Right before he was sworn in as a judge on the Missouri Supreme Court, Edward “Chip” Robertson met with the speaker of Puerto Rico's House, who told him his chamber was about to impeach the governor.
When Robertson asked what the governor did wrong, he said the speaker replied: “Nothing, I have the votes.”
That anecdote helped illustrate to Robertson why Missouri’s method of impeaching a governor is preferable to the federal model. While 100 senators are mulling whether to keep President Donald Trump in office, the Missouri Constitution gives decision-making authority to seven judges the Senate confirms.
“Ultimately, it is a political act,” Robertson said. “It’s an act to say that the will of the people in electing this person has to be overcome because of something that happened. And it’s never going to be anything less than that. Given the seriousness of that, what the people of Missouri did was a step in the right direction.”
Robertson has experience with the Missouri impeachment process. He was the general counsel for a committee that was looking into impeaching Eric Greitens — a move that proved unnecessary when the GOP governor resigned in 2018. He also was on the Missouri Supreme Court when that body voted to remove Secretary of State Judi Mortiarty.
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He noted that the Missouri Senate used to be in charge of whether an impeached official should stay in office. But he said that changed after an episode in which a state treasurer who had obviously committed an impeachable offense was acquitted due to his popularity.
The 1945 version of the Missouri Constitution gave impeachment authority over most statewide officials and judges to the Missouri Supreme Court. In the case of the governor, the Senate chooses seven “eminent jurists” (a fancy way of saying sitting judges) to try the case. And that chief executive can be thrown out of office for "crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.”
“At the end of the day, the trial of an impeachment is ultimately both a legal and a political event,” Robertson said. “And when you leave it in the hands of the Senate, it is ultimately and potentially a purely political event. When you put it in the hands of people who don’t face the same sorts of electoral pressures and some other stuff, then it becomes a whole lot less of a political event.”
Emery’s crusade
One person who really dislikes Missouri’s way of impeaching is Sen. Ed Emery.
The Lamar Republican has introduced a ballot measure for more than a decade to make Missouri’s impeachments more like the federal model — in which the House impeaches and the Senate votes to acquit or convict. For one thing, he doesn’t like how the Supreme Court is in charge of impeachments of most judges.
He also said judges don’t have the same level of public accountability as senators. While some judges in Missouri are elected, many are appointed through the Non-Partisan Court Plan and face retention elections that almost always result in a person staying on the bench.
“That’s one of the problems with sending this to the courts instead of sending it to the Senate … because in the courts, their mindset is criminal versus non criminal,” Emery said. “It is committed an act versus not committed an act. The mindset of a Senate, which is a political body, is, 'Should this person be removed?'”
Emery’s ballot item got more attention last year than usual after the Greitens scandal. It managed to pass out of the Senate Judiciary Committee, but it didn’t get floor time. Emery is barred from running for either the House or Senate again because of term limits, so 2020 is his last chance to put his impeachment change before voters.
Emery said the chances of his measure getting traction is somewhat up in the air. He’s wondered if “this is going to be a good year because people are going to say, 'This is important, and we need to pay attention and get it right,’ or is it going to be a tough year because people say, ‘Let’s not talk about this, it’s already an embarrassment.’”
“The current manner is a complete compromise of checks and balances in the system,” Emery said. “We’re supposed to have three independent jurisdictions. And the checks and balances are such that every branch can be checked by the other two branches. When you bring the courts into the impeachment, you’ve broken that impeachment model completely.”
For his part, Robertson doesn’t see much of a reason to have Missouri’s impeachment system resemble the federal model. He noted there was no blowback after Moriarty was ousted in 1994 for helping her son file for political office after a deadline had passed.
“Those who are involved in politics want politics to be the coin of the realm, so to speak,” Robertson said. “And it’s not surprising to me that some would suggest that we ought to go back to the federal model. Not because it’s broken, but they saw the potential that the Senate was not going to have the voice that some of the senators wanted to have, had Greitens actually had to go to trial.
“There just hasn’t been enough of it to suggest that it’s broken,” he added.
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