Please call or e-mail to request a Saint Paul media availability in the Capitol press area on Monday afternoon (this will be 3:00 to 3:45 if requested) 

An announcement news release will go out early Monday morning

Carney will be available Monday morning from 8:00 to 10:00 AM to answer questions by phone or e-mail

Contact: Bob Carney Jr. -- (612)-824-4479 (home and business) -- bob@republicancontract.com

For immediate release                                                                              

Minneapolis, MN, January 15, 2010 -- Minneapolis Moderate Progressive Republican candidate for Governor Bob Carney Jr. will announce his decision regarding an appeal of Judge Kathleen Gearin's recent dismissal of his lawsuit challenging Governor Pawlenty's unallotment of the Political Contribution Refund program on Monday morning. 

A copy of this news release is being sent to most members of the Minnesota House of Representatives and the Minnesota Senate.  "Legislators and the public are invited and welcome to call me at home this weekend if they are interested in discussing unallotment and the Political Contribution Refund program," Carney said.

On Wednesday, January 13th, Carney's op-ed Commentary article was published in the printed Star Tribune, examining the unallotment and budget "puzzle" Minnesotans have been plowed in with this winter.  The Legislature has the power to impeach, and this piece may be part of that puzzle by necessity if the Governor and the Legislature can't come to an agreement.

Today, Carney posted a 3,000 word background article on his website, www.republicancontract.com, beginning the examination of Minnesota impeachment provisions.  The article is below this news release.  Although not an attorney, Carney has taught business law at the post secondary level, and has written two books on Constitutional law, one devoted entirely to impeachment, the second devoting a chapter to impeachment questions. 

Background -- Carney's most recent book -- October Surmise: Might our Constitution bar Bar? -- examines whether President Obama is constitutionally eligible to serve as president assuming that he was born in Kenya.  "If president Obama was asked this question and replied: 'I don't recall', I think most people would believe him," Carney said.  "This book should be of interest to both so-called 'Birthers' and their nemeses, because it resolves the issue without having to determine where our president was born. I went into this book project with an open mind, and was frankly surprised to find that from a Constitutional point of view it isn't even a close question -- Obama is clearly Constitutionally eligible to serve his current term as president even if he was born in Kenya," Carney said.  "However, the fact he is currently the president has nothing to do with whether he is determined to be eligible to serve for a new term.  The only legal difference between the 2008 and the 2012 election cycle is that the question of his eligibility has been raised earlier and more widely in the 2012 cycle, " Carney noted.   A "book sampler" presenting the nub of Carney's findings is online at www.republicancontract.com,  The book is available from amazon.com.

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Impeachment in Minnesota -- background

by: Bob Carney Jr.

1/15/10

On January 13th, the Star Tribune published on their op-ed page my commentary article on unallotment and our budget puzzle, including an examination of how the "impeachment piece" might be necessary to complete it (hopefully we can avoid that). Here's a link:

http://www.startribune.com/opinion/commentary/81278812.html?elr=KArksc8P:Pc:UUUUr

Let's hope that the Governor and the Legislature can work together to find a solution. That could be the one I outlined in the op-ed piece, or something different. But if the Governor is unwilling to "undo" the unallotments that launched our biennium, the Legislature has both the power and the duty to defend itself against encroachment and usurpation. The ultimate power of the Legislature is impeachment. It is important to start studying this option now, to be prepared if an impasse occurs. "Speak softly and carry a big stick...".

Regarding impeachment, I am not an attorney, but I'm also not shooting from the hip on this subject. My view could possibly be wrong, but it is the result of extensive research. If you'll accept this assurance (at least provisionally), please skip to the heading "ARGUMENT" -- otherwise, here's some brief evidence of credence:

In 1999-2000 I wrote a book: The Nixon-Clinton Impeachment: a new Constitutional Theory. I exchanged e-mails regarding this theory with Professor Ronald Rotunda, a nationally recognized author of both textbooks and a multi-volume set on Constitutional law. Professor Rotunda was Ken Starr's Constitutional consultant at the Office of Independent Council ("OIC") during the Clinton impeachment. I forwarded a copy of my book to Professor Rotunda, who had just left his position at the OIC, He wrote back, and offered to forward my book to his successor at OIC. I proceeded to send a copy directly to them, with a cover letter.

