Cindi Ross Scoppe

Scoppe: The problems with the Delleney standard for impeachment

REP. GREG Delleney sees impeachment, under the broad language in our constitution, as closely akin to voter recall: Whether the governor of California gets kicked out a year into his term depends entirely on the political will of the voters.

That's why the Chester attorney, who is the leading advocate of impeachment and who almost certainly will chair the subcommittee that will put together any case against the governor, is convinced that Mark Sanford's Argentine vacation is reason aplenty to impeach the governor.

There's no question that the constitution gives the Legislature broad latitude in determining what is and is not "serious misconduct." Certainly, as Mr. Delleney argues, it does not have to involve the criminal offense that we call "misconduct in office" - or any criminal offense, for that matter.

But while his argument is no doubt appealing to populists - and to anyone who just wants Mr. Sanford gone, regardless of the implications for future governors - his legal reasoning should give his fellow representatives pause.

Mr. Delleney believes the governor engaged in dereliction of duty when he made himself incommunicado for five days in June. Add the fact that Mr. Sanford "covered it up by deceit and misleading, and he involved his staff in that deceit and misleading" and went on to heap "shame and humiliation" upon the state, and the Democrat-turned-Republican sees a slam-dunk case. Anything that comes of the ethics investigation into the governor's travel and use of campaign funds, he believes, could be added to his case but would be simply that - an addition.

Mr. Delleney hopes to get the ball rolling today, when he tries to introduce an impeachment resolution during the Legislature's emergency session to fix the unemployment benefits screw-up. If things go as he hopes, the matter will be referred to his Constitutional Laws Subcommittee, which would set about subpoenaing members of the governor's security detail and other police officials to establish that Mr. Sanford turned off his cell phone and could not be located. He also wants to call members of the governor's staff to testify about their own efforts to locate the boss (augmented by phone records and e-mails) and about the Appalachian Trail tale the governor left with them, which they then passed on to the public. Lt. Gov. Andre Bauer might be called to testify that he didn't know the governor had left the country and that no there was "no protocol for exercising the chain of command for the state in the event of an emergency."

(When I pointed out that the part about the lieutenant governor seemed irrelevant, since the constitution doesn't require the governor to notify anyone of his absence, but automatically vests emergency powers upon the lieutenant governor if an emergency arises in the governor's absence, Mr. Delleney said it was Mr. Sanford who suggested to him that the lieutenant governor would need to be sworn in as governor. "I was assuming he knew what he was talking about," Mr. Delleney said in all seriousness, and we both got a good laugh.)

The process he outlines sounds a bit more like a show trial than an attempt to gather information and build a case, but to his credit Mr. Delleney noted before I could ask that the governor has admitted to most of the actions he's targeting, so he doesn't think his hearings should take more than a day or two. Yes, he said, he probably could just take affidavits from some of his witnesses, because "we can do what we want to do; it's not a legal process, nobody's going to be fined, nobody's going to be put in jail, this is a political process."

Well, maybe. Legal scholars are divided over that question, some arguing quite respectably that other provisions in both the state and federal constitutions, as well as precedent set by the Congress, do make impeachment a legal process, with exacting legal standards. In any event, it seems clear that the impeachment provision in our own constitution, like that in other constitutions, is not even a distant relative of voter recall, which arose out of the progressive movement of the late 19th and early 20th centuries that never really made it to our state.

Rather, as the state Supreme Court noted in a 1929 case (fortunately, we don't get a lot of case law on this topic), impeachment provisions in U.S. states, "by inevitable implication," cover "such official delinquencies, wrongs, or malfeasances as justified impeachment according to the principles established by the common law and the practice of the English Parliament and the parliamentary bodies in America."

If I were a House member at all inclined to vote for impeachment, I would want to hear from people who know a lot more about constitutional law than I do, if for no other reason than to be prepared for the certain lawsuit that will be filed in the event that impeachment is successful. (Mr. Delleney has no interest in that: "There's no room for legal scholars as far as I'm concerned. That's what the governor would like to do. That's why he likes to talk about the airplane rides; he can defend that. But he really can't defend dereliction of duty and shame and disgrace.")

More importantly, the gulf is wide between what the Legislature may do and what it should do. Impeaching Mr. Sanford today because he went on an unannounced vacation and brought "shame and humiliation" on our state might very well lower the bar enough for a future Legislature to feel comfortable impeaching a governor for simply, say, carrying a couple of defecating piglets to the door of the House chamber.