|Executive Power from a Connecticut Perspective: Lowering the Impeachment Bar|
|Kimberly Gahan, Tuesday, 28 February 2006 [View as PDF]|
Impeachment is a nasty accusation these days. In the wake of Senator Feingold’s proposed resolution to censure President Bush, Republicans alleged that the resolution revealed Democrats’ hopes to impeach the President if they gain control of Congress in the November elections. The allegation was meant to arouse indignation and rally the Republican base. Senator Feingold, meanwhile, sought to mute the allegation by emphasizing censure as an alternative to the highly controversial impeachment process. But what if there was a stronger alternative, by which a legislature could effectively impeach a sitting executive without ever voting on articles of impeachment? That process now exists in Connecticut.
On February 10, 2006, former three-term Connecticut Governor John Rowland completed a ten-month federal prison sentence after pleading guilty to a single corruption charge. Rowland’s plea followed an adverse ruling, in June 2004, by the Connecticut Supreme Court on his challenge to a legislative subpoena. The House of Representatives had formed a Select Committee of Inquiry into whether sufficient grounds existed to impeach the Governor, which focused on reports of corruption and receipt of unauthorized gifts by the Governor and certain aides. The Committee subpoenaed Rowland to appear before it and testify. Rowland challenged the subpoena in court, claiming that executive immunity and separation of powers prohibited the legislature from compelling a sitting Governor to testify on his official duties. The Supreme Court of Connecticut rejected Rowland’s immunity claims and held that the Governor had a legal obligation to comply with the subpoena. Three days later, Rowland announced his resignation. For Connecticut, 2004 was the year of the fallen Executive.
Although the political consequences of Rowland’s downfall remain uncertain, one legal consequence is clear: the Office of the Governor will be more vulnerable to pre-impeachment legislative intrusion than ever before. In the case - Office of the Governor v. Select Committee of Inquiry - the Connecticut Supreme Court blessed a dramatic expansion of the impeachment power. The constitutional implications of this decision are grave, and not simply for future Connecticut governors. If other jurisdictions adopt the same reasoning, federal and state legislatures could subordinate the only restraint on impeachment processes - constitutional formality and the balance of coequal branches - to a more politically and logistically expedient process.
It is undisputed that the Committee of Inquiry’s subpoena was entirely unprecedented. Indeed, neither the Committee nor the Court could identify a legislative subpoena for testimony of a sitting chief executive on the federal or state level. The closest analogy the Court could muster was when the United States Supreme Court ordered President Nixon to provide tapes of his conversations with seven individuals indicted for conspiracy during the Watergate scandal. However, Nixon was an unindicted co-conspirator in that case, and the decision balanced the President’s general interest in confidentiality against the legitimate needs of judicial process in an ongoing criminal case. In contrast, the Rowland subpoena did not compel documents or other evidentiary materials. It summoned the Governor himself. Nor was the source of the Rowland subpoena a judicial officer performing his duties in a separate, ongoing criminal investigation. It was simply a House committee.
The Court justified its decision by noting that the Connecticut constitution requires the Lieutenant Governor to assume the Governor’s responsibilities immediately after the House impeaches him, even before the Senate trial. It explained that this interim consequence created a “compelling need” for the Committee to have superior information before advising the House whether or not to impeach. This theory of protection is self-defeating. It strips the Governor of his most robust protections - constitutional separation of powers and executive privilege - out of professed concern for the damage that unwarranted impeachment might cause. In addition, the Court failed to acknowledge that the constitution might transfer responsibility from an impeached Governor precisely to avoid the distracting political theater that the Committee elicited by its subpoena. Under a different system, the Governor might have to prepare his testimony and impeachment defense while continuing his duties as chief executive of the State. The constitution found this prospect troubling and sought to prevent it. The committee and the court, it seems, did not.
Even more troublingly, the Court blurred the line between the power to impeach and the power to consider whether impeachment is appropriate. The House’s impeachment power is admittedly broad and undefined. Its pre-impeachment coercive authority - particularly to compel testimony from the target of its investigation - should not be equally broad and undefined. To hold the two coextensive undermines the constitutional structure of separation of powers and disregards the constitutional significance of a formal impeachment process. If a House committee deliberating whether or not to impeach the Governor has the power to compel the Governor to testify, what would be the purpose of impeachment or the ensuing Senate trial?
In short, the danger of this case is that it enables the House to impeach by innuendo, without respecting constitutional formalities. Removing the chief executive - a visible, important, popularly elected official - by impeachment is supposed to be politically risky. It is supposed to be hard. That is why both the Connecticut and the United States constitutions establish a rigidly bicameral process, require two-thirds of the Senate to vote for conviction, and direct the Chief Justice to preside over impeachment trials. These structural hurdles have worked. Only two Presidents have ever been impeached, neither was convicted, and a third resigned in the face of certain impeachment. Sixteen state governors have been impeached, and only seven convicted. Connecticut has never impeached, let alone convicted, a governor. Now it may never have to. The 2004 ruling could allow the whole process to take place by proxy in a committee hearing.
Yet the greater concern is the broader effect this decision might have. Because courts so often decline to decide questions about the scope of impeachment power, just one decision - such as this one - is a sword of Damocles for other legislatures to hold over the heads of governors, judges, attorneys general, and possibly Presidents. As the legislature gains leverage, the calculus for how egregious conduct must be to commence impeachment may shift, or individuals investigated for possible impeachment might be coerced into resigning sooner rather than later, regardless of their culpability.
Kimberly Gahan is a second-year student at Yale Law School. She is a Notes Editor on Volume 116 of The Yale Law Journal.
Preferred Citation: Kimberly Gahan, Executive Power from a Connecticut Perspective: Lowering the Impeachment Bar, Yale L.J. (The Pocket Part), March 2006, http://www.thepocketpart.org/2006/03/gahan.html.