Capitol Perspectives 8/19/21

August 19, 2021

Headline: Capitol Perspectives: Impeaching Governors [Entered: 08/19/2021]

By Phill Brooks

New York Gov. Andrew Cuomo's recent resignation following allegations of inappropriate behavior with women staffers offers some interesting similarities but also contrasts with the resignation of Missouri Gov. Eric Greitens who faced allegations of inappropriate behavior with a woman.

Both resigned while facing likely impeachment.

But the constitutional grounds for impeachment are quite different between the two states.

Missouri's Constitution lays out specific grounds for impeachment -- "crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office."

The wisdom of Missouri's constitutional writers to include "crimes" was demonstrated by the ability of the Missouri House committee to go beyond just a sordid sex scandal.

In fact, the impeachment investigation evaporated after Greitens resigned in 2018 after a plea deal to avoid prosecution for theft of email addresses from a non-profit organization he created to use the addresses in his campaign for governor that also had been part of the impeachment inquiry.

Beyond that, the phrase "incompetence" would allow impeachment of a public official who did nothing legally wrong, but simply was unable to fulfill the responsibilities of the office.

New York's Constitution is far less detailed. It does not include any specific specific grounds for impeachment.

Rather, it uses the vaguely defined term "of malversation" in the definition of "misconduct."

Some legal scholars have suggested that is so vague that it could include anything New York's lawmakers decided to pursue.

The U.S. Constitution is much more specific. Impeachment is limited to "treason, bribery, or other high crimes and misdemeanors."

But all those two constitutional provisions raise a significant question.

These provisions are not limited to conduct while in office. So, is a misdemeanor speeding ticket by a president in his youth grounds for impeachment?

For Cuomo, Pres. Donald Trump and Pres. Richard Nixon the central impeachment charges did involve activities while in office.

For Cuomo it involved harassment of female office staffers.

For Nixon, the charges included a variety of allegations while he was president including efforts to cover up the his campaign's break-in of the Democratic headquarters in the DC Watergate building.

However, the Missouri House impeachment committee investigation of Eric Greitens covered activities before he became governor.

The alleged sexual assault was well before he took office. And the alleged theft of a non-profit organization's email address records involved his efforts to get elected as governor, but before he was governor.

You might wonder whether an actual conviction should be required to impeach a president or governor. But remember, presidents and governors have the power to pardon themselves at any time and, thus, avoid a criminal conviction.

This history raises a question as to whether the constitutions of the United States, Missouri and New York are somewhat akin to the British parliamentary system rejected by our founders in which a parliament easily can replace a government leader -- as Britain's Prime Minister Theresa May discovered after lossing support of Parliament while seeking a deal to exit the European Union.

These questions suggest that legislators should be explicitly clear in answering questions as to how an impeachment investigation actually involves performance in office.

For both Cuomo and Nixon there was an obvious connection with performance in office.

Greitens' case, however, strikes me as the less clear.

Missouri's Constitution uses the term "in office" twice in defining actions that are subject to an impeachment investigation.

Yet, the two charges investigated by the House committee occurred before he took office -- sexual assault and theft of non-profit email addresses.

In fact, the only time a statewide official was impeached by the House and removed from office by the state Supreme Court the charge directly dealt with office performance.

It was in 1994 after Secretary of State Judy Moriarty was convicted for back-dating her son's filing for elective office -- a clear violation of the " office" constitutional provision.