For Politicians Scraping Bottom, a Scarce Resource: Impeachment Lawyers


“The interesting thing about an impeachment — and people always need to keep this in mind — is it’s inherently a political exercise, and not a legal exercise,” said David Ellis, who prosecuted Gov. Rod Blagojevich of Illinois during his Senate trial in 2009 when Mr. Blagojevich was convicted and removed from office. “It’s governed by the legislature, not the courts. Courts have all sorts of procedural protections built in — due process rights, impartial juries — but you cannot perfectly analogize that to the legislative realm.”

With impeachments still relatively rare, even as some Democrats talk of removing President Trump from office, lawyers working recent cases in state capitals like Montgomery, Ala., have found little precedent to guide them. Instead they often find that the processes long codified in constitutions can, in modern practice, be murky to the point of inviting chaos.

That lack of clarity invites clashes about privileges and subpoena power, legislative authority and access to evidence. Arcane-seeming subjects may be able to reshape a state’s approach to executive power. And a particular brand of politics — fueled by self-flagellation, piety, pride and legal jeopardy — seems to thread through every threatened impeachment.

“There’s a common structure, but as far as how you’re supposed to do it on the ground, substantively or procedurally or in terms of burden of proof, there’s a lot of debate on that, and not a lot of consensus,” said Jackson R. Sharman III, who was special counsel to the Alabama legislative committee that investigated Gov. Robert Bentley before his resignation last year.

The absence of norms lends extraordinary influence to the lawyers who are often tasked with speedily setting up something resembling, but not always behaving like, a traditional investigation and trial.

Mr. Ellis was counsel to the state’s House speaker when legislative leaders urged him to take the case, a role he said he accepted only after “a pregnant pause.” He had about two weeks to prepare for trial.

Mr. Garber, a white-collar criminal defense lawyer who once edited his high school newspaper, more or less fell into impeachments as a legal niche. After Mr. Garber’s bid for Connecticut state treasurer faltered — he was “the silver medalist,” he noted wryly — Gov. John G. Rowland’s office sought the lawyer’s help for a federal corruption investigation. Mr. Rowland had lawyers on his staff, but, like those in all governor’s offices, they were far more familiar with legislative haggling than with inquiries that could lead to prison terms.

Photo

Gov. Eric Greitens of Missouri has been criminally charged with two felonies. A state legislative committee will decide in the coming weeks whether to pursue impeachment.

Credit
Julie Smith/The Jefferson City News-Tribune, via Associated Press

Mr. Rowland resigned before lawmakers could decide whether to impeach him. But Mr. Garber, who describes his work as safeguarding the institutional traditions and privileges of the governor’s offices he represents, had stumbled into a legal arena in which few others were experts.

He was later asked to advise Gov. Mark Sanford of South Carolina, whom lawmakers eventually declined to impeach over accusations connected to his whereabouts while he visited his mistress in Argentina.

And then last year, Mr. Garber, whose usual work includes handling regulatory investigations and international trade issues, was on Mr. Bentley’s team after the Alabama governor was enmeshed in a sex scandal. He said his name comes up so often because there are so few in the field.

“Because so much of what happens isn’t reported or recorded or even known, one of the things I bring to the process is the sense of having done them and spent a lot of time studying them,” Mr. Garber said.

At the federal level, the United States Senate has conducted just 19 impeachment trials in its history; nearly all have been of federal judges, including the most recent, in 2010. State legislatures have impeached a host of lower-ranking officials, from a university regent in Nebraska to a Kentucky agriculture commissioner, but only 16 governors have ever been impeached, and almost all were before the Great Depression.

Although some governors, like Mr. Sanford, withstand the pressure, modern governors tend to succumb to political or legal realities and leave office before an impeachment can happen.

Neither Mr. Bentley, who now practices dermatology in an Alabama college town, nor Mr. Sanford, a member of Congress, responded to messages. Mr. Blagojevich and Mr. Rowland, who were convicted of corruption charges after leaving office, are in federal custody.

For Mr. Garber, whose bills are often paid with tax dollars because he is not representing a governor’s personal interests, part of his job is ensuring that politics alone do not settle impeachments and undermine the authority of governors for generations to come.

His goal, he said, is to argue “that our constitutional system is set up so that elections don’t get overthrown because of political whims, that elections have consequences and we don’t throw those out absent very, very serious acts that affect the public official’s office, that are proven with a high degree of certainty after a fair process.”

Missouri lawmakers are still grappling over how they will reckon with Mr. Greitens, who has been criminally charged with two felonies: invasion of privacy, for photographing a nude or partially nude person without the person’s knowledge or consent, and for tampering with computer data for allegedly obtaining a charity’s donor list and using it for political fund-raising.

The governor has denied criminal wrongdoing and rebuffed demands for his resignation, calling the efforts against him “a witch hunt.” A legislative committee will decide in the coming weeks whether to pursue the impeachment process that is broadly outlined in the Missouri Constitution.

Mr. Garber, who teaches about political investigations and impeachments at Tulane University’s law school and largely splits his time between Washington, Hartford and New Orleans, declined to detail any of his plans for the Missouri case. His record, though, suggests that he will argue, in public and in private, that lawmakers should not hastily negate the voters’ choice for governor and should save impeachment for a most exceptional case.

Like just about every impeachment lawyer these days, he is likely to look to history, where the proceedings against President Richard M. Nixon remain especially important for lawyers working in state capitols. More than 40 years later, it remains a lesson in the strategies and risks that come with representing the most powerful figures in government.

“Institutions, even something so sophisticated as the White House,” Mr. Garber observed, “aren’t set up to deal with these kinds of crises.”

Continue reading the main story

If Twitter Users Could Vote


Photo

A scene from “Selma,” which, judging by tweets, is the popular favorite among best-picture nominees.Credit Atsushi Nishijima/Paramount Pictures, via Associated Press

Only members of the Academy can determine Oscar winners, but if tweets were votes, “Selma” would take best picture. That’s going by the numbers crunched by Twitter, which analyzed discussions surrounding contenders in select categories since Jan. 15, when the nominations were unveiled.

While “American Sniper” was the most-discussed film on the best-picture slate, Twitter looked further at the context of the conversations, zeroing in on Academy Awards-related messages. By that measure, “Selma” was the front-runner.

In the acting categories, Julianne Moore has been picking up prizes all season for her performance in “Still Alice,” and Twitter found that its users were in agreement with that choice. But after that they departed from conventional wisdom: based on the service’s analysis, the tweeting contingent wants Benedict Cumberbatch (“The Imitation Game”) to get best actor, and Meryl Streep (“Into the Woods”) and Mark Ruffalo (“Foxcatcher) to win in the supporting categories.

Twitter also took a state-by-state look at the popularity of Oscar-nominated films among its users and found “Selma” support biggest in, yes, Alabama.