LePage is wrong to say impeachment requires prior court action

Gov. Paul LePage. Mario Moretto | BDN

Gov. Paul LePage. Mario Moretto | BDN

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.

While the discussion on the radio today referred to “high crimes and misdemeanors,” this is not the language in the Maine Constitution.

 

Instead, Article IX section 5 states, “Every person holding any civil office under this State, may be removed by impeachment, for misdemeanor in office.”

 

Like the U.S. Constitution, the word “misdemeanor” appears and it may again refer to abuse of power.

 

Frankly, it is unclear what this means and seems even more vague than the federal provision. Someone who knows more about the history of the Maine Constitution and any uses of its impeachment provision may have more insight than I can bring to bear.

 

However, there is a clue that suggests that no prior court action would be required.

 

Third, both the federal and Maine constitutions note that impeachment may be followed by court action.

 

 Here are the relevant parts of these constitutions, with the key language bolded:

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.

As you can see, both say that the person impeached is still “liable to indictment, trial, judgment and punishment according to law.” Thus both constitutions are explicit that court actions can come after an impeachment. There is no requirement they come first.

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.

Right now, my impression is that an impeachment is unlikely, but it is more possible that the governor will face a legislative sanction or rebuke of some sort that focuses, as impeachment would, on an abuse of power.

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Amy Fried

About Amy Fried

Amy Fried loves Maine's sense of community and the wonderful mix of culture and outdoor recreation. She loves politics in three ways: as an analytical political scientist, a devoted political junkie and a citizen who believes politics matters for people's lives. Fried is Professor of Political Science at the University of Maine and the faculty advisor to the UMaine College Republicans. Fried's views are her own and do not represent those of her employer or any group to which she belongs.