Larry Krasner and the judiciary’s role in impeachment

A story in how to overread two court opinions

In one of the closing acts of the Republican-led Pennsylvania House of Representatives, the House voted to impeach Philadelphia District Attorney Larry Krasner—who, since his first election in 2017, has been a constant target of conservatives in the legislature. The House’s impeachment vote queued up an impeachment trial in the State Senate when the next legislative session begins.

Krasner denounced the impeachment effort, launching both an attack that was rooted just as much in public perception of the proceedings as it was on the legality of the effort. He filed a lawsuit with the state Commonwealth Court seeking to shut down the proceedings. (For the uninitiated, Pennsylvania has two intermediate appellate courts: the Commonwealth Court hears most government-focused cases, and the Superior Court hears criminal cases and whatever civil cases the Commonwealth Court doesn’t.)

Krasner’s main argument was that the offenses he allegedly committed didn’t constitute “misconduct” under the Pennsylvania Constitution. He argued that the legislature was trying to punish him, in essence, for exercising his prosecutorial discretion to not prosecute certain crimes.

When his lawsuit was filed, I’ll be honest—I didn’t think much of the this-isn’t-misconduct argument. The Pennsylvania Commonwealth Court has declined to say what constitutes misconduct before, when State Supreme Court Justice Rolf Larsen was impeached in the 1990s, and I didn’t think that they’d be likely to jump into this quagmire. Moreover, I thought there were arguably better grounds to shut down the trial. There was a plausible case that a vote to impeach in one legislative session didn’t allow for a trial in the next.

I was wrong on both counts! On Friday, December 30, the Commonwealth Court held that the articles of impeachment didn’t count as “misconduct” and that impeachments could continue from one legislative session to another because impeachment is “judicial in nature" and, thus, is not affected by the adjournment of the General Assembly or the two-year span of each General Assembly iteration’s legislative authority.” The order that was issued was brief, and a full opinion will follow soon—so we’ll have to wait a bit longer to dig into the court’s rationale.

But this is also really interesting right now—and speaks to really big issues in our country about democracy, authority to govern, and separation of powers. So I wanted to take a moment to map out what’s going on and what this says about the use of impeachment.

I want to begin with what may seem like one of the most surprising parts of the opinion: the Commonwealth Court’s statement that impeachment proceedings are “judicial in nature.” The court cites a few cases for that proposition, but the most recent one, Ferguson v. Maddox, is from nearly a century ago, when impeached former Governor James E. “Pa” Ferguson attempted to run for Governor of Texas again—despite being disqualified from holding office. The Texas Supreme Court ultimately upheld the legitimacy of Ferguson’s impeachment, removal, and disqualification, ending his candidacy for the Democratic nomination for Governor. (Ferguson’s ineligibility, coincidentally, is what allowed his wife, Ma Ferguson, to run in his place and become the first female Governor of any state!)

The Ferguson court does a pretty good job of explaining why impeachment is judicial in nature. It explains that when the House considers impeachment, it

acts somewhat in the capacity of a grand jury. It investigates, hears witnesses, and determines whether or not there is sufficient ground to justify the presentment of charges, and if so, it adopts appropriate articles and prefers them before the Senate.

When the charges go to the Senate, it

sits “as a court of impeachment”, and at its conclusion renders a “judgment”. Obviously, a body authorized to sit as a “court” to “try” charges preferred before it, that is to hear the evidence and declare the law and to render “judgment”, possesses judicial power, and in its exercise acts as a court.

Not only is the process judicial in nature, but in a number of states, the state constitution actually describes the state senates as a “court of impeachment”—and some even list the “court of impeachment” in their judicial article.

Beyond impeachment, legislatures have a reasonable number of quasi-judicial powers. Almost all state legislatures—as well as Congress—have the power to “judge” the elections, returns, and qualifications of their members. In light of Congressman-elect George Santos’s repeated fabrications (and potential crimes), some members of Congress have called for him not to be seated, relying on this power. (This isn’t the point of this essay, but that would be unconstitutional under the Supreme Court’s opinion in Powell v. McCormack.) And in New York, the fact that Republican Assemblyman-elect Lester Chang apparently doesn’t live in his district might result in the State Assembly refusing to seat him. While a legislature refusing to seat one of its members doesn’t happen very often, when it does, courts are extremely reluctant to second-guess the legislature, and use a lot of language that treats the legislature’s determination as a quasi-judicial adjudication.

But in recent decades, courts have been extremely reluctant to explicitly characterize any legislative power—but especially impeachment—as “judicial.” When Arizona Governor Evan Mecham was impeached and removed from office in 1988, he contested the impeachment before the Arizona Supreme Court. In Mecham v. Gordon, the court went out of its way to say that, despite its deference to the legislature, “Removals from office are not acts within the judicial power. . . . Trial in the Senate is a uniquely legislative and political function. It is not judicial.”

