The Pennsylvania state Senate has announced plans to explore the use of an obscure constitutional clause to supposedly quickly remove state Attorney General Kathleen Kane from office.
But that unusual path carries with it many serious, if fascinating, problems that are at once legal, political, and historical in significance.
Foremost among the problems: the Senate hopes to invoke a clause, added to the state constitution in 1873, that was never intended to apply to the state attorney general.
Nor, records of the convention show, was it meant as a substitute for full hearings conducted by both houses of the legislature in the proper impeachment proceedings of high-level state officials like the attorney general.
The clause in question, which today is found in Article VI Section 7 of the state constitution, reads:
“All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.”
Amazingly, what no one seems to consider today, when reading the wording of this clause from 1873 and attempting to interpret it to today’s circumstances, is that the state attorney general was not elected until 1980.
Zion Lutheran Church in Harrisburg, where 1872 convention was convened
This sentence, mentioning, “officers elected by the people” did not even apply to the attorney general -- nor was it intended to apply to such a high-ranking elected state office holder -- when it was originally added to the constitution in the 19th century.
But the problems and oversights get worse from there.
Last month GOP state Senate President Pro Tempore Joe Scarnati announced the formation of a seven-member committee of senators, including himself, to explore the possibility of invoking this clause to remove Kane from office.
The present day reading and interpretation of a little-used, nearly 150-year-old clause is fraught with problems, large and small, having not only to do with the intent of its framers and constitutional law, but outdated language usage.
Sen. Scarnati and his lieutenants, for example, have said they will invoke the clause to determine AG Kane’s “competency” to serve without a law license.
Though the words “competency” and “competence” appear many times in the 1872-73 constitutional convention debate over this clause, the word had a much different meaning than it does today.
In 1872, records show, the word was a veiled expression to describe office holders who had with time grown incompetent, or senile: what today we call Alzheimer’s disease.
Sen. Scarnati says his committee, moreover, will explore the use of the clause for the very narrow and limited question of whether Kane can continue to serve as attorney general when her law license has been suspended by the state supreme court.
But records of the convention of 1872-3 show that the clause’s framers intended it to invoke “full hearings” on a broad spectrum of all pertinent issues, akin to impeachment hearings, and certainly not focused on a single, narrowly defined issue as described by Sen. Scarnati.
The constitutional phrase, and the intent of its framers, clearly demands a “full hearing.”
Fast and loose, superficial reading of a flawed clause
For months Kane’s political opponents have bandied about this “direct address” removal clause as a means to quickly remove the attorney general from office.
Political observers have suspected that Kane’s law license suspension and the resulting crisis appear to have been manufactured from the start by Kane’s opponents as a deliberate means to invoke the little-used removal clause.
Trouble is, Kane’s opponents strangely never bothered to investigate the historical use of the clause, nor its intended purpose.
For months, for example, Kane’s opponents said the clause had never been used before.
Until I pointed out, in an article I wrote this September, that a “direct removal” attempt had occurred -- and failed -- in 1891.
“The procedure is so rare that reporters, lawyers and political commentators thought it had never been used,” wrote the Allentown Morning Call. “But Harrisburg-area author Bill Keisling found a record of its use in a Senate journal from 1891 and blogged about it.”
In fact, the “direct removal” procedure was not used only once, but at least twice in the state’s history -- all in the 19th century, and within a few years of the clause’s placement into the constitution.
In addition to the 1891 failed attempt to remove the state treasurer and auditor general for alleged financial chicanery, use of the clause on other occasions is mentioned in passing in the book, Commentaries on the Constitution of the United States (Roger Foster, Boston Book Company, 1895).
In at least one of these cases, the clause to remove a state office holder was used for its intended purpose: “mental incapacity,” or senility.
“The senate of Pennsylvania has also addressed the governor for the removal of Edward Rowan, high sheriff of Philadelphia, and Judge John M. Kirkpatrick of Pittburg -- the later in 1885, both for physical and mental incapacity,” reports Foster in his 1895 book. (In fact, author Foster was incorrect: Pittsburgh’s Judge Kirkpatrick, 60 years old at the time, defintely was crackers, as attested to by a “petition of a large number of members of the bar of Allegheny county,” but was removed from office in 1885 not by “direct address” of the Senate, but jointly by the House and the Senate, under provisions for removing an incapacitated “judge of a court of record” [then-Article V Section 15]).
