Yesterday, the House Republicans fell a step short of impeaching Utah’s scandal-laden Attorney General, John Swallow – instead opting to open a formal investigatory committee. The move is both unprecedented and, for the public, confusing. This quick guide should be able to walk you through the upcoming events scheduled to begin on July 3, when House Speaker Becky Lockhart will assemble the House of Representatives to formally set the process in motion.
Investigation is Not Impeachment
This is perhaps the first and most important point to take away from yesterday’s decision. The House choosing to open an investigatory committee is not the same as the formal process known as impeachment.
As you can guess by the name, the House is choosing to investigate the many and varied allegations against Swallow that involve the AG both before and after entering office.
The investigation is open-ended, meaning it could extend beyond Swallow himself and will consist of both Republicans and Democrats. Furthermore, the committee is expected to have the power to subpoena witnessness, gather evidence, and have a budget to hire legal counsel—although its official parameters won’t be set until July 3.
What the committee can’t do is bring impeachment charges directly, though the full House could choose to bring charges based on the findings of the investigation.
Impeachment is Not the Same as Removal From Office
This is a common misconception, but when an elected official is impeached, they can still hold office. For example, President Bill Clinton was formally impeached but never removed from office.
Impeachment is when formal charges are brought against an elected officer and only takes place when two-thirds of the members of the House of Representatives accuse that official of one or more counts of activities it considers to be “high crimes, misdemeanors, or malfeasance in office” – as outlined in the Utah Constitution.
The investigatory committee will likely mimic the impeachment process (Representative Spencer Cox even referred to the committee as the “pretend impeachment committee”), but formal impeachment is the only way to advance the process of removing an elected official from office.
What most people think of when the term “impeachment” is used is actually the third distinction:
Removal From Office Can Only Be Done By the Senate
Once (or if) the House decides there is one or more charges that have reached a level so bad that removal of office is necessary, the House will bring the charges to the Senate. The Senate, in turn, will act as both judge and jury in the case. It is expected (though not required) that the House would use outside legal counsel to act as the prosecution. In turn, the accused will be allowed to defend themselves before the Senate.
The Senate, after hearing all the evidence, will then vote on whether the individual should be removed from office. If two-thirds of the senators believe the official is guilty, the accused will be removed from office and barred from future public service in the state.
Removal From Office Does Not Mean a Crime Has Been Committed
This is an important distinction to make, as it is often assumed that impeachment and the subsequent removal of office are in-and-of-themselves a crime. This is not true. Similarly, many people assume that one can only be impeached and removed from office if a crime has been committed. Again, this is not true.
Consider for example when a person is fired from a job. You can be removed for many reasons, sometimes for terrible things you did as an employee, but those activities may not necessarily be considered crimes. If you give away company secrets, perform poorly, or offend clients, you could be asked to leave…but no crime was committed.
Likewise, a person can be removed from office even if no formal crime occurred (this is the “malfeasance in office” part). “Malfeasance” is defined as “wrongdoing or misconduct” by a public official and could be considered as conduct unbecoming of the office.
Of course, all of this isn’t to say that a person couldn’t be removed from office because a crime has been committed, nor does it mean that a person couldn’t be charged with a crime after the fact. There is no risk of double jeopardy because the impeachment process is a political – not a legal – process.