Regarding Professor Rotunda's concern, here's the relevant language from the Federal Constitution:

"Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Notice: this does NOT say "...Conviction by the Senate..." From my research I found the original draft language DID include the phrase: "...Conviction by the Senate...". James Madison, our fourth President, known as the "Father of the Constitution" made a motion to delete that phrase. Here's the obvious implication: in striking the phrase "by the Senate", the intent was (and is) to open a second trial venue (Judicial) that can cause removal. There are many further twists and plot turns.... let's leave all those for now. But you're welcome to read my book: it's online at www.bobcarneyjournal.com.

To bring this sub-plot to closure: one of the main questions raised in my theory, and Professor Rotunda's apparent concern, is this:

If a President is a) impeached by the House (Clinton had been), and b) convicted in a Court -- not in a Senate impeachment trial -- would he still be President?

After all, the Constitutional provisions requiring removal appear to be met: "...impeachment for, and conviction of...". If perjury by a sitting president is reasonably understood to be within the category "high crime or Misdemeanors" -- case closed. Or so it would seem.

The OIC was concerned enough about this to announce publicly, shortly after I sent them my book, that under no circumstances would President Clinton be indicted before he left office.

I have continued to study and write about impeachment since then.

ARGUMENT

Let's turn now to our present situation in Minnesota. Let's leave aside for the present a consideration of the consequence that Lt. Governor Molnau would immediately become the acting Governor if the House voted to impeach.

Here is the relevant provision from our State Constitution regarding impeachment:

"Sec. 2. OFFICERS SUBJECT TO IMPEACHMENT; GROUNDS; JUDGMENT. The governor, secretary of state, auditor, attorney general and the judges of the supreme court, court of appeals and district courts may be impeached for corrupt conduct in office or for crimes and misdemeanors; but judgment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust or profit in this state. The party convicted shall also be subject to indictment, trial, judgment and punishment according to law."

As we will see shortly, the phrase "corrupt conduct in office" in our Minnesota Constitution is properly understood in the context of the phrase "high Crimes and Misdemeanors" in the Federal Constitution. The best discussion I have found of the difference between "high Crimes and Misdemeanors" and "crimes and misdemeanors" is in Impeachment: The Constitutional Problems, by Professor Raoul Berger.

Professor Berger references Blackstone, whose Commentaries on the Laws of England was widely known and well respected by the Founders. Professor Berger wrote: "The view that impeachment must rest upon a violation of existing criminal law has the imprimatur of Blackstone; an impeachment, he stated, 'is a prosecution of the already known and established law.' His successor as Vinerian lecturer, Richard Wooddeson, said that impeachments 'are not framed to alter the law, but to carry it into more effectual execution'; they 'are founded and proceed under the law in being.'" We should note here that the phrase "already known and established law" does not refer to statutory law. In England, criminal law was rooted in the Common Law -- a body of precedents distinguished from laws passed by Parliament. Criminal violations were classified in England, but a criminal indictment did not have to cite a violation of a statute -- a requirement in the United States.

A little before the above-cited passage, Professor Berger writes: "To understand what the Framers had in mind we must begin with English law, for nowhere did they more evidently take off from that law than in drafting the impeachment provisions. The very terms 'impeachment... treason, bribery, or other high crimes and misdemeanors' were lifted bodily from English law."

Professor Berger proceeds to critique and refute Blackstone's characterization of impeachment, under the heading: "IMPEACHMENT AND INDICTABLE CRIMES":

"Because 'crimes and misdemeanors' are familiar terms of criminal law, it is tempting to conclude that 'high crimes and misdemeanors' are simply ordinary crimes and misdemeanors raised to the nth degree. Apparently this is what Christian had in mind when, in a note to Blackstone, he explained that when used in impeachments the words 'high crimes... have no definite signification, but are used merely to give greater solemnity to the charge.' In this he went astray. The phrase 'high crimes and misdemeanors' is first met not in an ordinary criminal proceeding but in an impeachment, that of the Earl of Suffolk in 1386. Impeachment itself was conceived because the objects of impeachment, for one reason or another, were beyond the reach of ordinary criminal redress. It was 'essentially a political weapon,' an outgrowth of the fact that from an early date the King and his Council were the 'court for great men and great causes.' Before the Commons assumed the role of accuser late in the reign of Edward III (about 1376) of those charged with 'treason or other high crimes and misdemeanors' against the State, private persons had been wont to turn to the Crown to institute proceedings before the High Court of Parliament when they were aggrieved by officers of the Crown in 'high trust and power, and against whom they had no other redress than by application to Parliament.' Such officers were persons of the 'highest rank and favor with the Crown' or they were 'in judicial or executive offices, whose elevated station placed them above the reach of complaint from private individuals.' Before long the Commons became the prosecutor of the 'highest and most powerful offenders against the State.' And in 1386 the Peers categorically asserted exclusive jurisdiction to try a peer for a high crime against the realm in the landmark proceeding against the Earl of Suffolk, and this not by the common law but by the course of Parliament. The House of Lords was reminded of this history by Serjeant Pengelly during the impeachment of Lord Chancellor Macclesfield in 1725:"