The glaring fact that Kane’s political opponents -- judges, lawyers and state senators who supposedly place great importance on words, precedent and intent -- haven’t done their homework or due diligence raises as many if not more questions about them, and their own “competency,” as it does about AG Kane.
Records of the 1873 convention tell the story
To understand how and why this little-understood clause was added to the Pennsylvania constitution in 1873 we must read the records of the convention.
Lucky for us, a rather full record of the 1872-3 constitutional convention was placed online by Duquesne University and can be read here.
Duquesne not only posts the voluminous journals of the convention but also, of interest to us here, nine complete volumes of the debates of the convention, which explain the reasoning for, and debates surrounding, the clause.
The constitutional convention was convened in November 1872 at the Lutheran Church in Harrisburg. It ran until November 3, 1873. Its work was ratified by voters on December 16, 1873, and took effect January 1, 1874.
Thanks to Duquesne University, we can read the debates of the 1872-3 convention here. The convention convened in Harrisburg in November 1872, and reconvened in Philadelphia after the holiday in 1873.
Among the 27 standing committees at the convention was the six-member committee that drafted the clause in question: the Impeachment and Removal from Office Committee.
When reading the records of this committee and its convention, we must keep in mind that we’re looking back to a time not even a decade removed from the close of the American Civil War.
Issues debated at the 1872-3 convention included such controversial topics of the day as “female suffrage” (women wouldn’t be given the vote in the U.S. for almost another half century, until a constitutional amendment was ratified by the states in 1920); whether divorce should be legal in Pennsylvania; and whether “professional gamblers” should be allowed to hold office.
So these are just some of the social mores from another time and place that today’s Pennsylvania state senators are attempting to shoehorn, inappropriately, into today’s society.
How far removed was this 1872 convention from today’s society?
Without a single exception, state office holders are described in the 1872-3 convention papers with the masculine pronoun “he.”
Convention delegates in 1872 not only would be floored to discover that the state attorney general in 2015 is a woman, but also that she was elected, not appointed.
And they’d certainly also be shocked that today’s senators would attempt to remove the second highest elected state official -- who is vested with far more powers than the lieutenant governor -- from office without a proper impeachment proceeding, as was their clear intent for such “high” office holders in 1873.
Wording over ‘direct removal’ clause in 1872
Records from the 1872-3 convention make clear that the “direct removal” clause was just as controversial then as it is today.
What’s striking is that every word of the proposed clause was debated keenly, and parsed for meaning.
The convention’s standing committee on Impeachment and Removal from Office ended up drafting four sections, some of which carried over from the 1837 state constitution.
We must read all four sections to understand what the committee did, and why.
The 1872-3 sections read:
SECTION 1. The House of Representatives shall have the sole power of impeaching.
SECTION 2. All impeachments shall be tried by the Senate. When sitting for that purpose the Senators shall be upon oath or affirmation. No person shall be convicted without the concurrence of two-thirds of the members present.
SECTION 3. The Governor, and all other civil officers under this Commonwealth, shall be liable to impeachment for any misdemeanor in office; but judgment in such cases shall not extend further than to removal from office, and disqualification to hold any office of trust or profit under this Commonwealth; the party, whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment, according to law.
SECTION 4. All officers shall hold their offices only on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office, or of any infamous crime. Appointed civil officers, other than judges of the courts of record and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed. All officers elected by the people, except Governor, Lieutenant Governor, members of the General Assembly, and judges of the courts of record learned in the law, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.
In turn, for the most part, with only minor changes of wording, these constitutional sections from 1873 were carried over to the state’s present-day constitution, drafted in the 1960s, without much thought or alteration.
To use a modern-day computer analogy, it would be as if a flawed operating system, bugs and all, were simply moved to a modern operating system, without thought or concern for changes shown necessary by fault or time.
In the century or so before the 1872 convention, impeachment, particularly of judges, was a somewhat common occurrence in Pennsylvania.
With this in mind, the convention’s standing committee on Impeachment and Removal from Office in 1872 attempted to accomplish several things.
In their work, they wanted to bring the impeachment of county district court and appellate judges into “harmony” and consistency with the removal of other state office holders. (There was another standing Judiciary Committee whose language on judicial impeachments they wanted to “harmonize” with their own sections. That’s why these “high” judges of “courts of record” are specifically mentioned and treated separately, as opposed to the myriad of local justices of the peace, whose court proceedings are not recorded.)
