consumers of far-right media or, like James Comey, are persons whose reputation for probity threatens Trump.

I have previously deplored the willingness of the Republican members of the House Judiciary Committee to call for legally baseless investigations of Hillary Clinton and her campaign.  Such requests are corrosive of the rule of law inasmuch as they seek to politicize the criminal investigative apparatus of the federal government.  Worse, they undermine democracy itself by transforming elections into struggles to the death in which all tactics, however reprehensible, are justified by the imperative to avoid losing in an arena where losing could mean prison, or at least the crippling cost of endless investigations.

The latter consequence has now materialized for Secretary Clinton, as it was this week reported that the Justice Department has opened, or re-opened, investigations into the Clinton Foundation and perhaps the e-mail matter. In short, Jeff Sessions’ Department of Justice has folded under political pressure and in the process severely damaged its own institutional credibility.

Until this week, I was somewhat comforted by the relative restraint of Republican senators, some of whom had signaled opposition to any effort to fire Mueller or distort the ordinary professional judgments of the Department of Justice.  However, my tentative confidence in the relative rectitude of Republican senators was shaken this week when Senators Charles Grassley (R-Iowa) and Lindsey Graham (R-S.C.) made a formal referral to the Justice Department suggesting that criminal charges be brought against Christopher Steele, the former British intelligence agent whose consulting company assembled the famous dossier about Trump’s connections with Russia.

It is, to be frank, doubtful that the Justice Department will take serious action on this request.  But the mere making of it is plainly part of a larger strategy to diffuse the impact of the Mueller investigation, and to discredit Trump critics and sources of information about his Russian contacts. In short, at least some Republican senators are now joining in the deeply dangerous, profoundly corrosive tactic of using the Department of Justice as a pawn in the game of protecting Donald Trump.

Again, the dissonance between the mounting evidence of Mr. Trump’s unsuitability for the presidency and the increasing willingness of elected and appointed Republicans to undermine governmental institutions and democratic norms to protect him, and by extension the Republican Party, is stark.

A collision is coming.  I am not confident that the result will be a happy one.

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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