While the rest of the country deals with swine flu, the General Assembly seems to be wrestling with a chronic case of swine fever. Ever since Gov. Mark Sanford protested pork spending by visiting the General Assembly with baby pigs, legislators have been feverishly trying to get even. This swine fever has caused several irrational outbursts recently, including claims that:
(1) The House is a prosecutorial body (Speaker Bobby Harrell).
(2) "The Constitution is so vague we could impeach any governor any time we wanted to" (Rep. Harry Cato).
(3) The Senate could de facto remove a governor by denying him a hearing in the Senate after the House votes to impeach (Sen. Danny Verdin).
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Stop. Everybody count to 10.
Let's examine those claims.
The speaker's claim is central to the question the state Supreme Court will take up on Monday - whether the House is entitled to receive a copy of the Ethics Commission's preliminary staff investigation into Gov. Sanford - since state law says such investigations can be given only to prosecutors.
But the House is not a prosecutorial body. Here's why: The Fifth Amendment provides that "No person shall be ... subject for the same offense to be twice put in jeopardy." This is known as double jeopardy, and the U.S. Supreme Court says it means that an individual cannot be "twice prosecuted for the same offense." The South Carolina Constitution provides that impeachment "shall not be a bar to criminal prosecution."
Aristotle's logic would tell us that since a governor cannot be "twice prosecuted for the same offense" (major premise) and since, after impeachment, a governor can be prosecuted for the impeachment offense (minor premise), then impeachment cannot be a prosecution (inescapable conclusion). Accordingly, the House is not a prosecutorial body, and it is not entitled to the Ethics Commission's preliminary staff investigation.
The contents of that investigation are important because, contrary to Rep. Cato's analysis, defining "impeachable misconduct" is not left to the whim of each House member.
The state constitution describes "sufficient ground for impeachment" as an echelon more severe than the "willful neglect of duty" necessary to remove a Circuit Court judge. Thus, as a 1974 attorney general's opinion (No. 3688) confirmed, an impeachable offense must be materially more significant than "willful neglect of duty" - and way beyond the "anything goes" standard that many House members are throwing around as the basis for getting rid of the governor.
Beyond that, common sense dictates that there must be a higher threshhold.
Clemson's faculty manual describes cause for removing a tenured professor as actions "having extremely adverse effects upon (the institution), such as serious violations of law." It continues: "In a similar category are: blatantly unprofessional conduct, such as the continued neglect of important responsibilities; markedly sub-standard performance of duties; or highly serious breaches of university regulations such as falsification of credentials submitted in an application for a faculty position. Sufficient cause for such a dismissal must be related directly and substantively to the faculty member's professional fitness as a teacher."
If this describes the standard for removing a tenured state professor, then the standard for "willful neglect of duty" necessary to remove a circuit judge must be significantly more severe, and the standard for impeaching a duly elected constitutional officer must rise to an even higher level.
Finally, there is nothing in our constitution that authorizes de facto removal. If the governor is impeached - that is, formally accused - by the House, he is automatically suspended from office until acquitted at trial. Suggesting that the Senate could sit on its hands and deny the governor a trial is not only bush-league but also an unconstitutional deprivation of due process, not to mention an unconstitutional encroachment on executive power and a violation of the spirit of the constitutional provisions requiring a republic form of government.
Doesn't the General Assembly remember that Ned Sloan only recently sued to end the practice of retaining de facto Department of Transportation commissioners long after their legal terms had expired? And that the Supreme Court ruled unanimously in his (and our) favor.
Maybe not. Swine fever can do strange things to the memory.
Generally, the Supreme Court will not take a case to render an advisory opinion, but it does on occasion provide guidance in a matter before it that still faces trial. Let's hope the court takes the time this week to dispense enough medicine to break the fever, so we can all focus on South Carolina's much-needed recovery.