The first three sections, and the first line of Section 4 (“All officers shall hold their offices only on the condition that they behave themselves well while in office“) sailed through the 1872-3 convention with nary a challenge.
But the committee also searched for a means to quickly remove from office the legions of “low level” state officials, such as the hundreds of local aldermen and justices of the peace, without needlessly tying up both houses of the legislature in lengthy impeachment proceedings to fry these small fish.
The last two lines of Section 4, concerning the removal of appointed and elected officials, proved to be a minefield for the 1872-3 convention, with many challenges and suggested changes in wording.
Obviously, the convention was told, you’d need a means to remove an appointed office holder, such as a cabinet official, less they presume they were appointed for life.
But just as obviously, you didn’t want the state Senate to summarily remove the governor’s appointed secretary of state, for example. Nor did you want to give the governor power to remove the House of Representative’s pick for sergeant of arms.
So the third line of Section 4 reads: “Appointed officers may be removed at the pleasure of the power by which they are appointed.”
This was where, in 1872, the state attorney general came in: the attorney general at the time was appointed by the governor, and so, back then, could only be removed by the governor, unless impeached, or found guilty of a crime.
In fact, at the convention, the problems associated with an appointed attorney general were considered.
A foot in four centuries: Prominent Philadelphia attorney and politician William Meredith was president of the 1872-3 Pennsylvania constitutional convention. Meredeth served as U.S. Secretary of Treasury in the cabinet of Zachary Taylor, and was Pennsylvania attorney general during the Civil War. He also had been a delegate in the 1837 state constitutional convention. He was the former owner of the Wheatland Estate in Lancaster, which he sold in 1848 to future president James Buchanan. Here he poses in a Daguerreotype taken by Matthew Brady. Born in 1799, his work is suddenly relevant today, in the 21st century.
The section on the appointment of the attorney general reads:
“(The governor) shall nominate, and by and with the advice and consent of two-thirds of all the members of the Senate, appoint a Secretary of the Commonwealth and an Attorney General during pleasure, and such other officers of the Commonwealth as he is or may be authorized by law to appoint.”
So the secretary of state and the attorney general were, by specific mention, the two most important appointments made by the governor.
The importance, and inherent problems, of the appointment of the attorney general were not lost on convention delegates in 1872.
A minority report to the convention suggested the attorney general be elected, for reasons pertinent and prescient today:
“If he were exclusively the legal advisor to the governor,” the report reads, “it would be proper and right that he should be appointed by the Chief Executive officer, but as he is the law officer of the Commonwealth and, as such, is required to give his opinion on all legal questions affecting the interests of the people of the State ... it is believed that his election by the people would place him in as position of greater independence of thought and action, than if he held his office upon any uncertain tenure.
“In times of political excitement, when grave constitutional questions require deliberate consideration, and when the Governor would desire to be sustained in his views, which might be wholly of a partisan character, a difference of opinion between him and the Attorney General might result in the removal of the latter, that his place be filled by one more pliable and less contentious in the performance of his duties.
“The Attorney General, in the discharge of his duties as to constitutional questions arising from the power of the Legislature ... which might conflict with the rights and interests of the people, should not be restrained or influenced by partisan sympathy, or the power of removal from office.
“It may happen too, that partisan zeal and activity, rather than fitness and honesty, may prompt the dispensation of patronage; and combinations of factions, operating as well in the concentration of power in nominating conventions, as in the popular sentiment, may control appointments prejudicial to the general welfare.” (See Debates Vol. 2, page 350.)
Legislators and voters wouldn’t accept this recommendation that the attorney general be elected-at-large for more than a century. But when the constitution was amended in the late 1970s to provide for an elected AG, the century-old rules of removal of low-level elected officials would still be in place.
Not only did lawmakers carry these antiquated rules over in the constitutional convention of the 1960s, but they also overlooked them again when they made the office of attorney general elective in the late 1970s.
The importance of these oversights becomes apparent when one reads the debates of the convention of 1872-3, and the meaning and intent of the last line of Section 4: “Elected officers, other than Governor, Lieutenant Governor, members of the General Assembly, and judges of courts of record learned in law, shall be removed by the Governor, for reasonable cause, on the address of two-thirds of the senate.”
Simply put, when the attorney general became an elected officer, he (or she) was no longer covered by the third sentence, providing for an appointee to be removed at the pleasure of the governor.
