Opinion: What the standard is for impeachment

By Holly Richardson, KSL.com Contributor | Posted - Jun 17th, 2013 @ 10:16am

Editor's note: This article is intended to provide readers with a better understanding of the impeachment process through a former member of the Utah legislature. The opinions expressed are not necessarily those of ksl.com, its management or ownership.

SALT LAKE CITY — With increasing discussions about [impeaching embattled Attorney General John Swallow](John Swallow lawyers: Impeachment proceedings not justified ), there is also increasing discussion on what the standard really is for impeachment.

Elected officials can be impeached for "high crimes and misdemeanors and malfeasance in office."

The term "high crimes and misdemeanors" is included in the Utah Constitution and appears to be taken directly from the U.S. Constitution when Utah became a state.

"High crimes and misdemeanors" involves conduct that entails an abuse of power, or a serious breach of trust or some other behavior that demonstrates an official's unsuitability for office — whether the conduct is criminal or not.

A recent analysis of the impeachment process by the federal Congressional Research Service summarized "high crimes and misdemeanors" this way: "High crimes" was used to describe political offenses to the state.

The addition of the word "misdemeanors" suggests that civil officers may also be charged with "minor breaches of ethical conduct, misuse of power and neglect of duty, as well as more prolonged, egregious or financially rapacious misconduct."

That analysis also relies on the Federalist Papers by Alexander Hamilton — specifically Federalist 65.

Mr Hamilton defines impeachment proceedings as being for those offenses "which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself."

There continues to be misunderstanding on how the standard for impeachment relates to criminal behavior.

The answer is simple. There does not have to be a criminal conviction, nor even an indictable offense. Continued assertions by Mr. Swallow and his "team" that he is not impeachable because he has not committed a crime are simply false. They either do not understand the impeachment process or they are deliberating misleading the public.

Again, the Congressional Research Service issued findings in 2010 that "in the eyes of the Framers, a civil officer may be properly impeached for non-indictable conduct that violates the public trust.

An impeachment trial stands wholly separate from a criminal proceeding. Neither impeachment by the House nor conviction by the Senate precludes criminal indictment or conviction on charges related to crimes for which (an officer) was impeached.

As a political process, impeachment and conviction as delineated in the Constitution seek to protect the integrity of American political and judicial institutions.

Criminal proceedings and impeachment serve fundamentally different purposes: the former is designed to punish an offender and seek retribution, while the latter is the first step in a remedial process. The purpose of impeachment is not personal punishment, but rather to maintain constitutional government through removal of unfit officials from positions of public trust.

In a separate report by the CRS, researchers stated:

The constitutional "high Crimes and Misdemeanors" standard "refers to misconduct that damages the state and the operations of governmental institutions, and is not limited to criminal conduct."

In H.Rept. 100-810, the committee also drew attention to the noncriminal nature of impeachment, designed to remove the officer involved in such misconduct from his or her office and to protect "our constitutional form of government from the depredations of those in high office who abuse or violate the public trust."

The standard — and the process — for impeachment is quite different than a criminal trial. They are not tied together. It is the constitutional duty of the Utah legislature to begin impeachment proceedings when there is ongoing evidence of a significant breach of public trust. They should not be cowed by bullying and threats by the Attorney General or his personal attorneys.

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