"'your lordships are now exercising a power of judicature reserved in the original frame of the English constitution for the punishment of offenses of a public nature, which may affect the nation; as well in instances where the inferior courts have no power to punish the crimes committed by ordinary rules of justice; as in cases within the jurisdiction of the courts of Westminster-hall, where the person offending is by his degree, raised above the apprehension of danger, from a prosecution carried on in the usual course of justice; and whose exalted station requires the united accusation of all the Commons.'"

In short: it is the phrase "high crimes and misdemeanors", not the phrase "crimes and misdemeanors", that is most properly associated with a "public wrong", or a "wrong against the whole of a community...". Professor Berger argues the phrase "high crimes and misdemeanors" is a technical legal phrase, firmly rooted in English law, distinct from "crimes and misdemeanors", and well known and understood by the Framers of the Constitution.

In Impeachment in America, 1635-1805, Hoffer and Hull take issue with Professor Berger regarding the extent to which Americans knew of and understood the English precedents. They note that the "decriminalization of impeachment" is a kind of American invention (English impeachment convictions could require punishment up to and including death.) They make two further claims: first, that for this reasons English law and history cannot be cited as precedent, and second that the Framers' knowledge and understanding of English law, precedent and history was in many ways doubtful and limited. Specifically, Hoffer and Hull challenge the idea that technical meanings of the legal terms -- the building blocks used by the Founders to erect a different impeachment structure -- can or should be relied on. Hoffer and Hull offer a specific critique of Professor Berger's book in an appendix.

There is a basis for argument and debate here -- generally and on balance I find Professor Berger to be more persuasive across the board. However, Impeachment in America is well worth reading and considering.

Returning to the nub of our Minnesota Constitution impeachment provisions (the full section is above):

"...may be impeached for corrupt conduct in office or for crimes and misdemeanors;..."

In this phrase the word "or" works as a fulcrum. On one side of the "or" we have non-criminal (our uniquely American innovation) "corrupt conduct in office", conduct which need not violate any specific statute. On the other side of the "or" we have "crimes and misdemeanors", which I think everyone would agree do require the allegation of a specific statutory violation -- but arguably with different standards of proof for impeachment and a criminal trial.

Let's now turn our attention to the phrase "corrupt conduct in office", and again to Professor Berger. Under the heading "THE SCOPE OF 'HIGH CRIMES AND MISDEMEANORS" Professor Berger first briefly summarizes the grounds for about a dozen English impeachments, and then writes (emphasis is mine):

"The foregoing examples by no means exhaust the list which could be adduced to illustrate that English impeachments did proceed for misconduct that was not 'criminal' in the sense of the general criminal law."

"These charges fulfill an even more important purpose -- they serve, broadly speaking, to delineate the outlines of 'high crimes and misdemeanors.' For they are reducible to intelligible categories: misapplication of funds (Earl of Suffolk, Seymour), abuse of official power, (Duke of Suffolk, Buckingham, Berkley, Yelverton, Mordaunt, Scroggs), neglect of duty (Buckingham, Pett), encroachment on or contempts of Parliament's prerogatives (Gurney, North, the Ship-Money Tax opinions). Then there are a group of charges which can be gathered under the rubric 'corruption,' as when Lord Treasurer Middlesex was charged with 'corruption, shadowed under pretext of a New Year's-Gift,' and with 'using the power of his place, and countenance of the king's to wrest [from certain persons] a lease and estate of great value.' So too, Middlesex, and much earlier the Earl of Suffolk, were charged with obtaining property from the King for less than its value. Buckingham, Danby, the Earl of Arlington, Earl of Orford, Lord Somers,and Lord Halifax were charged with procuring large gifts from the King to themselves. Buckingham, Sir William Penn, Seymour, and Orford were charged with conversion of public property. Lord Chancellor Macclesfield was charged with the sale of public offices. Lord Halifax was accused of 'opening a way to all manner of corrupt practices in the future management of the revenues' by appointing his brother to an office which had been designed as a check on his own, the profits to be held in trust for Halifax There were charges of betrayal of trust, as when Buckingham put valuable ships within the grasp of the French, and when Orford weakened the navy while invasion threatened. And there were charges against Orford, Somers, Halifax, Viscount Bolingbroke, the Earl of Strafford, and the Earl of Oxford of giving pernicious advice to the crown."

