As I wrote a post recently regarding whether Virginia governor Ralph Northam could be impeached for a racist photo that appeared on his medical school yearbook page decades earlier (I said no), I temporized regarding a more difficult hypothetical. Suppose that after an individual has assumed office, it comes to light that he committed a serious crime, such as murder or rape, years before taking office and completely unrelated to his political life? Note that this question has implications for whether a president can be indicted because, if a president can neither be indicted nor impeached for some serious criminal offenses preceding his time in office, it means that he would be effectively immune from accountability for the remainder of his term.
Thanks to Virginia lieutenant governor Justin Fairfax (good job, Virginia), this hypothetical has come to life. Fairfax is accused of two separate sexual assaults, both of which long preceded his time in office. Fairfax denies the allegations. A member of the Virginia House of Delegates has announced that if Fairfax does not resign, he will introduce an impeachment resolution as early as Monday. This raises the question whether the allegations against Fairfax are grounds for impeachment.
This is not an easy question. In his recent book, Professor Michael Gerhardt, one of the leading scholars on impeachment, discusses the hypothetical of a presidential candidate “who lied about committing a murder during the campaign but then later is discovered to have been responsible for that crime.” Michael J. Gerhardt, Impeachment: What Everyone Needs to Know 56 (Oxford U. Press 2018). Gerhardt notes the recent case of federal judge Thomas Porteous, who was impeached by the House and convicted by the Senate in part based upon lying during the confirmation process about corrupt behavior as a state judge. (We also discussed the Porteous case here).
Porteous argued in his defense that misconduct committed as a state court judge was irrelevant to impeachment as a federal judge. As Gerhardt explains, however, the House rejected this argument, taking “the position that there was a connection between the misconduct and his current office, for he had lied about the misconduct to the president, who nominated him to the office; to the Federal Bureau of Investigation, which did his background check; and to the Senate, which confirmed him.” Gerhardt, supra at 56. Because there was “a connection between the misconduct and the judge’s securing the federal judgeship he held,” the “House unanimously impeached the judge, and the Senate convicted him on the basis of several impeachment articles, including lying to the Senate.” Id.
To resolve the hypothetical of the presidential candidate who lies about murder, “[t]he critical thing is to establish a clear connection between the misconduct and the president’s securing the office he occupies.” Gerhardt,supraat 56. Thus, Gerhardt explains:
If, for example, the people elected a president with full knowledge of the misconduct (e.g., they had known he had killed someone in a duel, which happened to be the case with President Jackson), then impeachment would seem inappropriate because the public appeared to have effectively ratified (or accepted) the misconduct. Given that impeachment is not supposed to be a substitute for elections, it seems improper to punish a president for the misconduct, which the voters had a chance to use against him but chose not to (for whatever reason). If, however, the voters did not know about the misconduct until after the election or it turns out that only after the election did the voters discover that what the president told them was untrue, a good argument could be made that the president effectively defrauded the voters to secure office.
Under Gerhardt’s analysis, the “easiest” case is one where a candidate is accused of serious misconduct, credibly denies it, and after being elected it turns out he was lying. In such a case we can reasonably assume that the voters would have decided differently had the candidate had told the truth.
A somewhat more difficult case is illustrated by the allegations (at this point pretty much uncontested) that then-presidential candidate Donald J. Trump paid “hush money” shortly before the 2016 election to women with whom he had extramarital affairs. These payments may or may not have been criminal, but we can assume that they were designed at least in part to prevent the women from coming forward at an inopportune time during the election. However, it is less than obvious how material this information should be considered. Voters were presumably well aware of the fact that Trump had a long history of extramarital affairs and it is unclear whether these particular cases would have made any difference in their decision.
The Fairfax matter, on the other hand, presents the reverse problem. As far as I know, Fairfax did not lie or otherwise seek to cover up his prior misconduct during his election campaign for lieutenant governor (presumably it did not occur to anyone to ask him whether he had committed sexual assault). On the other hand, if we assume that Fairfax is in fact guilty of sexual assault (something, we should reiterate, he firmly denies), there can be little doubt that this information would have been material to voters at the time.
If Fairfax is to be impeached, then, it either has to be on a theory that sexual assault itself is a “high crime or misdemeanor” even if it occurred long before the officeholder was elected and has nothing to do with his official duties, or that his election was the result of “constructive fraud” because he failed to volunteer information about his prior misconduct. Either of these theories would put the Virginia General Assembly in uncharted waters as far as impeachment precedent goes.
One could try to bolster the case against Fairfax by arguing that he has lied about the sexual assault allegations while in office. This strikes me as a bit of bootstrapping. If Fairfax had not committed an impeachable offense at the time that the allegations against him surfaced, I am not sure that merely denying the allegations should be considered impeachable. If that turns out to be the case, however, it will mean that in the future officeholders will be advised by their counsel not to comment on any charges so as to avoid committing an impeachable offense.
Finally, we should observe that while most impeachment commentary focuses exclusively on federal impeachment, Virginia’s impeachment process would take place under its state constitution. Generally, the standards for impeachment under state constitutions are similar to the federal standards, but each state may differ somewhat in how it interprets or applies them. This memorandum attempts to comprehensively canvas state impeachment cases (none of which appear to be from Virginia). As best I can tell, there are no cases which seem to shed much light on the Fairfax situation.
If Fairfax is impeached, therefore, it appears he can accurately claim that this is the first time in American history that anyone has been impeached solely for conduct occurring prior to taking office or for private misconduct that was unconnected to his office or official duties.