In speaking on WVOM this morning, Gov. LePage talked about a potential impeachment action.
After first saying impeachment should go forward “so the truth can get out,” the governor changed his position and tied an impeachment action to court action he’s facing regarding withholding funds to thwart a private organization’s hiring of Speaker of the House Mark Eves. The specific court action is a federal civil lawsuit.
Speaking about the Legislature, the governor said:
What they need to do is, they need to either back down and not do anything until the federal lawsuit is to be determined. If I lose, then they have grounds. If I don’t lose, then they don’t have grounds.
This discussion also pointed to “high crimes and misdemeanors” as the standard for impeachment, which is in fact part of the U.S. Constitution’s impeachment provision, and not Maine’s Constitution. That provision also includes treason and bribery.
But there are some problems with this understanding of impeachment.
First, “high crimes and misdemeanors” has not been understood to require any prior court action.
Neither President Andrew Johnson or Bill Clinton were found guilty in a civil or criminal court before being impeached by the U.S. House of Representatives. (Neither were convicted and removed by the U.S. Senate.)
Regarding crimes in particular, a report from the Congressional Research Service notes:
Impeachable conduct does not appear to be limited to criminal behavior.
Congress has identified three general types of conduct that constitute grounds for
impeachment, although these categories should not be understood as exhaustive: 1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain. [source]
Historical background for why impeachment involves abuses of power lies in the fact that the language was originally “high crimes and misdemeanors against the state.”
The latter phrase — “against the state” — was removed by the Constitutional Convention’s Committee on Style because it was deemed redundant.
As that same Congressional Research Report notes:
Alexander Hamilton, in justifying placement of the power to try impeachments in the Senate, described impeachable offenses as arising from “the misconduct of public men, or in other words from the abuse or violation of some public trust.
Gov. LePage is not facing any criminal action, but there is no precedence for impeachment in the federal system requiring a civil court being settled either.
Second, the Maine Constitution doesn’t require a prior court action either.
Maine Constitution: The Senate shall have the sole power to try all impeachments, and when sitting for that purpose shall be on oath or affirmation, and no person shall be convicted without the concurrence of 2/3 of the members present. Their judgment, however, shall not extend farther than to removal from office, and disqualification to hold or enjoy any office of honor, trust or profit under this State. But the party, whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment according to law.
U.S. Constitution: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
If the Maine Legislature were to pursue impeachment against LePage, there appears to be no constitutional reason why they would have to wait for a court action to be completed.
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