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State Politics Wed Dec 31 2008

Illinois Constitution, History Offer Impeachment Guidelines

Impeachment is only a legal statement of charges, analogous to a criminal indictment. The Illinois House investigative committee is currently trying to decide what suffices to send this to the Illinois Senate for trial.

Statements to the effect that Illinois has "no standards" for impeachment wrongly suggest unbridled legislative discretion. Few impeachment statutes offer bright line tests. But Illinois has a constitution and a long history of due process. Even the constitution's vaguest clauses did not arise in a vacuum. A basic principle of constitutional construction is to look at the document as a whole so as to exhibit some consistency. Besides the clause empowering the House to impeach, numerous other provisions, as well as an historical look at impeachment, provide some guidance. I'd argue that some functional equivalent of "high crimes and misdemeanors" be applied. Based on evidence I've seen so far -- and none of us have seen it all, as Mr. Genson correctly reminds us -- that standard can likely be met.

Article I, Sec. 2 of the Illinois constitution states, "No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws." Workers have property interests in their jobs. While the governor has a public trust, he also has a job. Even the governor is entitled to due process and equal protection, and that should apply in impeachment proceedings as well as in courts.

Article IV, Sec. 14, constrains trial by the Senate (upon impeachment by the House) by the requirement "to do justice according to law." Again, the panoply of what constitutes "justice" and "law" in Illinois form a backdrop. To argue that there are no standards, that either legislative body can simply do whatever a majority wants, is to pretend that Illinois has no jurisprudence.

The statement in the same section that "an impeached officer, whether convicted or acquitted, shall be liable to prosecution, trial, judgment and punishment according to law" suggests that an impeachable offense is commonly one that would also warrant criminal prosecution. It does not limit impeachment to such offenses.

Article V, Sec. 8 says, "The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws." Wielding lawfully given executive power, even in a way that disappoints or infuriates the legislative branch, is not an impeachable offense. Article II, Sec. 1 provides a caution to the same effect: "No branch shall exercise powers properly belonging to another." Article, XIII, Sec. 2 furthermore says that a branch of state government may "establish and enforce ethical standards for that branch" (emphasis supplied). By inference, the legislature cannot establish and enforce ethical standards for the executive branch. These three clauses indicate that the legislature cannot use impeachment as a way to substitute its judgment for the executive's.

Article V, Sec. 10 allows the Governor to remove an appointee for "incompetence, neglect of duty, or malfeasance in office." It's hard to imagine that impeachment could be for less cause than removal of one's own appointee. On the contrary, since impeachment overturns the judgment of the electorate, but appointees are discretionary, impeachment should require more.

Where the governor seems most vulnerable is Article, XIII, Sec. 3, which requires state officers to "support the Constitution of the United States, and the Constitution of the State of Illinois, and ... faithfully discharge the duties of the office." Note that Article V, Sec. 21 indicates that getting extra "compensation" for gubernatorial "services" would be a violation of the state constitution; thus seeking to obtain such compensation would be an attempt to subvert the state constitution.

Article, XIII, Sec. 1 holds that "A person convicted of a felony, bribery, perjury or other infamous crime shall be ineligible to hold an office created by this Constitution." Thus some distinction is made between infamous and vanilla transgressions.

Taken as a whole, and considered against case law comparing the state constitution to its federal counterpart, the touchstone of the document on its face seems to be one of law, with multiple suggestions that removal from office should be a consequence only of a serious breach rather than political disagreement. Neither arrest nor indictment should necessarily suffice, lest we give any state's attorney the power to paralyze Illinois' chief executive. Nor should mere misbehavior, especially in the personal sphere.

A 2004 report to the Connecticut House committee considering standards for the impeachment of then-Gov. John G. Rowland advised that that body should find ''clear and convincing'' proof that the governor's actions were ''injurious to his or her office or to society" -- although even that last clause has some awfully wide wiggle room.

The 1974 (U.S.) House Committee staff report on standards for impeachment supplies a good historical narrative going back to 1789. The focus of the framers, even with their "high crimes and misdemeanors" language, was on abuse of power or abuse of the public trust, and they recognized that impeachment was political in the sense of being a power exercise.

Impeachment is a drastic political remedy, time-consuming, and costly both to public confidence and the public purse. All the arguments by recall opponents against the potential abuse of that remedy should apply doubly to impeachment. A voters' decision shouldn't be overturned by legislative coup. A legislature is rarely an impartial jury, and should neither duplicate nor inadvertently subvert a criminal prosecution.

This is serious precedent. Our legislature should erect high standards. Despite the lack of such words in the state constitution, the House committee should essentially write in the equivalent of "high crimes and misdemeanors," with an understanding that some fundamental abuse of the power of the office must usually be at stake. Upon impeachment, something higher than a mere "preponderance of the evidence," albeit short of "beyond a reasonable doubt," should be required for conviction.

Should it be convincingly shown that this governor did in fact establish a systemic pay-to-play regime, utilize a "$25,000 Club" by which appointments or contracts or other favors were doled out, or attempt to sell Sen. Obama's senate seat for personal benefit, impeachment and conviction would be warranted even with the higher standard urged by Gov. Blagojevich's legal team.

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Leonard Saphire-Bernstein / January 15, 2009 4:19 PM

Thanks for your intelligent and reasonable analysis. Let's hope that fairness, a decent respect for process, and perspective keep the impeachment trial from turning into an emotional circus. We should avoid judging on the basis of an indictment and arrest, and even wild, foolish, or craven talk, in private, may not fairly constitute an impeachable offense. Let's see what the governor did. I think your conclusion is fair, and reminds us that if the allegations cannot be substantiated, the governor's election should not be cancelled by a ravening mob, however much the electorate, or other elected officials, regret the election or dislike the governor.

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