Tuesday, March 16, 2010

The Attorney General and Impeachment

By Marc Korman.

Shortly after Attorney General Doug Gansler issued an opinion regarding recognition of out of state gay marriages, Anne Arundel County Republican Delegate Don Dwyer issued a press release entitled:


While condemning the Attorney General’s legal opinion, Delegate Dwyer seems to have made a few mistakes about the law himself.

Delegate Dwyer is confused about the law in two respects: impeachment and Attorney General opinions.


Delegate Dwyer has expressed an interest in introducing articles of impeachment against the Attorney General. But even a cursory review of Article V of the Maryland Constitution reveals that the General Assembly cannot remove an Attorney General. Article V, Section 1 of the Constitution specifically says that the Attorney General is subject to removal “for incompetency, willful neglect of duty or misdemeanor in office, on conviction in a court of law.” The conviction in a court of law is the central element there, meaning the legislature is not the major actor.

Article III, Section 26 of the Constitution does reserve the sole power of impeachment to the House of Delegates and it is not clear to authorities if Attorneys General fall under the provision. The other statewide elected officials, the Governor and Comptroller, have specific impeachment and removal provisions about them in the Constitution that reference the General Assembly. The Attorney General does not.

Assuming that the Attorney General can be impeached under the General Assembly’s impeachment power, they cannot be removed by the legislature based on Article V. So perhaps Delegate Dwyer can impeach the Attorney General, but it would be meaningless as the sole power to remove him belongs to a court.

But do not take my word for it. The Attorney General’s office issued a letter on the issue, primarily based from my own source, Friedman’s The Maryland State Constitution: A Reference Guide.

Of course, even assuming the General Assembly can impeach the Attorney General it is readily apparent that Delegate Dwyer cannot do so himself. So the title of his press release is a little bit self-centered.


But besides coming to a different legal conclusion than Delegate Dwyer, who apparently has not read the Maryland Constitution, what would Delegate Dwyer be impeaching the Attorney General for?

As far as I can tell, Delegate Dwyer wants to remove the Attorney General for following his Constitutional duty. Article V, Section 3(a)(4) of the Maryland Constitution specifically says the Attorney General shall “issue his opinion in writing whenever required by the General Assembly.” That has been interpreted as authorizing the Attorney General to answer specific inquiries by legislators. Those opinions have proven invaluable in allowing the government to operate without waiting for court decisions, particularly since courts do not issue advisory rulings and must wait for actual suits or prosecutions before issuing opinions on constitutional questions.

Why is Delegate Dwyer so upset with the Attorney General for fulfilling his constitutional obligations? Simply because he disagrees with the result the Attorney General reached, not because Gansler did anything wrong. Voters do not look kindly upon that type of abuse of the impeachment process, as Republicans should remember from their ridiculed effort to impeach Bill Clinton, who left office with higher approval ratings than Ronald Reagan.

The Attorney General issued a well reasoned, thorough opinion. But it is only an opinion and not the law of the land. For the record, I believe the opinion is spot on and hope to see it followed. But if Delegate Dwyer believes Gansler is wrong, the proper response is not impeachment. The two proper responses are to seek a change in the law, which he has failed to do because the General Assembly does not support him, or challenge the opinion in court once the state begins to rely on it. How action in the legislature and the courts unfolds will be the real test of whether the Attorney General’s legal opinion was correct, not rhetoric-filled, legally questionable cries for impeachment.