An elected attorney general certainly would have been added by 1872 convention delegates to those “high” offices, including the “Governor, Lieutenant Governor, members of the General Assembly, and judges of courts of record” that could not be removed by direct address, but only by impeachment.
We know this because of the contentious debate surrounding the fourth sentence, the direct removal clause, and the passion this new means of removal stirred in the 1872-3 convention.
‘Dangerous power of removal by a single house’
Delegates in 1872 grappled with the problem of how to remove from office legions of low-level office holders -- hundreds or perhaps thousands of low-level state office holders like local justices of the peace, inspectors (there were actually tree bark inspectors), tax collectors, and aldermen -- without tying up both houses of the legislature in full-blown impeachment proceedings.
“It was thought ... that there was a very large number of elected officers whose fault would consist rather in incompetency than in anything else. The faults likely to be attributed to them are, of course, very difficult to define, and it was thought best not to throw too much difficulty in the way of their removal,” the convention was told by delegate George Biddle, chairman of the removal committee. (See Volume 3, page 225.)
These officers of the lower grade would come to include, for reasons we’ll see later, elected officials all the way up to the state treasurer and the auditor general. It wasn’t simply about “row officers” as we would call them today.
“Other officers of a higher grade are not to be removed, except upon impeachment or address of both Houses of the Legislature, two-thirds of each house consenting,” delegate William Darlington told the convention (see Volume 3, page 226.)
‘Other officers of a higher grade are not to be removed, except upon impeachment or address of both Houses of the Legislature.’
Even so, delegate Wayne MacVeagh, of Dauphin and Lebanon Counties, offered a prescient warning to today’s Pennsylvanians when he told the convention that limiting removal of elected officers to a single legislative body, without a full and fair impeachment trial in both houses, “seems to me like a very dangerous power... (T)here may come a time of popular excitement, times of unjust prejudice, when the whole power of changing the elective officers of this state will rest in two-thirds of your Senate, without any trial, without any hearing, without any opportunity for defense.” (Volume 3, page 225.)
“It is not unusual for one political party to have two-thirds of the Senate,” MacVeagh went on. “You cannot tell that the political power of the Senate will always be as evenly balanced as it has been heretofore, and it seems to me that to allow a mere numerical majority of two-thirds of that body to say that certain persons who have been elected and commissioned to hold these offices shall vacate them, and that they shall be turned out without any trial or judgment in any court of law ... is putting a dangerous power in their hands.”
Incompetence and criminality
The issue of competency, and incompetent office holders, certainly was addressed by the convention. The danger of incompetent judges in particular was raised repeatedly (though the issue of judges sharing pornographic emails wasn’t a concern in 1872).
The dangers of incompetency in 1872 largely meant growing senility.
Delegate William Darlington told the convention, for example, “We are to assume, in the first place, that the people will elect competent officers and honest men. We must assume that. There may be cases where men will become incompetent or become criminal after election, and when this should be ascertained by a careful inquiry, not by one House alone, but by both, and two-thirds unite in saying that an officer thus elected by the people is no longer worthy to hold the office, then give the power to remove. But the danger, it seems to me, of subjecting any officer elected by the people to remove for caprice, if you please, for the body that may say he must be removed, may do it from caprice; or to say that any officer shall be removed by one portion of any other body without some safe check upon the body that can remove, is confiding a power which, it seems to me, is more important than you have ever confided to them before.”
The issue of a single legislative body removing an elective office holder of any rank became increasingly contentious, and was tabled by the convention several times.
On the 77th day of the convention, on March 28, 1873, Dalington rose to tell the convention, “The constitution now provides that all civil officers shall be impeached and removed from office for misbehavior or infamous crime. A provision now exists, and it is proper that it should exist, for removal of officers who shall be found incompetent, or whose continuance in office would be prejudicial to the public interest, although they may not be convicted of any infamous crime or misdemeanor within the meaning of the Constitution. All civil officers may be impeached. The term is well understood.
“The House of Representatives shall have the sole power of impeaching and the Senate shall try, and it shall acquit or condemn,” Darlington continued. “But for other offenses, not necessary to resort to impeachment in order to cure, it has always been a provision of the Constitution that they may be removed by the governor upon the address of two-thirds of each branch of the General Assembly....
“While we provide that the Governor and Lieutenant Governor and all judicial officers are liable to impeachment and removal, and necessarily so, yet there are a vast number of officers to whom it seems proper to apply a more speedy remedy; yet it should not be applied without due consideration, nor without the check which the judgment of one House of Assembly shall have upon the other. All officers elected by the people are thus to be treated.
