Tag Archives: pre-office 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 8 (More on impeachment for pre-office conduct)

24 Tuesday Apr 2018

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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.