JEFFERSON CITY — No one in the Missouri Capitol seems to know what exactly is in store for Gov. Eric Greitens.
Until now, Missouri has never had an acting governor indicted on a felony. Nor has the state ever impeached a governor.
Former Gov. Jay Nixon, a Democrat, came close after Republican lawmakers filed three articles of impeachment against him in 2014, alleging he had signed an executive order that violated a constitutional amendment banning same-sex marriage, among other issues.
House leadership eventually dropped the charges after deciding Nixon’s actions did not merit impeachment.
While the Missouri Constitution clearly explains the processes of impeachment and succession, it doesn’t address at what point the governor is no longer capable of filling the role.
The uncertainty has lawmakers and leaders in the Capitol shrugging their shoulders in confusion.
However, a Missouri statute says that if convicted of a felony, Greitens would have to forfeit the office. But court rulings indicate that the Constitution trumps statute, which means that impeachment is the sole method for the legislature to remove a governor.
Missouri has had its share of legislative members who have been convicted, impeached or resigned. And governors in other states have been in high water like this, but criminal indictments against governors generally involve public corruption, which makes Greitens’ felony charge even more unusual.
What the law says
Greitens was indicted in February by a St. Louis grand jury for felony invasion of privacy after the court had reason to believe Greitens took and transmitted a nude photograph of a woman, whom he has confessed to having an affair with before he was governor.
While Greitens has not been found guilty by a court of law, House leaders announced last week a committee tasked to “investigate the facts” of the governor’s indictment.
Committee chairman Jay Barnes, R-Jefferson City, said the committee will decide what to do with the information after the reports are complete. The results will help the House know whether to file articles of impeachment.
Days later, the House unanimously approved the investigation and passed a resolution that gives the committee 40 days to investigate the allegations.
The committee’s deadline is the first week of April. If Greitens were to be removed from office, Republican Lt. Gov. Mike Parson would become governor.
Under Missouri law, it’s clear that a person convicted of a felony is not allowed to vote. But what about run the state?
The state Constitution only explains the impeachment process, including the powers granted to the House of Representatives in filing articles of impeachment. Usually, impeachment trials are heard by the State Supreme Court, but in the case of the governor, a panel of seven jurists would be chosen by the Senate to hear the case.
Impeachment, resignation and death are the only ways a governor can be removed from office in Missouri. The Constitution does not mention what should happen if an official were convicted of a felony.
Frank Bowman, a law professor at the MU School of Law, offered insight into the interpretation of state law that helped bridge the gaps left by the vague state Constitution.
Bowman pointed to a Missouri statute concerning forfeiture of office (562.021), which says a person holding office that is convicted of a felony must forfeit the office.
“Essentially what it seems to say is that you’re automatically out,” Bowman said, “which is why the prosecution in the St. Louis (city) circuit court is so consequential, because if he’s convicted of a felony there, he’s out regardless of what the legislature has to say about it.”
But Supreme Court rulings indicate that even with a felony, impeachment proceedings would be required to remove a governor. With this interpretation by the court, the forfeiture statute only applies to officials not subject to impeachment.
The statute also says it doesn’t have to be a felony. An elected official convicted of misconduct in office or dishonesty would also be forced to resign.
Because the extramarital affair the indictment stems from occurred before he took office, Greitens could not be charged with misconduct in office. However, the law’s definition of “dishonesty” is vague.
If Greitens were impeached, Bowman said he would immediately be removed from office.
“In the case of Missouri, I don’t think one could be impeached and remain in office,” he said. “The reason I think that’s the case is because the idea of removal is implicit in the whole process (of impeachment).”
The Constitution says punishment of impeachment “shall not extend beyond removal from office.”
Greitens could also be censured or remonstrated, which are more like a slap on the wrist.
In the case of former Secretary of State Judith Moriarty, one of only two statewide elected officials to be impeached in Missouri history, the Missouri Supreme Court held that the judges who try the articles of impeachment handed down by the House are not to make a political judgement of deciding what merits removal from office.
“All the judicial panel decides is if the defendant did the thing the House said he did,” Bowman said. “If the House impeaches and the judicial panel convicts, removal is automatic.”