‘there are a vast number of officers to whom it seems proper to apply for a more speedy remedy’
“They may be impeached, it is true, but it may happen that it may become necessary to remove an officer more speedily than trial by impeachment may accomplish. Take for instance your office of State Treasurer, who will be elected by the people. Immediately upon his election he may be discovered to be totally unfit for the office, or he may have designs upon the treasury, by removal of its funds, and for which his security may be inadequate or insufficient as a remedy, and it may be important that he be removed, and promptly; but I would not give it to the Senate alone to remove him.
“I would say that whenever the representatives of the people in each branch of the Legislature, two-thirds concurring, shall require the Governor to remove an officer it shall be his duty to remove him promptly, without waiting for the tedious, troublesome and expensive method of impeachment. The safety of the public interest may require prompt action. We are bound to suppose that extreme cases may arise. So with regard to your Auditor General; he has vast power. He is elected by the people. He may pass an account through his office, which may take millions of dollars from the Treasury. It should be in the power of the representatives of the people and the executive to remove him promptly, and if anything serious should be wrong. Thus I would make every officer removable, whether elected by the people or appointed.” (see Volume 3, page 231.)
Darlington, who served as chairman of the convention’s Education Committee, lost the fight that both houses of the legislature should vote to remove an office holder on an emergency basis.
But Darlington’s point that an elected state treasurer and auditor general should be included in the long list of “lower tier” office holders who should be removed in an emergency seems to have contributed to the final outcome of the 1873 constitutional change.
Even so, nowhere was the attorney general mentioned as an officer who could, or should, be removed on emergency basis by the senate.
In the case of Attorney General Kathleen Kane, GOP state senators and her other political opponents advance the spurious claim that the suspension of her law license makes her suddenly incompetent or otherwise unfit to hold office.
But this supposed “incompetence” was, arguably, artificially manufactured by her political enemies on the court and elsewhere. She is certainly not a victim of sudden senility.
Moreover, as I’ve pointed out elsewhere, 22 other states do not require their attorneys general to be licensed members of the bar. Nor is the U.S. attorney general, or justices of the U.S. Supreme Court, required to be members of a state bar.
By the same argument used against AG Kane, all those office holders would be “incompetent” and unfit to hold office too.
Time has come for honest review
On June 9 1873, the final approval of the constitutional changes recommended by the Impeachment and Removal committee were put to convention delegates for vote.
Sections 1, 2 and 3, relating to impeachment in the House, and trial in the Senate, and officers liable for impeachment, passed easily.
Also passing easily was the first sentence of Section 4: “All officers shall hold their offices only on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime.”
But the last sentence of Section 4, allowing for direct removal of lower-tier elected officers “for reasonable cause, after due notice and full hearing,” which is now causing turmoil in the 21st century, continued to cause consternation in 1873. They kept stumbling over this troubling sentence in 1872-3 as we’re now stumbling over it in 2015.
Committee chair George Biddle, of Philadelphia, rose to complain, “I move to amend by striking out the words, ‘full hearing.’
“I think it is a mistake to leave these words in the paragraph,” Biddle said. “There is no objection to giving notice; but it seems to me that every time the Senate or two-thirds of the Senate make an address to remove an incompetent officer, to provide that he have a full hearing is to make this section entirely useless. Let him have notice; let him have such a hearing as may be necessary; but if a ‘full hearing’ is to be the equivalent of a trial, it will just re-introduce what we’re trying to get rid of. We are trying to provide a speedy remedy for the removal of incompetent men, and you might just as well try to impeach these incompetent officers as to give them a full hearing. Give them a fair chance, but do not require them to have a hearing.” (see Volume 5, page 226.)
With that, Delegate Henry Palmer, of Luzerne, Monroe and Pike Counties, rose to tell the convention, “I must object to this (Biddle’s proposed) amendment. I suppose the time will never come, I sincerely hope it never will, in the Commonwealth of Pennsylvania, when a man shall be removed from any office of honor, trust, or profit without an opportunity to be heard in his own defense. This amendment seems to be altogether in violation of the principles of our institutions -- to try and convict and sentence a man without giving him a chance to be heard.”
‘This amendment seems to be altogether in violation of the principles of our institutions -- to try and convict and sentence a man without giving him a chance to be heard.’
