Opinion: An impeachment alternative for Greitens

Last edited 8:31 a.m., March 13, 2018

There are two Missouri historical precedents that state lawmakers might want to consider in dealing with the state’s first criminally indicted governor.

One was the only removal of a statewide elected official. The other was the only use of a constitutional process to replace a governor judged unable to discharge his duties.

Moriarty precedent
The first precedent involved the impeachment of Secretary of State Judy Moriarty. She had been convicted of back-dating her son’s filing for a legislative race after he missed the deadline. Gov. Mel Carnahan called a special session of the legislature for her impeachment.

There are some major differences between Moriarty’s situation and the potential impeachment issues now facing the Missouri House of Representatives involving Gov. Eric Greitens’ felony indictment.

Unlike Greitens, Moriarty was convicted before the impeachment process began. Another major difference was that, in the House investigation of Moriarty, witness testimony was completely open to the public.

Not so with Greitens. The chairperson of the investigation committee said witness testimony will be behind closed doors, and House rules give the chair power to censor the subsequent witness transcripts.

There’s an understandable sensitivity. Greitens’ indictment involves a charge of invasion of privacy involving a sexual incident in which the victim has sought anonymity. But keeping evidence secret denies Missouri citizens a full understanding about a House process involving the potential removal of the governor.

Another difference between Moriarty’s impeachment and the House investigation of Greitens is that Moriarty’s action occurred while she was in office. Greitens’ action under legislative investigation occurred before he was governor.

The disability board
The other precedent in Missouri’s history involving replacement of a statewide elected official provides an alternative to the path the House is now taking.

That precedent was set after the suspected death of Carnahan in a plane crash during his campaign for the U.S. Senate.

It led the state’s disability board, established by the Missouri Constitution, to declare the lieutenant governor to be the acting governor based on the constitutional provision giving the board authority to transfer the governor’s powers if it concludes that the governor “is unable to discharge the powers and duties of his office.”

One day later, Carnahan’s remains were confirmed and acting Gov. Roger Wilson became the state’s governor for the remaining months of Carnahan’s term.

A disability board approach is not as far-fetched as it might seem.

The initial announcement from House leaders after Greitens’ indictment raised the question as to whether the governor could lead because of the criminal case.

“We will carefully examine the facts contained in the indictment and answer the question as to whether or not the governor can lead our state while a felony case moves forward,” the three top House leaders announced.

As quoted by the St. Louis Post-Dispatch, Sen. Majority Leader Mike Kehoe voiced similar thoughts: “The news … causes me to question whether the governor has the ability to effectively lead the state going forward.”

Three of those legislators who expressed concerns about Greitens’ ability to lead while under indictment are members of the disability board. If those three legislative leaders truly believe there is a leadership issue, they could call for a board meeting to at least discuss the issue.

They constitute a sizable block on the nine-member disability board composed of the legislature’s four top leaders and all of the statewide elected officials – except the governor.

Once declared unable to discharge his duties, the constitution allows the governor to resume his office by declaring he’s capable.

But there’s a four-day delay in resuming office to allow the disability board to kick the question to the Supreme Court as to whether the governor is capable to discharge the powers and duties of his office. Such a Supreme Court hearing and decision would not be much different than the “seven eminent jurists” the Supreme Court dictates the Senate to select to make the final decision on impeachment.

This disability board process based on inability to govern would avoid pursuing permanent removal for something that occurred before the governor took office and for an indictment before a conviction. It would avoid the House committee having to investigate the seamy details of a sex scandal since the issue for the disability board would be limited to the leadership consequences of a felony indictment.

And that would avoid the need for the House investigation committee to violate the spirit of the open meetings law with hearings held in secret.

But it also would be a significant expansion of a provision – drafted not too many years after President John Kennedy’s assassination – that most likely was envisioned for medical disabilities.

Phill Brooks is director of the Missouri School of Journalism’s State Government Reporting Program. He has been a statehouse reporter since 1970, making him the dean of the Missouri statehouse press corps, and he manages the multimedia website on state government news, MDN.org. Brooks can be reached at column@mdn.org.