Conviction wouldn't equal loss of job

Regardless of verdict, legislative action required to impeach Greitens

Missouri Gov. Eric Greitens, top, arrives at court for jury selection in his felony invasion of privacy trial, Thursday, May 10, 2018, in St. Louis. Greitens is accused of taking an unauthorized and compromising photo of a woman with whom he had an affair. (David Carson/St. Louis Post-Dispatch via AP)
Missouri Gov. Eric Greitens, top, arrives at court for jury selection in his felony invasion of privacy trial, Thursday, May 10, 2018, in St. Louis. Greitens is accused of taking an unauthorized and compromising photo of a woman with whom he had an affair. (David Carson/St. Louis Post-Dispatch via AP)

Previous coverage of Greitens investigations


Twice in the last two weeks, Missouri senators talked about how to appoint someone to serve as lieutenant governor, if current Lt. Gov. Mike Parson becomes governor.

And on Friday, they added language to a House bill, giving the governor the authority to fill a vacancy in the lieutenant governor's office, with the Senate's advice and consent.

On a 26-3 vote, that bill was sent back to the House, which can accept the changes this week or ask the Senate for a conference committee to work out a compromise on the different versions of the bill passed by the two chambers.

The Legislature's regular session must end at 6 p.m. Friday.

When he introduced the lieutenant governor language May 2, Sen. Rob Schaaf, R-St. Joseph, told colleagues: "I think that, at this time in history, we need to be prepared."

And Senate President Pro Tem Ron Richard, R-Joplin, told reporters Friday afternoon: "I think that (senators) wanted certainty about how it would be.

"The feeling is that that's the proper way to do it."

The vote came at the same time as lawyers for Gov. Eric Greitens and for the St. Louis Circuit Attorney's office were working to pick jurors for the governor's trial this week in St. Louis on a felony invasion of privacy charge.

If he's convicted of the Class D felony charge, Greitens could be sentenced to up to four years in prison.

On Feb. 22, a St. Louis grand jury indicted Greitens on a charge of taking a photograph of a woman, without her permission, while she was at least partially nude, bound and blindfolded - and taking that picture in a way that it could be shared with a computer.

The incident reportedly occurred in March 2015 - before Greitens launched his campaign for governor - in the basement of his St. Louis home.

The governor has admitted to being involved in an extramarital affair with the woman, but has denied doing anything illegal or criminal.

Greitens also has said Missourians will learn "the truth" during this week's trial, which he also has said is part of a "political witch hunt" to force him out of the office people elected him to serve in.

And some believe a guilty verdict would force the governor to leave his office immediately.

But, even if the jury were to convict him in this week's trial, Greitens would not be forced out of office immediately.

Missouri law says any person "holding any public office, elective or appointive, under the government of this state or any agency or political subdivision thereof, who is convicted of an offense shall, upon sentencing, forfeit such office if he or she is convicted under the laws of this state of a felony."

That law also says the office is forfeited "upon sentencing."

But Missouri courts almost never impose a sentence right at the end of a criminal trial.

In most cases, when a person is found guilty of a crime, the state's Probation and Parole staff conducts a number of interviews and prepares a "sentencing advisory report" to help the judge determine what the appropriate sentence should be.

That report is not a public document - it is shared only with the prosecution and defense lawyers, the defendant, the judge and the P&P staff.

But Missouri's Constitution says the governor doesn't forfeit his office, even if he's convicted and sentenced.

It says: "Except as provided in this constitution, all officers not subject to impeachment shall be subject to removal from office in the manner and for the causes provided by law."

And the governor is one of the offices "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 other offices where impeachment applies are "all elective executive officials of the state, and judges of the supreme court, courts of appeals and circuit courts.")

The Missouri Supreme Court has ruled twice - in 1930 and again in 1995 - that the impeachment process is the only way Missouri's statewide elected officials can be removed from their offices.

In 1930, then-State Treasurer Larry Brunk was accused of financial malfeasance, and there was an effort to remove him from office without asking the House to impeach him.

In a unanimous decision in a case known as Shartel v. Brunk, the Supreme Court ruled: "The Constitution clothes the Legislature with sole power of removal by impeachment proceedings, and it cannot strip itself of that constitutional authority or lodge it elsewhere."