Delegate Charles Hunsicker, of Montgomery County, months earlier had told the convention, “I desire the right to trial and that I do not desire to lodge in any person, however respectable or conservative, the right of removal without cause, and without giving the accused a fair and full hearing and an impartial trial, but I am afraid this amendment will produce a very objectionable result. I think a two-thirds or three-fourths vote of each House will produce very cumbersome machinery, and I would prefer that a derelict official should be removed after a full and fair hearing, by a vote of the Senate or House alone. I think it would be absurd to stop the whole business of legislation in the event of an impeachment of an ordinary official, by requiring a vote of both Houses to secure a removal from office.” (see Volume 3, page 232.)
More remarkable, delegate John Broomall, of Chester and Delaware Counties, pointed out, “I have some doubts about the propriety of putting in the word ‘hearing,’ as it stands in the proposition now proposed to be adopted, ‘after a full hearing.’ I think the phrase had better be, ‘after due notice and an opportunity to be heard.’ It might happen that the accused will say nothing, and then, according to the terms of the proposition, you never could remove him.” (Volume 3, page 233.)
But this was the wording accepted in 1873, and re-ratified in our current state constitution.
Delegates in 1873 pointed out that all this was a legal mess waiting to happen, and that the state judiciary would likely, at some future time, be forced to rule on the constitutionality of any “direct address” removal attempt.
Almost a century and a half later, that time may finally be at hand.
Where does this leave Attorney General Kathleen Kane?
Should the state Senate invoke Article VI, Section 7, she will clearly be entitled to a “full hearing,” akin to a full impeachment trial, and not limited to the “very narrow and limited question” of her law license, as Sen. Scarnati proposes.
Even more astonishingly, as Delegate Broomall suggested in 1873, Attorney General Kane presumably could simply write an opinion that, due to her pending criminal trial or other reason(s), she or any other defendant so situated need not appear at the Senate’s “full hearing,” that the Senate has no lawful business convening this inquiry, and since there will be no “full hearing,” as demanded before removal by the clause, the Senate’s action would be nullified, “and they could never remove her.”
No doubt the senators will be mad. What are they going to do, impeach her?
Moreover, Kane could appeal the entire suspect procedure to Commonwealth Court.
Direct address or removal as proposed in Section 7 falls squarely under the constitutional provisions of impeachment, even as the standing committee that drafted it in 1873 was titled the “Impeachment and Removal from Office Committee.”
Legal challenges to impeachment are few and far between.
That’s because impeachments ordinarily are considered “non-justiciable political questions.”
“The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn’t have jurisdiction. And it will leave that question to some other aspect of the political process to settle out,” wrote professor of government John E. Finn in 2006.
In the federal system, impeachments are covered by Article 1, sections 2 and 3 of the U.S. Constitution:
Article I, section 2 of the Constitution states that the House “shall have the sole power of Impeachment,” and,
Article I, section 3 provides that the “Senate shall have the sole Power to try all Impeachments.” Since the U.S. Constitution placed the sole power of the impeachment machinery in two political bodies, it qualifies as a political question.
Court challenges therefore are scant.
One rare exception was the 1990s case, Nixon v. United States, in which impeached federal judge Walter Nixon persuaded the U.S. Supreme Court to hear his appeal, raised on the procedural grounds that the full Senate did not hear his case as supposedly required by the constitution.
Even so, Judge Nixon lost his appeal.
The court’s opinion held that the judiciary may not review the impeachment and trial of a federal officer because the Constitution gave the Senate the “sole power to try all impeachments.”
I bring this point up because the Pennsylvania constitution reads:
“The House of Representatives shall have the sole power of impeachment.”
Under the current mess of the Pennsylvania constitution, sloppily cut-and-pasted together as it was over a century of careless revisions, AG Kane arguably has a rare, justiciable constitutional impeachment question, or several.
In Kane’s case, the state Senate is attempting a “back door impeachment,” in violation of the sole powers vested with the state House of Representatives, and to which the attorney general was not intended by framers to be subjected.
Whether Attorney General Kathleen Kane can get Commonwealth Court to take the case before proceedings begin in the Senate is another question.Saving that, the House of Representatives could impeach her, or, if a jury finds Kane guilty, they all could remove her from office under the first line of Section 7.
- Bill Keisling
posted November 6, 2015
Bill Keisling is the author of We All Fall Down: A Chronicle of an Impeachment Foretold, an account of the impeachment of Pennsylvania Supreme Court Justice Rolf Larsen.