A problem with Moriarty’s impeachment case as the state’s only precedent is that the court concluded that an impeachable offense has to be a violation of law. Bowman said this is a “very problematic holding” because some things in the Constitution that are impeachable are not violations of the law. For example, “habitual drunkenness” and “incompetency” are considered grounds for impeachment but are not illegal.
“It’s a mess in terms of trying to figure out whether generally disreputable, but not technically illegal, behavior is impeachable in Missouri,” Bowman said. “I don’t think we know the answer to that.”
Eight governors have been impeached and removed from office in U.S. history, though others have been accused of crimes or voluntarily resigned.
The most recent impeached state executive is former Gov. Rod Blagojevich of Illinois. The Illinois House of Representatives voted 117-1 to impeach Blogojevich in January 2009 after he was indicted on federal charges of abuse of power, followed by a unanimous Senate vote to remove him in the same month. Blagojevich, a Democrat, was also charged for trying to sell a vacated U.S. Senate seat after Barack Obama took office as president. Blagojevich’s impeachment proceedings took place before he was found guilty in a court of law.
In 1988, the Arizona House impeached former Gov. Evan Mecham after he served only 15 months in office. Mecham was convicted by the Senate, which removed him from office, for obstruction of justice and using state funds for his own personal use.
Six other governors have been forcefully removed from office:
- Gov. William W. Holden, North Carolina, Republican, 1871
- Gov. David Butler, Nebraska, Republican, 1871
- Gov. William Suzler, New York, Democrat, 1913
- Gov. James E. Ferguson, Texas, Democrat, 1917
- Gov. John C. Walton, Oklahoma, Democrat, 1923
- Gov. Henry S. Johnston, Oklahoma, Democrat, 1929
The state of Alabama has also had its fair share of gubernatorial criminal activity over the last few decades. Former Gov. Robert Bentley, a Republican, resigned in 2017 after a sex scandal. He pleaded guilty to personally using campaign contributions and failing to file a major contribution report. Impeachment hearings began on the day of his resignation. Bentley took office in 2011.
Also a former Alabama governor, Harold Guy Hunt resigned in 1993 after being convicted of illegally using inaugural and campaign funds, according to the National Governors Association website.
In 1997, Arizona Gov. John Fife Symington III was forced to resign after he was convicted of 21 federal counts of extortion, bank fraud and more. By Arizona law, any person of power convicted of a single felony is required to leave office.
Each case has included public corruption, not alleged blackmail stemming from a private relationship prior to taking office.
Crime in the Capitol
This is not the first time an elected official has been accused of a crime in Missouri. But in the state’s history, a governor has never been impeached, and only two governors have resigned.
The only statewide official to be impeached and removed from office was Secretary of State Judith Moriarty. Moriarty was accused of backdating her son’s filing for an election and was impeached in 1994, forcing her to resign from office.
Former State Treasurer Larry Brunk was impeached by the House, but acquitted by the Senate in 1931, according to Bowman. He was not removed from office.
Dating back to 1836, the first governor to resign in Missouri was Daniel Dunklin. Dunklin resigned to become the federal surveyor general for Missouri and Illinois under the Andrew Jackson administration.
The second was Trusten Polk. According to the Missouri Secretary of State archives, Polk resigned to become a U.S. Senator.
Although there hasn’t been much focus on the state’s executive until recently, there have been several lawmakers who have found themselves in political and legal trouble.
In 2013, Rep. Steve Webb, D-Florissant, resigned after being charged of theft of $3,000 in campaign funds.
Former Sen. Jeff Smith, D-St. Louis, resigned from the legislature in August 2009. Smith was convicted of two counts of obstruction of justice and was sentenced one year and a day in prison. The conviction stemmed from Smith’s failed attempt to win a seat in Congress in 2004, when he authorized a mail attack against his opponent. The mailers did not meet federal disclosure requirements, and Smith lied to both election officials and the FBI.
Another member to resign from office due to alleged criminal activity was Rep. Nathan Cooper, R-Cape Girardeau. Cooper, an immigration lawyer, pleaded guilty to immigration fraud in 2007 and released a statement on the same day that he was resigning from office.
The criminal cases of former Republican Speaker of the House Rod Jetton, Democratic Gov. Roger Wilson and Democratic Rep. Ray Salva, among others, took place after they left office.