Impeaching Fairfax May Not Be Legal, But It Might Be Best

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Impeaching Fairfax May Not Be Legal, But It Might Be Best; Procedure is For Wrongdoing in Office, But It Could Provide Hearing Most Want 

WASHINGTON, D.C.  (February 9, 2019) –  Although at least one Virginia lawmaker has threatened to introduce articles of impeachment on Monday if Lieutenant Governor Justin Fairfax does not step down, it appears that the remedy of impeachment is available only for wrongdoings allegedly committed while an official is in office, notes public interest law professor John Banzhaf.

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However, suggests Banzhaf, an impeachment investigation, including public hearings, might be best for everyone: e.g.,  Professor Vanessa Tyson has said that she would cooperate with such an investigation; the Virginia Republican Party has called for a thorough investigation; it would avoid the awkwardness of prominent Democrats having to call for his resignation without any opportunity for him to effectively refute the charges; and Fairfax himself has demanded one.

Indeed, in claiming that the charges against him are "demonstrably false," he seemingly suggests that he will be able to disprove them if only he is given an opportunity to do so. "Demonstrably" is variously defined as capable of being proved, demonstrable incontrovertibly or beyond the possibility of doubt, etc.

So Fairfax is seemingly promising not just that he will deny the accusations under oath or explain them away; he is asserting that he has clear and incontrovertible proof of his innocence.

If he in fact has such proof as he claims, it is hard to argue that he should not be able to present it in an appropriate hearing, even if it cannot lead to an impeachment.  Moreover, his words suggest that he would not object to such an investigation, despite having possible legal arguments against it.

In any event, impeachment of any official in Virginia would appear to be contrary to the clear language of the State's constitution, as well as to national precedent, suggests Banzhaf, who published a similar legal analysis regarding the possibility of impeaching President Trump or Governor Northam.

Section 17 of Article IV of the Virginia constitution provides that for "offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor [the governor or several other officials] may be impeached by the House of Delegates."

Several phrases in this standard make it clear that it applies only to actions or inactions during an official's term of office, and in any event would not apply to whatever occurred while Fairfax was a student or shortly thereafter, says Banzhaf.  For example, the constitutional standard for impeachment begins with the phrase "offending against the Commonwealth by . . ."

This implies that the acts must have occurred while the person was a governmental official, since it hard to see how a private citizen - much less a student - could offend against the state of Virginia.

In other words, it appears that the phrase "offending against the Commonwealth by . . ." applies to all of the following terms, including "corruption," "high crimes . .," etc.

Indeed, the very next phrase - "malfeasance in office" - supports that analysis, and likewise also limits the standard for impeachment to acts done "in office."

Moreover, in determining the meaning of words in a statute, courts rely upon a maxim of construction which says that, where there is a list of items, each and every one should usually be construed to be similar to the others, and not clearly different, unless such intent is made plain from the choice of words.

So the words "in office" probably should apply to the other impeachment standards as well.

This construction - that all of the standards for impeachment apply only to actions taken while in office - is strengthened and repeated in another standard: "neglect of duty."  Office holders have a variety of duties, but the concept usually is not applied to ordinary citizens, although technically everyone has a duty not to speed, not to murder, to pay taxes, etc.

Still another word in Virginia's standard for impeachment is "corruption."

That word likewise seems to apply to actions taken while a person is holding some kind of office of trust - in the government or non-governmental entity - but not to wrongful sex acts allegedly engaged in long before, and having nothing whatsoever to do with, taking office.

The final phrase in Virginia's constitutional standard - "high crime or misdemeanor" - would, if standing alone, apply to the alleged sexual wrongdoings, since both would constitute high crimes.

However, according to the canon of construction noted earlier - that it should be construed in a fashion similar to the other phrases in the impeachment standard - it would apply only to actions taken during his term as attorney general.

Although the impeachment language in the Virginia and U.S. constitutions are not identical, they are similar, and both probably reflect in different words that the purpose of impeachment is to remove someone who has behaved improperly while in office, and not to punish someone for transgressions alleged to have occurred years (or even months - as in the case of Trump) before he assumed office.

Although the issue is not crystal clear in the U.S. Constitution, there is strong precedent that a sitting president can be impeached - and removed from office by impeachment - only for wrongdoings committed while in office.  Consider the impeachment of Vice President Schuyler Colfax.

While considering his impeachment, the House Judiciary Committee concluded that impeachment "should only be applied to high crimes and misdemeanors committed while in office and which alone affect the officer in discharge of his duties as such, whatever may have been their effect upon him as a man, for impeachment touches the office only and qualifications for the office, and not the man himself."

Indeed, according to a study by the Congressional Research Service, Congress has identified three types of conduct that constitute grounds for impeachment, and all require that he already be in office.

These categories, which may not be exhaustive, include: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.

In short, for impeachment, what is apparently necessary is some presidential  action that counts, in Alexander Hamilton's words, as "the abuse or violation of some public trust," and not even more serious crimes and other wrongdoings which may have occurred prior to the time he assumed office.

While there is some precedent apparently to the contrary, it seems to be clearly distinguishable, argues Prof. Banzhaf.  More recently, federal Judge Thomas Porteous was removed from the bench by Congress for attempting to conceal, during his confirmation process, various prior wrongful acts.

However, although the wrongdoing technically occurred before Porteous took office, it was directly related to the office from which he was impeached  Indeed, it could even be argued that the falsification which led to his confirmation rendered his appointment invalid from the very beginning, and therefore was directly related to his service in office.  That is not true in any way regarding Fairfax.

In short, while legislators may not be legally bound by what appears in the Constitution, and courts may be reluctant to permit a challenge to an impeachment investigation just because it might be contrary to judicial readings of the constitutional standards - especially if the accused not only fails to object but has in fact called for such an investigation - it does appear that the law regarding impeachment is on Fairfax's side, whatever that may mean in practice, says Banzhaf.

On the other hand, a hearing that most (including the accused) seem to favor, where all parties would be able to relate their version of events in detail far greater than in carefully scripted statements by their attorneys, where they would be required to testify under the threat of perjury, and where they would be subject to cross examination - "beyond any doubt the greatest legal engine ever invented for the discovery of truth"  - is obviously preferable to a trial in the court of public opinion, argues Banzhaf.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418  @profbanzhaf

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