Lawmakers are set to begin at the end of this week a process that could lead to Gov. Eric Greitens’ removal from office.
Yet the governor’s fate won’t be resolved for months.
Along the way, a litany of constitutional questions looms over the process, from whether a crime committed before taking office is an impeachable offense to exactly when the lieutenant governor could take over. Even the process itself has yet to be settled.
“It’s a continued distraction," said Rep. Nick Marshall, a Parkville Republican. "And it’s a continued division, not only within my party but within the state as a whole. I see it now, how it's dividing friends. It’s dividing families. It’s a big cause of division in this state. It’s sad to see.”
The Missouri General Assembly will convene in special session at 6:30 p.m. Friday — 30 minutes after the 2018 legislative session adjourns for the year — to consider whether to impeach Greitens.
Lawmakers will then have until June 17 to take action.
The House thinks it needs at least five days to hold a public hearing, introduce articles of impeachment and then debate impeachment. If legislators ultimately vote to impeach, the Senate would appoint seven judges to hold a trial to decide whether Greitens should be removed from office.
At that point, the timeline gets fuzzy. That panel of judges is required to meet in Jefferson City within 30 days of being appointed, but beyond that, there is no constitutional guidance on how quickly it must work.
Only one other Missouri official — former Secretary of State Judi Moriarty in 1994 — has been removed from office following impeachment. The process from Moriarty’s impeachment in the House to her removal from office took a little more than two months.
That means Greitens’ fate could remain in limbo into the fall.
Important questions remain unanswered not only about how the process will end but also how it will begin.
Two attorneys are working to help Greitens stave off impeachment, and they have met with House leaders to try to hammer out the details of the special session.
Ross Garber is an attorney and Connecticut resident who has previously defended three other governors facing impeachment proceedings: Robert Bentley of Alabama, Mark Sanford of South Carolina and John Rowland of Connecticut. Edward Greim is a Kansas City-based attorney working for the law firm of Missouri GOP Chairman Todd Graves. Both are being paid by the governor's office.
Garber and Greim want the process to resemble a court hearing, where attorneys on both sides can call and cross examine witnesses, issue subpoenas and make opening and closing remarks. They argue that will ensure both due process for the governor and bolster the confidence of Missouri voters.
The conventional wisdom has been that the House will treat articles of impeachment as it does any other bill, with a public committee hearing followed by debate and a vote by the full House.
Garber noted that only two governors have been impeached in the U.S. since World War II. The precedent the House sets during the special session, he said, will resonate for years to come.
"What happens today is going to impact all future governors," Garber said.
House Speaker Todd Richardson, R-Poplar Bluff, said the process will be "fair and open."
"As part of the investigation, there are elements of that that the committee has had to do privately," he said Thursday, "but as we move into the special session, things will be conducted in a very open and transparent manner."
A St. Louis grand jury indicted Greitens in February on a felony charge stemming from allegations that he took a nude photo of a woman with whom he was having an affair without her consent and threatened to release it if she revealed their relationship.
In her testimony to St. Louis prosecutors and to a Missouri House committee, the woman also has accused Greitens of coercive and violent sexual misconduct. She has not been publicly identified.
He’s admitted to the affair but denied any criminal wrongdoing.
The alleged crime for which Greitens will stand trial in St. Louis this week occurred two years before he took office, leading some to question whether it amounts to an impeachable offense.
The Missouri Constitution says elected officials can be impeached for “crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”
The “or oppression in office,” without a comma in front of it, has some legal scholars puzzled about what might constitute grounds for impeachment.
“A comma would have helped clarify things,” said Michael Wolff, a retired judge of the Missouri Supreme Court and former dean of St. Louis University Law School.
“The Constitution’s words don’t give a clear answer,” Wolff said. “It’s very dicey that something that Greitens did in the privacy of his own home two years before he took office is grounds for impeachment, as awful as those allegations are.”
Wolff says there’s an argument to be made either way on whether pre-office conduct can lead to impeachment, and “when there is ambiguity, judges tend to side with the defendant, with the person who is accused.”
Frank Bowman, a professor at the University of Missouri School of Law who has written extensively about the state’s impeachment process, argues that “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,” Bowman wrote, “no one would suppose that the governor couldn’t be impeached on that basis, even though the conduct occurred before he took office.”
