Constitutional conundrum

In the aftermath of State Controller Kathy Augustine’s impeachment, it is apparent that her Senate trial will go down as one of the most peculiar impeachment trials in history.

Scholars have raised serious questions about whether the procedure used was legal—and even about whether Augustine was actually removed from office without the senators knowing what they were doing.

Three items in the procedure have raised questions:

• How could Augustine be convicted on an impeachment article and not be removed from office?

• How could the senators, who serve as jurors, select the prosecutor?

• How could the Senate censure Augustine when the Nevada Constitution forbids it?

Former UNR political scientist Don Driggs, author of The Nevada Constitution/Origin and Growth and one of the leading authorities on the state constitution, said he had heard Augustine was convicted on an impeachment count and therefore assumed she had been removed from office. “I thought she had been removed since she had been convicted.”

When he heard that Augustine was still controller, Driggs was puzzled, since conviction and removal are the same thing under impeachment practices dating back centuries. The sentence is contained in the conviction, and the Nevada Constitution allows only one additional sanction besides removal—barring the defendant from holding office in the future. But the Nevada Senate devised a procedure of splitting the procedure in two—conviction, then sentencing. And it imposed a penalty—censure—that is not allowed by the Constitution.

This procedure of separating conviction from removal is so novel that leading studies of impeachment, such as Impeachment by Raoul Berger (Harvard University Press, 1973), don’t even discuss it. Nevada Assembly Judiciary Committee chairman Bernie Anderson says that by definition conviction is removal.

“I don’t understand how they could not remove her from office if they voted for the article, if they had the two-thirds vote. I didn’t think they had any other choices than removal from office. … Since we have impeached her, the Assembly side has impeached her, if they [the senators] find her guilty, then the penalty is dictated by the Constitution.”

Anderson said strange things started happening to the impeachment process as soon as it left the Assembly, which impeached Augustine on Nov. 11. For one thing, the Assembly didn’t provide the prosecutor.

In an impeachment trial, the impeaching body—in this case, the Assembly—normally prosecutes the case or selects the prosecutors. This year when the Oklahoma House of Representatives impeached the state insurance commissioner, members of the House, aided by legal consultants, became the prosecutors, called managers. In the Clinton impeachment in 1998, members of the U.S. House of Representatives were the prosecution managers. But although Assembly Judiciary Vice Chairwoman Barbara Buckley could have served as manager in the Augustine case, Anderson said the Senate resisted.

“The decision apparently was the fact that the Senate wished to bring forth their own prosecutor,” he said. Senate Judiciary Chairman Mark Amodei was not available to comment on the procedure.

That put the jurors in the case in the role of deciding who would prosecute it. The senators chose a deputy Washoe county district attorney, Dan Greco, a choice that won praise from Augustine’s own lawyers. Assembly Speaker Richard Perkins couldn’t be reached for comment on why the Assembly surrendered its prerogative in the trial.

Once the senators convicted Augustine and then decided not to remove her from office, they voted to censure her. However, article 7 of the Nevada Constitution says that, in an impeachment, “judgment in such case shall not extend further than removal from Office and disqualification to hold any Office …” Legislative staff chief Lorne Malkiewich says a determination was made to treat the word “further” as meaning degree of severity.

“We have interpreted that to mean that the judgment can be less than this [removal and a ban on office holding], but not greater.”

However, in context, it is clear that the 1864 framers of the Nevada Constitution used the term to mean “additional.” That is how the term is used throughout the constitution: “[N]o further recall petition shall be filed against the same officer during the term for which he was elected,” for instance.

In their principal discussion of the impeachment power on July 21, 1864, the delegates to the Nevada Constitutional Convention did not discuss a procedure for sentencing that was separate from conviction. And while they didn’t directly address the issue, one of the underlying premises of the debate seems to have been that conviction and removal were the same thing.

During a discussion of ways of removing officers without the stigma of impeachment—as when a judge is disabled, for instance—it was taken for granted in the context of the delegates’ discussion that conviction under an impeachment article meant automatic removal from office. At no time do the delegates make reference to any distinction between conviction and sentencing.

Malkiewich says the procedures for Augustine’s trial were authorized by state statutes and Senate rules:

“The procedure is in statute and in the rules adopted by the Senate, which we would contend control. N.R.S. [Nevada Revised Statute] 283.240 provides that after conviction the Senate shall pronounce judgment in the form of a resolution. NRS 283.250 allows the Senate to suspend as well as removing from office. The simple answer is that the Senate is the judge of the rules of its proceedings (which is why we say that the rules control), and the rules adopted for the impeachment included a separate proceeding for determining ‘whether any sanction shall be imposed.'”

However, Senate rules are normally used for minor matters such as floor procedures, and statutes are not capable of overriding constitutional language.

UNR political scientist Richard Siegel says he thinks that what was really operating in the Senate was a willingness to override law for the sake of convenience.

“Politicians are masters of the compromise, to punish and not punish, to say you’ve been punished enough by ‘A,’ to take care of their own. They know that they probably gave her a political death sentence, but that’s enough. They know that they are targets of criminal investigations themselves more than the rest of us, and that surely affects them. The legislators don’t necessarily feel themselves bound by the Constitution. They routinely pass laws they know are going to be overturned. They act independent of the Constitution. They know that it’s unconstitutional; they don’t care.”

Siegel also says he thinks the Augustine acquittal, if that’s what it was, is a reflection of a Nevada brand of "the politics of redemption." He says people like Oscar Goodman, Joe Conforte and Steve Wynn have been able to reinvent themselves in Nevada, and Augustine may be doing the same thing.