These are my notes from the June 19 House meeting regarding the impeachment process. Note, I was typing along as the meeting was proceeding, so forgive typos etc.
Legislative meeting on impeachment.
John Fellows outlining the process of impeachment
There is no process outlined, so the legislature can determine the process, standards etc.
The legislature can compel people to testify in the case. Immunity discussed. Case immunity vs. derivative immunity.
Beginning the process to investigate an impeachment is not the same thing as voting to impeach.
This government process, depending on the confidence, trust of the people, and when that trust has been damaged, it is important to deeply consider the will of the very people who elected the official.
Part of the official impeachment process is to determine facts. It does not necessarily lead to a removal from office.
As the process moves forward, the House can form an investigative committee, to investigate the allegations, use subpoenas, examine the witnesses et. This process is without precedent, but that is a plenary power of the legislature.
The process (investigative committee) also has a role to determine if new laws need to be enacted to prevent these problems from happening in the past. 2nd role is to determine a plan of action based on the findings.
Findings of the investigative committee do not require action. The House can still determine that.
What is the level of discretion left to the House? Fellows says absolute unfettered discretion.
Two ways of removing public officers from Utah.
2. 2. Local officers can be removed by a statuatory process.
They both use the standard of “high crimes and misdemeanors.”
Impeachment committee would have to determine how they would deal with behaviors that occurred outside of the time during elected office.
What have other states done?
1. Wait for investigation to happen, then follow those findings.
2. Wait for investigation to happen (like the FBI), then ignore it.
3. Impeach before results come back.
4. Form independent committee, and either follow or ignore their recommendation.
Among states who have dealt with this there is a wide variety of ways they have dealt with it.
“In office”—does it deal with malfeasance and/or high treason? Does “in office” modify high crimes, misdemeanors, and/or malfeasance?
No precedent for malfeasance in fed law, as to “in office.”
What is the legal standard of proof(clear and convincing, probably cause etc.)? At some point the evidence rises to a standard….what is it?
Different standards apply to different crimes.
Beyond a reasonable doubt. Highest.
Clear and convincing evidence. Above 50%.
Preponderance of the evidence. 50% +1.
This process is not parallel to a criminal investigation.
Argument to “wait until the criminal investigation concludes” before making a decision. This may prevent the legislature from looking at the political ramifications.
US Supreme Court removal cases have encouraged caution and thoughtfulness. They acknowledge the role and responsibility of the legislature, but encourage caution. The person who is elected is responsible to the people.
Should ewe pass legislation that sets into place legal process prior to beginning the process?
Should we enact statutes or just through House rules? Statute would require Senate and also the Governor to be involved, via legislative process (as with any bill).
There is no guarantee we would not have some type of lawsuits involved, either as part of the outcome or the process.
The House Speaker can also call the House into order, to change House rules.
Is this our constitutional duty to impeach?
What duty do we have to the people?
If an impeachment resolution is filed, the Speaker can determine if she wants to take a poll etc.
“High crimes” hearkens back to English parliament precedent, it has a broad notion, that loss of trust of the people, there is discretion there. It does not have to mean guilty of a crime.
The impeachments in congress take 9-14 months. In Connecticut it took 13 months.
1. Determine what high crimes, misdemeanor, malfeasance means.
2. Determine “in office” question.
3. A motion is filed.
The last thing like this was the lawsuit on SB 2. That was filed in 2008. Just resolved.
This is independent of, not a duplication of, or in lieu of, a criminal investigation. This also does not preclude a discussion of if the AG should be appointed etc.
Fairness, equity must be considered.
Difference between an investigative committee vs. an impeachment committee.
Legislature has a plenary power to investigate. In both incidences you will arrive at some outcomes or recommendations. The authority to either investigate or impeach comes from the same source.
Our duty, responsibility, mandate is to the people of Utah. We must protect them. This goes beyond if someone is unpopular, it is if they don’t have the public trust and are unable to do the job. Is the office damaged?
*****Options at this point******:
1. Start down the impeachment path.
2. Begin an investigative committee.
3. As for a legislative audit subcommittee to conduct an audit of the AG office.
Immunity with proceeding with any kind of action, could we find ourselves where we might be in a settlement with that person? That type of lawsuit would be vigorously opposed by leg staff and would most likely not be successful. It could, however, incur costs from the state. Significant costs, see the legacy highway lawsuit etc.
Taxpayer dollars would have to pay for this.
Misdemeanors is a word that has not having enduring quality. Back in the day it was talking about serious things. Even though we think we can “do anything we want” we do have parameters.
Colonial times described misdemeanors as: acts of great injury to the community, great and dangerous offenses, fraudulent, ross official misdemeanors.
**Trust, confidence, and respect in the AG’s ability to conduct his duties**
Proceed cautiously, move towards gathering facts, prepare to potentially move down that path.
Convene House to create House rules to establish a committee to investigate the use of subpoenas and other methods, the committee will hold meetings, public etc., and report back to the House when their findings are complete.
This is NOT starting the impeachment process. This IS beginning to look into the issues, gather facts, so we can make an educated decision as to what we will do.
We are trying to have an investigation with no determined outcome. Then the House determines it’s actions based on findings and facts as the committee has determined.
Can we put a price on the public trust? We are supposed to be considering that in our discussion.
Impeachment could be $2-$5 million. This investigative process would be much less. To convene the legislature for an entire day is $30K, probably $20K for just the House.
We do not need conjecture or information from agenda-driven sources. We need facts.
1. Democratic House members desires
2. Allows Swallow to tell his side of the story
3. We are proceeding cautiously and thoughtfully
4. Satisfies the concerns of the constituents of the state