Can Dann Be Impeached or Removed?

Scandal plagued Ohio Attorney General Marc Dann is holding firm and refusing to resign. Indeed, he's hired a political opposition-research firm to assist in communications. Still, every prominent political figure from Dann's own political party, including the Governor, has said Dann must resign or face impeachment.

If Dann had any honor, he'd resign. That much is plain. But does that mean he should be impeached? Has he even engaged in impeachable offenses? The Ohio Constitition provides that any state officer may be impeached for any misdemeanor in office." The key question, it seems to me, is what qualifies as a "misdemeanor."

Under one reading, this would require that an officer actually commit a crime in order to be eligibe for impeachment. After all, "misdemeanor" typically connotes a particular category of crime. I find this reading implausible, however, as it would suggest that a state officer can be impeached for committing lessor crimes ("misdemeanors") but not greater crimes ("felonies"). I suppose one could argue that in most cases, the commission of a felony will include the commission of a misdemeanor as a lesser-included offense, but I still find this argument unpersuasive.

I find more plausible a reading of the Constitution that uses "misdemeanor" in the traditional sense of meaning a "misdeed" or "an instance of misbehavior." (See various definitions here.) Under this definition, Dann has clearly committed impeachable offenses, even if one ignores his affair, including misleading investigators, misappropriation and misuse of state resources, accommodating and enabling misdeeds by his subordinates, and contributing to the creation of a hostile work environment within the state AG's office, among other things. And I am willing to bet more will be revealed by pending investigations and litigation.

For more on whether Dann should be impeached, see this debate between two Columbus Dispatch writers. (Yes, No).

Interestingly enough, under Ohio law, there is another way for Dann to be removed from office. The Ohio Constitution provides:

Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the general assembly, for any misconduct involving moral turpitude or for other cause provided by law; and this method of removal shall be in addition to impeachment or other method of removal authorized by the constitution.
The relevant removal provisions of the Ohio Code provide for the initiation of judicially administered removal proceedings upon the filing of a complaint signed by a number of voters equal or grater to fifteen percent of the votes cast in the last gubernatorial election. Importantly, the standard for removal incorporates a fairly broad definition of official misconduct that would justify impeachment. Section 3.07 of the Ohio Code provides:
Any person holding office in this state, or in any municipal corporation, county, or subdivision thereof, coming within the official classification in Section 38 of Article II, Ohio Constitution, who willfully and flagrantly exercises authority or power not authorized by law, refuses or willfully neglects to enforce the law or to perform any official duty imposed upon him by law, or is guilty of gross neglect of duty, gross immorality, drunkenness, misfeasance, malfeasance, or nonfeasance is guilty of misconduct in office. Upon complaint and hearing in the manner provided for in sections 3.07 to 3.10, inclusive, of the Revised Code, such person shall have judgment of forfeiture of said office with all its emoluments entered thereon against him, creating thereby in said office a vacancy to be filled as prescribed by law. The proceedings provided for in such sections are in addition to impeachment and other methods of removal authorized by law, and such sections do not divest the governor or any other authority of the jurisdiction given in removal proceedings.
Whether or not one believes Dann is guilty of a "misdemeanor" justifying impeachment under the Ohio Constitution, it seems to me that he is clearly guilty of "misconduct" as defined by the Ohio Code, and vulnerable to a removal action. Initiating such an action would be costly - requiring the collection of over 600,000 signatures -- and placing Dann's fate in the hands of the judiciary could unduly politicize that branch. Bipartisan impeachment proceedings would be preferable to a citizen-initiated removal action, and a resignation would be best of all.

At the time the Ohio constitution was founded, wasn't adultery (Dann's affair) a crime, even if just a misdemeanor. Thus the founders would have intended that extramarital activities be a cause for impeachment &removal from office.
5.8.2008 10:49am
Soronel Haetir (mail):
If all it takes is a vague suspicion of wrongdoing and 15% of the populace to start the judicial proceeding, I'm surprised that every state officer isn't continuilly embroiled in such actions. That seems like an extremely low hurdle to clear.
5.8.2008 11:09am
rbj we don't want to kick all of them out, just Dann.
5.8.2008 11:36am
I think an Attorney General should be held to a higher standard of conduct than other elected officials, including a governor. The hurdle should be low.
5.8.2008 11:42am
PatHMV (mail) (www):
There's always the power of the purse. The legislature could pass a supplemental appropriations bill providing that no funds appropriated to the AG's office could be used to pay the salary of the AG. Even if there's some constitutional provision protecting such pay, the legislature could defund the expenses of his personal office, his secretary, his travel expenses, his car allowance, all of his personall staff.

Additionally, legislation could temporarily remove any statutory powers vested in the AG.
5.8.2008 12:57pm
CDU (mail) (www):
Soronel Haetir wrote:
If all it takes is a vague suspicion of wrongdoing and 15% of the populace to start the judicial proceeding, I'm surprised that every state officer isn't continuilly embroiled in such actions. That seems like an extremely low hurdle to clear.

It sounds like an extremely high hurdle to me. 15% of the number of votes cast is a pretty huge number. For comparison, it takes the signatures of 12% of the voters to initiate a recall of a statewide official in California. In the state's entire history only one recall petition drive has been successful (to recall Gray Davis in 2003) and the effort to collect enough signatures cost millions of dollars.
5.8.2008 1:14pm
Richard Posner's Affair of State posited a good example of how impeachment can be necessary despite the absence of a criminal offense: if a president (or other official) decided to move to Saudi Arabia where he could have 3 wives and run his office by email and video link, he'd have to go, even if that is not a criminal offense. When an official's conduct has become intolerable to the public, he's got to go.
5.8.2008 2:33pm
shocked, shocked (mail):
Have any non-political citizens began circulating a petition yet? How does that work? How are the names verified?
5.8.2008 2:35pm
fishbane (mail):
He should go, yes. The honorable thing would be to resign, but if he needs to be forced out, then that's fine, too. But what I'm interested in is political considerations: One can make the case that he should just go, based on ethics. One can also make the case that he should hang on, to avoid an election for his successor. That case is weakened by the fact that his party peers seem to want him gone, leading to wondering about other machinations and perception-management issues.

I haven't lived in Ohio in nearly 30 years (thank dog), so I can't say what the political climate there is like, or what the calculations are. But I find the games interesting.
5.8.2008 8:10pm
Nothing prevents the citizens of Ohio from again prohibiting adultery, as many other states still do. And there are good arguments that they should.

But unless and until they do so, I do not beleive the term "misdemeanor" should be stretched to accommodate conduct which has not been made illegal.

The very purpose of limiting impeachable matters to high crimes and misdemeanors is to prevent political opponents from removing duly elected officials (such as those monitoring them) for something less than serious illegal conduct. If people have not performed appropriately or have garnered a bad reputation, the citizens can vote not to continue them in office.
5.8.2008 11:00pm
Gaius Marius:
I don't know what the big deal is. All Marc Dann did is have a few too many drinks and take a few sexual liberties with some employees.
5.10.2008 2:18pm