I have been very critical of Governor Gretchen Whitmer for misrepresenting a Supreme Court ruling that she violated the constitution in her pandemic orders, a false report echoed by NBC’s Chuck Todd. However, today’s move to indict Whitmer is wrong for many of the same reasons I mentioned in my testimony against President Donald Trump’s impeachment. Whitmer has violated the Constitution, as have other officials in other states. However, this was a legal battle over the scope of their discretion which was settled by the state courts. We cannot have an impeachment as a kind of vote of no confidence in directors.
Article 12 of the Michigan Constitution corresponds to the language of the federal constitution with one minor difference:
The House of Representatives has sole power to indict civil servants for corrupt official conduct or for a crime or misdemeanor. However, a majority of the elected members is required to cause an impeachment.
No “major offense or misdemeanor” is used. Treason is not a criminal offense of the state either, so the identical standard of “treason, bribery or other high crimes or misdemeanors” would not work at the state level. It is clear, however, that the language is intended to set a high standard for proven misconduct, and not just disagreement with guidelines and priorities. The Michigan Standard refers to “corrupt behavior” or “crime or misdemeanor” – allegations that include grave and objective misconduct. Every modern president has lost constitutional cases in federal courts, as have many governors. We have a court system to deal with such controversy, but a decision against a president or governor is not an immediate cause of impeachment.
Three Republican members in the Michigan House of Representatives tabled a resolution for Impeachment proceedings against Whitmer for failing to respect the separation of powers by exercising delegated power, violating the constitutional rights of the people of Michigan, issuing executive ordinances against the interests of the people and the state, and using state resources to reward political allies. “These are all legitimate political objections, but I believe there are no constitutional grounds for impeachment.
Parliamentary systems like the UK’s allow suspicion motions to remove prime ministers. Parliament can pass a resolution saying, “This House has no confidence in Her Majesty’s Government.” But that’s not our system, and it is doubtful that members of Congress calling for Trump’s impeachment would enjoy a parliamentary approach: if such a vote is successful, the prime minister may not be the only politician to leave. If the existing MPs fail to form a new government within 14 days, the entire legislative body will be dissolved pending a general election.
The drafters of the constitution were certainly familiar with voices of no confidence, but despite their general aim of diminishing the authority of the presidency, they chose a different course. They saw a danger in impeachment of presidents due to shifts in political support and isolated presidents from removal by restricting the basis for impeachment and demanding a high voting threshold for removal. Under the Constitution, there would be no impulse buying distances.
Same goes for governors, including Whitmer.