ALBANY — While the U.S. Constitution says that an impeachable offense involves “treason, bribery, or other high crimes and misdemeanors,” there’s no such definition in New York’s constitution.
So, then, what is an impeachable offense in the Empire State? Debate on that question has usually been limited to wonky discussions in law journals and forgotten legislative hearings. But there’s a decent chance that it could soon become the only question that matters in state politics.
What if the various investigations into Gov. Andrew Cuomo determine that he has acted in an unseemly way, but come up with no definitive proof that he’s done anything that rises above the level of a misdemeanor? Or what if there’s no new evidence of any wrongdoing, and the sexual harassment allegations against Cuomo remain a case of he-said, many-many-shes said?
The Legislature occasionally has offered guidance on this subject over the centuries. But there’s only one precedent that really matters — the 1913 impeachment of Gov. William Sulzer, the lone impeachment of a governor in New York history. And the takeaway from that case was simple: An impeachable offense is whatever members of the Assembly serving at any moment in time think it should be.
“You could impeach a person walking down the street. It’s such an incredibly vague standard,” said former state Sen. Michael Balboni, who examined the legal history of the subject in the 1980s. “Impeachment is a political process, not a criminal one.”
The state’s post-independence constitutions did contain language stating what should be considered an impeachable offense.
“[T]he power of impeaching all officers of the state, for mal and corrupt conduct in their respective offices, [shall] be vested in the representatives of the people in Assembly,” one of the documents declared.
“Mal” might be vague, though it was a standard of sorts and one that’s still occasionally referenced. “Lying and covering up” data on nursing home deaths should be considered “mal and misconduct,” Assemblymember Charles Barron (D-Brooklyn) said in early March.
But the 1846 constitutional convention led to a restructuring of state government in a way that required the complete rewrite of the section on impeachment. There was some effort by delegates to include stricter parameters for what could be considered impeachable since, as one delegate argued, “under high party times this power might be so used as to become oppressive.”
Those efforts were rejected after delegate Alvah Worden spoke against them.
“He apprehended that it would be unsafe to define in a law what offences would be punishable,” according to the minutes of the convention. “For it was beyond the power of human ingenuity to think of everything that would be punishable. And to name some, we should run the hazard of excluding others that should be included.”
All definitions of an impeachable offense wound up being removed from the constitution that year. Still, there were efforts over the succeeding decades to define just what should be impeachable.
In 1853, notably, members of the Assembly Judiciary Committee considered the question of whether an official could be impeached for a misdeed that occurred before they took office. Their answer was unambiguous — “No person can be impeached who was not at the time of the commission of the alleged offense, and at the time of the impeachment, holding some office under the laws of this State.”
Then came 1913, and the impeachment of Sulzer, the only time when a New York chief executive has been removed from office. And all of the previously decided rules of the road were thrown out once Tammany Hall boss Charles F. Murphy and his allies decided to go after Sulzer.
The question of misdeeds before taking office was at the center of the governor’s defense. The charges on which Sulzer was convicted centered on his using money he received during his campaign for personal purposes.
Some of the participants in the impeachment court agreed that the timing meant Sulzer couldn’t be convicted on that charge.
“There is no instance on record in this country where an officer has been removed from his office by impeachment for acts done when not in office,” Court of Appeals Judge Willard Bartlett noted.
Bartlett further argued that Sulzer’s misfiling of his campaign finance disclosures was a “noncriminal violation of a statutory provision,” and removing him from office for something like that would be quite a reach under any reading of the constitution.
“I cannot believe that it was intended to leave the definition of impeachable offenses wholly to the arbitrary discretion of the Assembly or of the Court for the Trial of Impeachments — in other words, that the Assembly possesses an unlimited power of impeachment for any cause it sees fit,” the judge said. Such a claim of unlimited power to impeach had not been seriously proposed in English language jurisprudence since Richard II’s opponents asserted it in 1388, and the House of Lords wound up abandoning that idea many lifetimes before Sulzer was born.
Nevertheless, in Sulzer’s case, solid majorities in the Legislature dismissed these centuries of precedent and sided with those who argued they did have the absolute power to impeach for whatever reason they wanted.
“I have as great respect as [Bartlett] for the traditions and historic precedents of the past, but in times of dire public need those precedents and those traditions must be brushed aside when public good demands it,” Sen. George Blauvelt said while voting to convict. While there might have been some guidelines for impeachment in state law, the fact that the constitution was silent on the issue meant that these statutory guidelines “are not controlling or binding.”
“The highest court of this State has repeatedly held that the Legislature cannot enlarge the provisions of the Constitution,” Blauvelt said. “That being so, how then can it abridge them?”
There was a separate debate during Sulzer’s impeachment trial over whether the Legislature could impeach during a special session.
“The constitution says [that] in a special session, the governor can decide what you’re going to talk about,” said Sulzer biographer Jack O’Donnell.
Sulzer obviously had not put his own impeachment on the special session agenda. But the Legislature was able to brush that strict reading of the constitution aside, further illustrating that when lawmakers decide it’s time to impeach, there’s little stopping them from doing so.
Lawmakers and legal minds have had several opportunities to discuss imposing some sort of constitutional limit on the Legislature’s unfettered impeachment powers. But there has not been a serious attempt to challenge or roll back the precedent set in 1913.
At a constitutional convention held just two years after Sulzer’s removal, nobody seems to have raised the possibility of reinserting language about mal or high crimes. Talk about impeachment was mostly limited to delegates affirming that it was good that the Legislature could take up the issue in a special session if they wanted.
“It is ridiculous, ridiculous to give power to the Assembly to impeach the governor, and in the next moment say that the power shall only be exercised when he sends in a message requesting it,” said future Gov. Al Smith.
He expressed confidence the Assembly would not abuse its powers: “I never saw seventy-six men make a mistake in this room yet. My judgment may have been that they were wrong, but it has panned out pretty good.”
The idea of reining in the Legislature’s reach was even more distant in the two other constitutional conventions held since then. The minutes of both the 1938 and 1967 conventions suggest that nobody was particularly interested in focusing on that issue.
The closest it has come to being thoroughly examined came in the 1980s, after Assemblymember Maurice Hinchey explored the possibility of unimpeaching Sulzer.
Following legislative investigations into that question, Senate Judiciary Committee Chair John Dunne and Balboni, then a counsel to the committee, authored a Fordham Urban Law Journal article detailing what they had learned through the hearings and their own further research.
They “found that the 1913 impeachment proceeding resulted in a denial of both procedural and substantive due process, and that the constitutional and statutory provisions are relevant today because the law under which Sulzer was removed from office in 1913 is still the law of New York State,” they wrote in the article. “Despite the uncertainty of substantive standards and the legitimate concerns over constitutional due process after the Sulzer trial, New York has failed to fashion a workable impeachment law with adequate safeguards against legislative abuse of the impeachment power.”
Dunne and Balboni had several recommendations for fixing these rules, including the creation of “a more specific definition of what acts constitute impeachable conduct — a definition broad enough to include a wide range of misconduct, criminal as well as civil, yet specific enough to prohibit the use of impeachment as a political tool.”
But their recommendations have never been acted on, meaning the standards determining what is an impeachable offense are still the same as they were during Sulzer’s day.
“It’s a political decision and not a legal distinction that is hemmed in by different classes of law,” said O’Donnell.
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