I have been highly critical of Gov. Gretchen Whitmer for her misrepresentation of a state supreme court ruling that she violated the state constitution in her pandemic orders, a false account echoed by NBC’s Chuck Todd. However, the move today to impeach Whitmer is wrong for many of the same reasons raised in my testimony against the impeachment of President Donald Trump. Whitmer did violate the Constitution, as have other public officials in other states. However, this was a legal dispute on the scope of her discretion that was resolved by the state courts. We cannot have impeachment as a type of “no confidence” vote on chief executives.
Article 12 of the Michigan Constitution parallels the language of the federal constitution with a slight difference:
The house of representatives shall have the sole power of impeaching civil officers for corrupt conduct in office, or for crimes or misdemeanors; but a majority of the members elected shall be necessary to direct an impeachment.
It does not use “high crime or misdemeanors.” Also treason is not a state offense so the identical standard of “Treason, Bribery, or other high Crimes or Misdemeanors” would not work on the state level. Yet, it is clear that the language is meant to establish a high standard of proven wrongdoing and not mere disagreements with policies and priorities. The Michigan standard references “corrupt conduct” or “crimes or misdemeanors” — allegations that encompass serious and objective misconduct. Every modern president has lost constitutional cases in federal courts as have many governors. We have a court system to address such controversies, but a ruling against a president or governor is not instantly grounds for removal from office.
Three Republican members in the Michigan House of Representatives introduced a resolution for impeachment against Whitmer for failing to respect the separation of powers by exercising power granted to the legislative branch, violating the constitutional rights of the people of Michigan, issuing executive orders against the interests of the people and state, and using state resources to reward political allies.” Those are all valid political objections, but they fail short of constitutional grounds for impeachment in my view.
As I previously wrote in relation to the Trump impeachment:
Parliamentary systems, like Great Britain’s, allow for “no confidence” motions to remove prime ministers. Parliament can pass a resolution stating “That this House has no confidence in Her Majesty’s Government.” But that’s not our system, and it’s doubtful that the members of Congress calling for Trump’s impeachment would relish a parliamentary approach: When such a vote succeeds, the prime minister isn’t necessarily the only politician to go. If the existing members of parliament can’t form a new government in 14 days, the entire legislative body is dissolved pending a general election…
The Constitution’s framers were certainly familiar with votes of no confidence, but despite their general aim to limit the authority of the presidency, they opted for a different course. They saw a danger in presidents being impeached due to shifts in political support and insulated presidents from removal by limiting the basis for impeachment and demanding a high vote threshold for removal. There would be no impulse-buy removals under the Constitution.
The same holds for true for governors, including Whitmer.
Would love to have Professor Turley write a piece on “Stiffer enforcement and penalties for officials that violate the U.S. Constitution and their Oath of Office – not by honest mistake but premeditated violations”.
Any law, including “the supreme law of the land” is meaningless if it lacks a risk of penalty for law breakers creating a deterrent effect – if watchdogs choose not to enforce certain laws for certain people. Many Americans have lost faith in America’s justice system through this cherry-picking of enforcement.
For example: does anyone today believe Bush DOJ attorneys, from America’s top law schools, didn’t know torture, kidnapping, false imprisonment, warrantless domestic spying (Cointelpro) were felony crimes in the USA and even applied to presidents? Does anyone believe those DOJ attorneys knew they weren’t violating American laws but binding international treaties? The Bush DOJ attorneys and accessories didn’t get indicted, most got promoted. At the very minimum, these premeditated law breakers should have been disbarred from practicing law. Today one former Bush attorney even serves as a federal appeals court judge, standing in judgement of lowly citizens more law abiding than the judge. Why would any American believe we have a rule of law system with equal justice under law? This choice of non-enforcement created an incentive for future presidents to break more laws.
JT, You don’t seem to understand what has happened in Michigan. Whitmer should be under arrest. She has willfully violated a legal ruling/order (twice now) of the MI state supreme court.
If she disagrees w/the order she may engage in civil disobedience. This means she is willing to face legal consequences for her actions. She will not do this. Instead, she is openly defying the US and State Constitution engaging in the very same actions which the Mi supreme court had already ruled was constitutional.
She should be in jail. Baring that, she should be impeached.