Perhaps acknowledging that state constitutions vest legislatures with a thin slice of judicial power is uncomfortable. For formalists, I think it can challenge how they characterize the allocation of power among the three branches—or at the very least, it makes the lines much blurrier. Regardless, however, the Commonwealth Court here is probably right as a practical matter. Impeachment is so, so fundamentally judicial in nature that pretending that it isn’t is just a fiction.

Note, though, that the determination that impeachment is a judicial proceeding actually goes against Krasner’s case. His argument was that the adjournment of the legislature precluded the next legislature from hearing the case. If, however, impeachment is a judicial proceeding, then it—apparently, anyway—transcends the sessions themselves.

The reason that the Commonwealth Court actually relied on to stop the proceedings is that the misconduct alleged by the articles of impeachment isn’t “misconduct” under the state constitution.

This is . . . a surprising conclusion to come to. In Larsen v. Senate of Pennsylvania, impeached Justice Rolf Larsen also argued that the articles of impeachment didn’t constitute “misconduct.” The court rejected his invitation to specifically define “misconduct,” noting that even if they accepted his definition, his alleged acts “involve[d] breaches” of conduct.

Pennsylvania isn’t alone in declining to define “misconduct.” A great deal of state constitutions provide that “misconduct” or “misdemeanors” constitute grounds for impeachment—and almost all state supreme courts have very deliberately not gotten involved in defining what those words mean.

There is one gigantic exception to that general statement, and it’s one that is highly relevant to Krasner’s case. In 2018, the West Virginia legislature effectively performed a coup on the state Supreme Court of Appeals, voting to impeach all five justices for alleged misspending. None of the justices was removed: three of them resigned from office before likely removals, one of them was acquitted by the State Senate, and one of them, Justice Margaret Workman, successfully got an injunction from the Court that barred her removal.

The charges themselves were a bit difficult to follow—they included fourteen articles total, alleging a host of violations of state law and the Code of Judicial Conduct. The Court ultimately knocked out all of the articles on the grounds that they were improperly adopted, by failing to “contain[] a statement that her alleged wrongful conduct amounted to maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor[.]”

However, the Court also veered into the substantive violations alleged by three of the articles. Two of them alleged that Justice Workman violated state laws relating to the payment of senior judges, but the Court concluded that she complied with the Court’s own administrative rules—and that its rules prevailed over state law, preventing the legislature from impeaching her. The third alleged a violation of two canons of the Code of Judicial Conduct. But here, the Court concluded that it “has exclusive constitutional jurisdiction over conduct alleged to be in violation of the Code of Judicial Conduct.”

Or, the easier explanation: the state supreme court has exclusive power to punish judges for breaches of the judicial code. Accordingly, if the legislature believes that a judge has violated the code, the recourse is through the courts, not through the impeachment process.

Now turn to the Pennsylvania Commonwealth Court. Its explanation of why the charges against Krasner aren’t “misconduct” is that the articles of impeachment “unconstitutionally intrude upon the Supreme Court’s exclusive authority to govern the conduct of all attorneys in this Commonwealth, including the District Attorney.”

Or, put another way: the state supreme court has exclusive power to punish attorneys for breaches of the professional rules. Accordingly, if the legislature believes that an attorney has violated the rules—even if that attorney is a public officer other eligible to be impeached—the recourse is through the courts, not through the impeachment process.

It’s tempting to read the Pennsylvania and West Virginia decisions together, and to walk away with the conclusion that courts are more willing to get involved in impeachment proceedings. Maybe that’s true! Impeachments themselves are relatively rare, and there are comparatively few court cases that delve into the legal issues of impeachment. As a result, it’s frequently difficult to know if the approaches taken by different courts at different times represent the typical rule—or if the cases are coming from an unrepresentative sample of courts.

But I think that the better option here is to read these two opinions as representing a narrow exception to the general rule that courts won’t intervene in impeachments. Where, as here, the alleged violations intrude on the judiciary’s supervisory power—over judges or attorneys—courts may be more inclined to intervene. It’s difficult to see a clear application of this exception in impeachment contexts other than of judges or district attorneys, but it’s certainly possible.

In any event, this will not be the final word on the matter. Once the Commonwealth Court’s full opinion has been released, there will be more to think about. And it is likely that the legislature will appeal the Court’s ruling to the state Supreme Court, which could come to a totally different conclusion. But in any event, as the spectre of impeachment haunts our divided governments, it’s worth considering that courts may now be inclined to take a different—and more active—approach to how officials are removed from office.