Special session and possible impeachment

Missouri Gov. Eric Greitens held a news conference Wednesday, April 11, 2018, in his Capitol office in Jefferson City ahead of the House investigatory report released shortly afterward.
Missouri Gov. Eric Greitens held a news conference Wednesday, April 11, 2018, in his Capitol office in Jefferson City ahead of the House investigatory report released shortly afterward.

Previous coverage of Greitens investigations


There's one thing almost everyone at the Missouri State Capitol has agreed on: Lawmakers and the state as a whole are facing uncharted territory when it comes to discussing or considering the possibility of impeaching Gov. Eric Greitens.

For the first time in history, Missouri lawmakers have called themselves into a special session "for the sole purpose of considering the findings and recommendations" of a special House committee formed in February to study Gov. Eric Greitens' legal situation, "including but not limited to, disciplinary actions against" the governor.

House Speaker Todd Richardson, R-Poplar Bluff, told reporters last week: "The power to discipline elected officials is the most serious of legislative powers."

Richardson was asked if the special session means Greitens will be impeached.

Missouri's Constitution says: "All elective executive officials of the state, and judges of the supreme court, courts of appeals and circuit courts shall be liable to impeachment for crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office. The house of representatives shall have the sole power of impeachment."

The Constitution says the only punishment for a conviction of impeachment is "removal from office," but a conviction of an impeachment charge "shall not prevent punishment of such officer by the courts on charges growing out of the same matter."

As of this weekend, impeachment - having the House actually charge the governor with one or more of those listed reasons - is not a sure thing.

Greitens is facing two separate felony charges in St. Louis, with the first set to go to trial next week.

In that case, a grand jury indicted him for felony invasion of privacy, accusing him of taking a picture of a woman in March 2015 - identified as his former hairdresser with whom he had been having an extramarital affair - without her permission, while she was at least partially nude, bound and blindfolded, and having that picture available to a computer.

The charge is a Class D felony and, if there's a conviction, carries a maximum punishment of up to four years in prison.

Greitens has admitted to having an affair but denied any criminal wrongdoing.

The second case - also a Class D felony - accuses the governor of theft from a computer for taking donor and email lists from The Mission Continues, the charity Greitens helped found in 2007, and using the information in those lists to raise around $2 million during the early days of his eventually successful campaign for the governor's office.

Greitens stepped down as the charity's CEO in summer 2014 then left its board of directors in August 2015.

He had access to the information while working with the charity, but its current officials said he never was given permission to use the lists for political purposes.

Greitens has denied any wrongdoing in that case, as well.

Richardson formed the seven-member House Special Investigative Committee on Oversight after the St. Louis grand jury issued its invasion-of-privacy indictment Feb. 22 and charged the committee with looking into the governor's legal situation and making any recommendations for future actions to the full House.

The panel - chaired by state Rep. Jay Barnes, R-Jefferson City - has been meeting in closed sessions since early March, interviewing a number of people connected with the two cases and reviewing thousands of documents.

The committee has issued two major reports and a supplement to the first report but still has people to interview - including representatives of the governor's campaign organization - before it decides what its recommendations might be.

With only two weeks left in the General Assembly's regular session - which must end at 6 p.m. May 18 - Richardson told reporters last week that having the special session "means that the committee will have the time it needs to finish the charge we gave it from the beginning - which is to conduct a fair, thorough and timely investigation, and to report back to the House of Representatives any recommendation that it has."

Although special sessions called by the governor can last up to 60 days, the limit is 30 days when lawmakers call themselves back to work.

In his weekly column, state Sen. Mike Kehoe, R-Jefferson City, said: "I find it embarrassing that the state is in this position. I absolutely believe that the governor should have the opportunity to share his side of the story (but) the state cannot afford to have its chief executive's attention focused on two felony indictments and trying to salvage two more years in the Governor's Mansion."

The House committee includes three lawyers - Barnes, Kevin Austin, R-Springfield, and Gina Mitten, D-Richmond Heights - and late last month added former state Supreme Court Chief Justice Edward D. "Chip" Robertson and former Pettis County Prosecutor Mark Kempton as special counsel.

Barnes and Robertson declined requests to be interviewed for this story.

The House impeachment process

House Communications Director Trevor Fox told the News Tribune on Friday that Richardson's charge to the committee gives it the leeway to recommend anything from no action to impeachment. Under existing House rules, the committee would draft any articles of impeachment if that's the route its members decide to recommend.

House Rule 64-3 says: "Articles of impeachment shall only be introduced by the committee designated to investigate the matter and shall be read by title on three separate days."

Although final details haven't been worked out, Fox said, the proposed articles would be "treated like a bill, and most likely treated as one of our committee bills, which means the articles would be produced, distributed, and heard in committee. They would be introduced and first read upon the committee's report.

"There would be no referral to another committee in this process," if that's the process that finally is chosen, he said.

As with any other bill, at least 82 representatives would have to vote for articles of impeachment for them to become official.

The Senate's role if impeachment is approved

The Constitution requires two different procedures if the House approves impeachment articles.

"All impeachments shall be tried before the Supreme Court," it says - unless the official named in the articles is the governor or a Supreme Court judge.

In that case, Missouri's Constitution requires the governor or Supreme Court judge to "be tried by a special commission of seven eminent jurists to be elected by the Senate."

If the House were to impeach Greitens during its special session, state law says it "shall transmit such articles of impeachment to the Senate who shall, without delay, proceed to the election of a special commission to try such impeachment."

The law says those jurists must "at the time of their election (be) judges of the circuit or appellate courts of this state" and cannot be from the Supreme Court.

With the Constitution and state law excluding the Supreme Court from the process, court officials declined to comment on the situation.

Senate President Pro Tem Ron Richard said last week the Senate is "ready to do (its) constitutional duty" if the House decides to impeach, but he and other Senate leaders have made no decisions about choosing the judges.

Jonathan Lorenz, head of the Senate Communications office, said: "Only the Missouri Constitution and state statutes give direction to the Senate regarding the selection of the seven jurists. The Senate has no policies regarding the selection of the jurists."

The impeachment trial commission

State law says once the judges are elected by the Senate, they must meet in Jefferson City "within thirty days after their election, on a day designated by the Senate."

At that meeting, they are to elect a president and secretary of their commission, issue a summons to the "accused" with a copy of the impeachment articles attached, and designate a date 20-30 days after the summons is served for the accused to appear and answer the charges.

Like any court trial, the lawyers for the officeholder being impeached are given time to file answers to the impeachment charges, and the lawyers representing the House have time to reply to those answers. Depositions are also allowed "where the witness is unable to attend (the trial) from sickness or other infirmity, or where the witness is (outside) the state."

The law doesn't say where the trial should be held, but it requires the seven commission members to take an oath or affirm that they will "impartially try and determine the charges and to do justice according to the law and the evidence" before the trial begins.

The law says the judges on the commission are to apply civil trial rules of evidence, which is a less-strict standard than a criminal trial's "beyond a reasonable doubt," and the commission members are to "determine all questions of law arising during the trial upon the admissibility of evidence (and) the competency of witnesses."

They also may "punish any person for contempt committed toward" the commission, "or for obstructing the administration of justice" during the impeachment trial, just as state law allows for any regular judicial proceedings.

Five of the seven judges must agree in order to convict the accused and require that they be removed from the office.

The commission members are to be paid no more than $10 a day "for actual and necessary expenses incurred in the performance of (their) duties," the law says, but they don't receive any other compensation above their regular pay.

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