Even though the high court generally is considered "a court of last resort" whose decisions are final and conclusive, the court said, any decision it reached in the Brunk case would not have been final, because he still would be "subject to be removed from his office by the Legislature."

And that scenario, the court ruled, "clearly demonstrates that we have no jurisdiction to finally adjudicate the question of his removal, and the statute which attempts to invest us with such jurisdiction (violates) the constitutional provisions which lodge such jurisdiction elsewhere."

After that ruling, the Missouri House approved articles of impeachment on Brunk - and he was tried, and cleared, by the Missouri Senate, where he had served before becoming treasurer.

A decade later, as Missourians wrote a new constitution to replace the one written in 1875, they took the impeachment trial process away from the Senate and gave it to the seven-judge Supreme Court, with two exceptions - in the case of impeachment articles against the governor or a Supreme Court judge, the trial is held by a commission of seven "eminent jurists" chosen by the state Senate.

In 1994, then-Secretary of State Judi Moriarty was charged with falsifying official paperwork to list her son as a state representative candidate when he had not filed his paperwork in-person by the filing deadline, as required.

After she was convicted of that misdemeanor charge in the Cole County Circuit Court, the House approved impeachment articles against her, and the case was tried by the Supreme Court.

But, then-Attorney General Jay Nixon attempted to force Moriarty out of office through a statutory process called "quo warranto," which the Supreme Court described as "a special procedure utilized to permanently remove or oust a person from public office."

Nixon cited a state law that's been in effect since Aug. 28, 1945: "If any officer shall be impeached, he is hereby suspended from exercising his office, after he shall be notified thereof, until his acquittal."

But the high court ruled the law didn't apply to the statewide elected officials, reaffirming its 1930 decision in the Brunk case that impeachment is the sole method for ousting a statewide officeholder.

"The office of Secretary of State exists pursuant to the Constitution of Missouri and is designated as an office in the Executive Department," the Supreme Court ruled in the case known as "Nixon v. Moriarty."

Noting the secretary of state has a four-year term set by the Constitution and "serves in this manner at the pleasure of the people of Missouri," the court said the Constitution specifies that the statewide office holders hold their offices for the specified terms "except as provided in this constitution, and subject to the right of resignation."

That means "the single method provided in the Constitution for removal from office of statewide elective executive officials, such as the Secretary of State, is impeachment," the court said, adding: "The plain reading of these sections of the Constitution can allow only one conclusion. Elective executive officials may be removed from office solely and exclusively by impeachment while any other officer may be removed in a manner provided by law - (and) the legislature is without authority to enact statutes that automatically provide for the removal from office of any elective executive official of the state."

The Supreme Court also ruled in 1995 that it did have the power to suspend Moriarty temporarily, pending her impeachment trial - but that she still kept all the benefits of her office, including her salary, during that impeachment trial process.

The court didn't say - because it wasn't an issue in the Moriarty case - whether that same suspension power would apply to the seven-judge commission chosen to try a governor or Supreme Court judge on impeachment articles.

Richard told reporters Friday that he hasn't studied that question either, nor has he determined whether the bill sent back to the House about filling a lieutenant governor's vacancy would be constitutional.

Missouri's Constitution provides a detailed list of who becomes governor if there's a vacancy in the governor's office - the lieutenant governor and then, "if there be no lieutenant governor," the Senate president pro tem, the House speaker, the secretary of state, the state auditor, the state treasurer and the attorney general, in that order.

The Constitution does not provide for a similar order of succession for the lieutenant governor.

The state law that gives the governor power to fill vacancies in office specifically excludes "the offices of lieutenant governor, state senator or representative (and) sheriff, or recorder of deeds in the city of St. Louis" from that power.

The Legislature has called itself back into a 30-day special session, to begin at 6:30 p.m. Friday, to decide whether the House should consider articles of impeachment against Greitens.

If the House approves impeachment articles for the governor, then at least five of the seven judges chosen by the state Senate to hold the impeachment trial would have to agree in order to remove Greitens from office.

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