Commentary

Why the courts should stop Philly DA Larry Krasner’s impeachment trial | Bruce Ledewitz

The effort to remove Krasner is a recall masquerading as an impeachment. And Pa. doesn’t have recall

December 7, 2022 6:30 am
Philadelphia District Attorney Larry Krasner takes questions from reporters after a press conference in Harrisburg on Friday, 10/21/22. (Capital-Star photo by Marley Parish)

Philadelphia District Attorney Larry Krasner takes questions from reporters after a press conference in Harrisburg on Friday, 10/21/22. (Capital-Star photo by Marley Parish)

There is a reason why the Associated Press described the articles of impeachment against Philadelphia District Attorney Larry Krasner as alleging that the “Mr. Krasner’s policies and practices ‘have led to catastrophic consequences’ for Philadelphians.”

The heart of the first Article of Impeachment is that Krasner’s “lack of proper leadership serves as a direct and proximate cause of the crisis currently facing the City of Philadelphia.”

And the very first sentence of the “Case Against Krasner” published by the House Republican Caucus after the impeachment vote reiterates this theme: “Violence in Philadelphia has surged since progressive Philadelphia District Attorney Larry Krasner has taken office.”

These allegations, assuming their complete accuracy and further assuming that Krasner’s policies are in fact the reason for a crime wave in Philadelphia, demonstrate categorically why the impeachment represents an unconstitutional effort to remove Krasner from office that must be stopped.

Simply put, Pennsylvania does not have recall.

Other states, like California do have recall. In 2021, for example, California held a recall election for Gov. Gavin Newsom.  

In states that have recall, when public officials pursue policies that turn out to have catastrophic consequences, or when incompetence and inaction do so, voters have immediate recourse. They can vote to remove an elected official.

In contrast, in states that do not have recall, voters have to wait until the next election to reject that official and those policies.

The effort to remove Krasner is a recall masquerading as an impeachment.

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There is a reason why Pennsylvania has not embraced recall. That mechanism has often led to expensive and divisive recall elections in which incumbents are returned to office anyway. They amount to replays of the election themes under which the official was elected in the first place. 

Far better to give policies a chance to work and then fight out the results in the next election.

At least then voters can relax for a few years and not have to go to the polls all the time.

This is why Republicans in the General Assembly have never shown the slightest interest in a constitutional amendment creating recall in Pennsylvania.

What Pennsylvania has is either removal from office upon conviction of certain crimes or removal by a two-thirds vote in the Senate for “misbehavior in office.”

The Articles of Impeachment against Krasner carefully avoid defining what “misbehavior in office” means. The Articles reject a traditional definition, that misbehavior in office means “the breach of a positive statutory duty or the performance of a discretionary act with an improper or corrupt motive”—presumably because that standard suggests that the Krasner impeachment is improper—but fail to give any other definition, instead insisting on an undefined “broad construction” of the term.

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This is dangerous in and of itself since it would mean that a House majority could lawfully impeach any civil officer at any time for any reason. But it is particularly dangerous when a majority formed wholly by one political party impeaches a properly elected official of the other party for pursuing policies that the first party opposes on political and ideological grounds.

That is a matter for electoral politics, not impeachment.

I don’t have an alternative definition, assuming the traditional one is not the standard. But I do know what “misbehavior in office” does not mean.

It does not mean pursuing lawful policies, like no-bail release and reduced sentences for certain crimes, that many people now feel have been a mistake. Nor does misbehavior in office mean that a prosecutor has failed to prevent a crime wave. 

Nor does it mean the kinds of wrongs — violations of the constitutional rights of defendants, breaches of prosecutorial ethics and failures of candor with the courts — that unfortunately occur in every office of prosecution everywhere in the country every day. They have occurred in Philadelphia also, of course, but the House would next have to impeach all the Republican DA’s in Pennsylvania as well.

In short, misbehavior in office does not mean doing a bad job.

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Much has been made of the comparison of the Krasner impeachment with the first impeachment of former President Donald Trump. But that is not an apt comparison.

I opposed impeachment at that time as unjustified by the phone conversation at issue. But at least proponents of that impeachment alleged uniquely wrongful conduct—requesting that a foreign official investigate a private American citizen in subordination of American national interests and in furtherance of the partisan political interests of the president.

There is nothing like that in Krasner’s case.

The proper comparison for the Krasner impeachment is the widespread outrage over Trump’s family immigration policies, which separated young children from their parents. But that failed policy did not lead to impeachment.

On Dec. 2, Krasner filed suit in Commonwealth Court to prevent a Senate trial. 

Ordinarily, we would not expect courts to intervene to prevent the trial of an impeachment even if the Articles of Impeachment are legally insufficient. Impeachment and removal are inherently political, after all, and the requirement of a two-thirds vote to remove can usually be expected to prevent legislative abuse.

But the Krasner impeachment represents a unique context justifying judicial intervention. It would set a terrible precedent to allow the House of Representatives to force a Senate impeachment trial every time a partisan majority feels an elected official of the other party has done a bad job.

Furthermore, it is not practical to expect an elected official to answer such an impeachment.

It would end Krasner’s career if he responded: “Even if I have been a terrible prosecutor, and even if my policies have led to an eruption of crime in Philadelphia, that doesn’t matter. None of that is enough to remove me.”

If he said that, even though he would be correct, he might as well resign.

Krasner cannot say that, but a judge can and must. Otherwise, Pennsylvania will stumble into the worst of all worlds—effectively instituting recall but without involving the voters.

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.

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