"Broadly speaking, these categories may be taken to outline the boundaries of the phrase 'high crimes and misdemeanors' at the time the Constitution was adopted. The importance of these categories for American law derives from two facts: (1) when the Framers employed language having a common law meaning it was expected that those terms would be given their common law content; (2) they considered that the phrase had a 'limited', 'technical meaning.'"

As we see from the above, "corruption", or "corrupt conduct in office" was by far the primary thread running through the understanding of the phrase "high crimes and misdemeanors". I think it is reasonable to think that our Minnesota Constitution's narrowing of non-criminal grounds to "corrupt conduct in office" was intended to remove some non-criminal grounds -- "neglect of duty" might be one example -- that are understood to be included within the broader phrase: "high crimes and misdemeanors". And of course, the people who wrote the Minnesota Constitution were familiar with the terms used in the Federal Constitution. There are many instances where our Minnesota Constitution parallels the Federal Constitution by word and phrase. The decision to substitute "corrupt conduct in office" for "high crimes and misdemeanors" in the Minnesota appears to be both deliberate and limiting.

One further idea should be considered before moving to some preliminary conclusions. In may ways, the judicial function of Parliament was as important or more important than its legislative powers. We tend to think of laws as "made", and of a "rule of law" as referring to all current statutes (and Constitutions, of course); but the idea of a society's law as something with an external, objective reality -- something to be discovered in the same sense that laws of physics or chemistry are "discovered", was a foundation of the world view of the Founders, and of those who rendered the English precedents. For our present purposes, the fundamental point is this: people in high positions, people with a lot of power, always seem to be able to think of new ways of wrongdoing or corruption. And sometimes the wrong they do is something that has gone on previously, albeit to a greater and lesser degree. Because of this, the "course of Parliament" was recognized as a different kind of law -- a different legal system. The only way to keep up with this all-too-human tendency ("power corrupts", etc.) was, and is, to preserve the power to "discover" the law for each unique situation.

Obviously, this can be very dangerous when it is linked (as it was in England) with criminal punishment up to and including death. One aspect of American impeachment is that -- while I think the case is compelling that grounds for impeachment need not require a violation of any statute -- the result of an impeachment trial has only removal and disqualification as consequence.

In the context of our current situation in Minnesota my preliminary conclusion from this is threefold.

First, I believe the Minnesota Constitution provides for impeachment and removal on non-criminal grounds.

Second, these non-criminal grounds appear to have been deliberately restricted to a sub-set of grounds within "high Crimes and Misdemeanors."

Third, we have impeachment on non-criminal grounds as part of our Constitution because we need to guard against the danger of an over-reaching executive. The Legislature has the power to do this. The Legislature is also intended to be, and is, accountable to We the People for how they use this power. In short, the Legislature is empowered to defend against attack from the Executive -- without dragging the Supreme Court into a constitutional separation of powers fight. We face enough challenges already with regard to maintaining a non-politicized Judiciary in Minnesota -- do we need more?

At this point, I am not advocating impeaching Governor Pawlenty. But I do believe his abuse of the unallotment law is unique in the history of our State as a usurping of Legislative authority -- and that his incipient Presidential campaign -- including the "imperative" of fundraising -- is a corrupting influence on the Governor. While I am certainly willing to consider claims of criminal violations by the Governor -- crimes and misdemeanors in the ordinary sense -- our state criminal laws are not our first line of defense against misuses and abuses of the powers of Government. To reiterate, this is partly because potential abuses are so numerous that it is difficult to anticipate all of them in advance.

There is a further element to consider (briefly, after about 3,000 words) -- what is the proper role of a state Governor in our "... republican form of government..."? One of my big reason for running as a Republican candidate for Governor is to challenge all Minnesotans -- but Republicans in particular -- to reexamine and rethink what that role should be. I think the focus should be on impartial and efficient administration (certainly enough to keep anyone busy!) and on helping the Legislature -- the preeminent branch in a "...republican form of government..." -- to work in a deliberative and cooperative way. We need independent minded Legislators, and a Governor who exercises restraint.

I hope others of all parties, or of no party, will join me in studying our State's impeachment provisions, why they are there, and why we might need them.

Bob Carney Jr.

Moderate Progressive Republican candidate for Governor
Minneapolis