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.


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.

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.”

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Another View: How Mark Zuckerberg Can ‘Win’ on Capitol Hill

First, while he was inexplicably slow and somewhat disjointed in initially addressing the Cambridge Analytica crisis, he has since developed a comprehensive “narrative.” It not only addresses the company’s data privacy issues but also Facebook’s troubles with fake news and nefarious election influence.

That narrative served as the basis of both Mr. Zuckerberg’s media call last week and his formal opening statement submitted Monday afternoon. An abridged summary of that narrative could go something like this:

“Facebook created an entirely new tool for connecting people for the purposes of good. We didn’t anticipate bad people would use it for bad purposes. We are genuinely sorry, and I’m personally accountable. We needed to broaden our sense of responsibility and will continue to keep taking meaningful actions to prevent the abuse of the tools we provide. Our business depends on the trust of our community, and so restoring that trust is our biggest business priority. The bad guys can never be fully subdued, but we will be continually learning and making Facebook safer and better.”

That explanation will hardly appease Facebook’s most severe critics, who want to see more drastic changes. Instead, Mr. Zuckerberg’s message — laced with promises of ongoing changes to come — seems designed primarily to allow Facebook to move beyond crisis.


Mark Zuckerberg, right, met with lawmakers in Washington on Monday ahead of his scheduled testimony in Congress Tuesday. Follow the latest developments in a live briefing.

Pete Marovich for The New York Times

To avoid making himself a fixed target, Mr. Zuckerberg is wise to not defend Facebook’s most egregious historical practices. During questioning, look for him to be highly open-minded. If threatened with regulatory intervention, assume Mr. Zuckerberg will earnestly repeat his recent assertions that Facebook would welcome reasonable regulation.

The real test of Mr. Zuckerberg’s new malleability will come if he’s asked if Facebook is considering adding a paid subscription that would allow users to avoid sharing their data with advertisers. That would mark a fundamental change in the company’s business model, a shift that some say would be required to truly solve Facebook’s problems. Thus far, Mr. Zuckerberg has staunchly insisted that Facebook remain free to its users.

Second, Mr. Zuckerberg should benefit from his growing comfort with talking publicly about Facebook’s issues. After the Cambridge Analytica story broke, Mr. Zuckerberg seemed noticeably anxious in his lone televised interview, clearly aware that the issue was far more serious than Facebook’s prior controversies.

But a week later, in his hourlong conference call with media, Mr. Zuckerberg seemed far more sure-footed in taking on fairly sharp questions and sometimes sounding almost eager to reply with detailed answers.

Mr. Zuckerberg’s performance may also be enhanced by private meetings he had on Capitol Hill on Monday. Those conversations won’t likely win him more favorable treatment during his testimony, but they likely served as a helpful warm-up before he sits down in front of the full committee and the live cameras.

While testifying, Mr. Zuckerberg’s first priority is to avoid generating a new round of negative headlines by tossing off a flippant, misguided remark, or by being goaded into a petulant state. But if he endures his inquisition with humility, respectfulness and sincerity, he could actually emerge much better off.

These hearings tend to serve as turning points in most major business controversies. Sometimes they add fuel to the fire. Other times, they create a sense that the offending big shot has been sufficiently chastened by a public lashing and the crisis starts to fade.

Mr. Zuckerberg will likely be peppered with plenty of barbed questions. But the most important one will be highly personal: “How can you possibly think that you should not be fired?”

At that moment, if he can convince lawmakers and Facebook users that he is the most capable and determined person to fix his company’s problems, then Facebook can begin turning the corner on this crisis. And if that happens, then Mr. Zuckerberg can actually say that he walked away with a small but critical “win.”

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