High Crimes and [NFL] Misdemeanors? Members Raise Impeachment In Fuller Case

We previously discussed the arrest of U.S. District Judge Mark Fuller in Alabama for misdemeanor battery of his wife. Now members are raising the possibility of impeachment if he does not resign despite the absence of a conviction on the misdemeanor. Rep. Martha Roby (R., Alabama) is citing a rather novel source of extraconstitutional precedent: the NFL Ray Rice case.

Roby (whose father, Joel Dubina, is a U.S. circuit court judge on senior status) is willing to allow the judiciary’s disciplinary process to play out but says that the Congress should act promptly the way the NFL has done to show that “Domestic abuse cannot be tolerated, explained away or swept under the rug.”

While I am a huge Bears fan, I generally keep my love for football separate from my constitutional analysis. Indeed, next to the Pirates of Penzance, the NFL is the last group that I would look to for legal guidance on most questions.

As lead counsel for the last judge to be impeached, Tom Porteous, I would hope that members consider the constitutional rather than the NFL standard for impeachment and removal. The Good Behavior Clause in Article III, Section 1 of the Constitution, which states that all federal judges “shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” The reference to judges holding office only “during good behavior” is often misunderstood as a standard that allows removal for simply bad behavior. In reality, while some have argued that perhaps a higher standard is meant to be imposed by the language, it has at a minimum required the showing under the Impeachment Clause in Article II, Section 4, that allows for removal of “civil officers” (which would include federal judges) in cases of “treason, bribery or other high crimes and misdemeanors.” This requires a majority of the House and two-thirds of the Senate.

Being suspended from football is not the same as being removed from the courts. Both involve people who are “benched” but that is the full extent of the analogy. It is no better an analogy than Fuller claiming that battery of a spouse is merely a form of “unnecessary roughness.” I respect the strong feelings of Rep. Roby and most people about these allegations. I share them. I also do not mean to suggest that Rep. Roby is unaware of the constitutional standard. However, there are serious issues here of both criminal and constitutional law. We can leave Ray Rice out of it. The issue should first be allowed to be fully considered by the criminal legal process and judicial disciplinary process before Congress starts any discussion of impeachment.

Source: Montgomery Advertiser