Potentially alleviating those concerns are allegations that Greitens, as governor, knowingly filed false reports to the Missouri Ethics Commission, a class A misdemeanor.
Attorney General Josh Hawley’s office turned over evidence to Cole County Prosecutor Mark Richardson purporting to show that Greitens lied on a consent decree and on his campaign disclosure paperwork about how he obtained a donor list belonging to The Mission Continues, a charity Greitens founded in 2007.
Thus far the Cole County prosecutor has not indicated whether he will file charges. He did not respond to requests for comment by The Star.
The governor also was charged in St. Louis last month with felony computer tampering, which is essentially electronic theft, for allegedly stealing the donor list. He used the list to raise money for his 2016 campaign.
“Ultimately, all this will be decided by the seven eminent jurists appointed by the Senate to conduct this trial,” Wolff said. “Their decision is final. So however they interpret the Constitution, that’s the end of the line.”
Suspended from office?
It takes 82 votes in the House to impeach a governor. If all 47 Democrats in the House vote to impeach, then only 35 of the 114 Republicans would be needed.
Some are pointing to language in state law and the Constitution to argue that the moment the House votes to impeach, Greitens would be suspended and Lt. Gov. Mike Parson, also a Republican, would serve as acting governor until the seven judges resolve Greitens’ fate.
In that scenario, Parson would assume all powers of the office, including signing or vetoing legislation, appointing people to boards and commissions and making decisions about the state's $28 billion budget.
“Many in the media are saying the governor is not removed on impeachment,” Sen. Rob Schaaf, R-St. Joseph, tweeted last week. “The Constitution says he is.”
Schaaf is not alone in citing a provision of the Constitution stating that “on the death, conviction or impeachment, or resignation of the governor, the lieutenant governor shall become governor for the remainder of the term."
Additionally, a state law says that if an elected official is impeached, “he is hereby suspended from exercising his office, after he shall be notified thereof, until his acquittal.”
But both Wolff and Bowman point out that in 1994, the state Supreme Court made it clear that suspension is not automatic. The decision on whether Greitens would remain governor while he awaits his fate, they contend, would be up to the seven judges conducting his trial.
As for the constitutional language cited by Schaaf, Wolff says the word impeachment has been used by courts for both “the charge and for the ultimate judgment." It would make no sense, he said, for the lieutenant governor to become governor for the rest of the term after the House votes to impeach.
Bowman says the sensible way to read that provision is that “the governor stays governor until the impeachment process — House vote and judge vote — produces a final result.”
The constitutional questions don't end if Greitens is removed.
The state Constitution gives the governor authority to “fill all vacancies in public offices unless otherwise provided by law.” But a law states that when there is a vacancy in an elected office “other than in the offices of lieutenant governor, state senator or representative, sheriff or recorder of deeds in the city of St. Louis, the vacancy shall be filled by appointment by the governor.”
How to fill a vacancy in the lieutenant governor's office is not laid out in the Constitution, and thus the legal ambiguity.
When Democratic Gov. Jay Nixon was in office, Republican lawmakers were adamant that the governor didn’t have the constitutional authority to appoint a successor should the office of lieutenant governor become vacant.
The GOP tried to pass legislation that would have required that a new lieutenant governor be selected during the next general election, with an aide for the departing officeholder handling duties in the meantime.
Nixon vetoed the measure, arguing that the governor does have authority to appoint a lieutenant governor.
No similar legislative effort has been undertaken since Greitens was elected.
The most recent lieutenant governor vacancy arose in 2000 when Democratic Lt. Gov. Roger Wilson became governor after the death of Mel Carnahan. After the election that year, Wilson appointed just-elected Democratic Lt. Gov. Joe Maxwell to start early.
Ultimately, Wolff said, the whole process is “a great civics lesson.”
“You have a constitution that doesn’t spell out every detail. It has major ambiguity. It will be interpreted by a bunch of human beings. It’s a process that will produce a decision that we all will ultimately live with. It will be a civil process, and no one is going to go into the streets with guns. It’ll be an orderly process. I think it’s terrific.”