State elected officials and lawmakers have made it clear they would like indicted state Auditor Troy Kelley to step down. But impeaching Kelley to remove him from office might not be easy.
OLYMPIA — Neither world war had been fought the last time Washington senators gathered for an impeachment trial — a 1909 event that took two weeks in a summer special session.
But if state elected officials and lawmakers want indicted state Auditor Troy Kelley to go, that’s the route they’ll likely have to take.
Kelley, a Democrat elected in 2012, hasn’t just gone away like many of those officials would have hoped. In fact, he returned last week from an unpaid, self-imposed seven-month leave of absence intended to allow him to fight federal charges alleging tax evasion and money laundering.
Whether Kelley’s surprise return will boost the prospects of impeachment depends on whom you ask. A resolution announced by four lawmakers this month calls for impeaching the auditor, saying Kelley “willfully abandoned his statewide elected office” during his leave.
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Two GOP co-sponsors of the impeachment resolution, Reps. Drew Stokesbary of Auburn and Drew MacEwan of Union, Mason County, said they believe Kelley’s return helps the case for impeachment because it shows Kelley put his personal priorities before state government.
Another co-sponsor, Rep. Chris Reykdal, D-Tumwater, said Kelley’s return isn’t likely to change minds over whether to pursue impeachment. Supporters still have the fire for it, Reykdal said, but opponents will say Kelley’s move is an indication the auditor is “really dug in.”
Reykdal said that if articles of impeachment were brought to the House floor, he believes they’d pass. If that happened, the Senate would be tasked with holding a trial.
But lawmakers, who will gather in January for a 60-day session, already have plenty to do. Legislators must work on finding a plan for the state Supreme Court’s K-12 school-funding ruling known as McCleary and are expected to address another of the court’s decisions, which ruled charter schools unconstitutional.
They’ll also debate a supplemental budget to pay for, among other things, this year’s record-setting wildfires and possibly needed social-services funding.
Given those pressures, and the complexity surrounding an impeachment trial, Sen. Jamie Pedersen, D-Seattle, said he believes not even Kelley’s return will give legislative leaders the appetite to move on impeachment.
“In a vacuum, it sounds great to say we need to be firm about Troy Kelley,” said Pedersen, ranking Democrat on the Senate Law and Justice Committee. But, he said, “we’ve got a long list of things that people want us to deal with.”
Legislative leaders are largely keeping silent on any plans regarding Kelley. In a recent statement, House Majority Leader Pat Sullivan, D-Covington, said Democratic lawmakers have “been focused on education funding, health care and the budget” and would discuss the prospect of impeachment within their caucus when they return in January.
House Speaker Frank Chopp, D-Seattle, didn’t respond to requests for comment, but a spokesman said Sullivan’s statement “basically reflected Frank’s thought as well.”
Through a spokesman, House Republican Leader Dan Kristiansen, R-Snohomish, declined a request for comment.
Jaime Smith, spokeswoman for Gov. Jay Inslee, said the issue of impeachment would have to be decided by legislators.
“We’ll have a budget to work on, and whether or not legislators think this is something they can pursue is a question for them,” Smith said.
Senate Majority Leader Mark Schoesler, R-Ritzville, said there have been no meetings between the legislative caucuses on impeachment. As for a Senate trial, “it would be complicated to add that to a short session,” Schoesler said.
Rules out re-election
Through a state Auditor’s Office spokesman, Kelley has declined to comment on the prospect of impeachment and in a statement said he “can’t possibly imagine” filing to run for re-election in 2016.
The articles of impeachment themselves could be the easy part — if they reached the House floor, they’d require a majority vote for approval.
Then the Senate would be “essentially a court” during an impeachment trial, according to Hugh Spitzer, who teaches constitutional law at the University of Washington School of Law.
There would be jury instructions, pretrial motions, the introduction of evidence and the calling of witnesses. If a two-thirds majority votes to convict, the impeached official would be removed from office and barred from running for state and local office again.
As for how a trial would work, Sen. Mike Padden, R-Spokane Valley, researched the 1909 Senate trial for impeached Insurance Commissioner John Schively, whom the House impeached on account of alleged financial misdeeds.
In that case, three House members served as prosecutors and Schively had his own attorney, according to Padden.
Schively was acquitted.
If lawmakers now had to do something similar, “it certainly would impinge on the other business of the Senate,” said Padden, chairman of the Senate Law and Justice Committee.
Padden drafted a set of rules based on the 1909 impeachment, which Pedersen calls a reasonable starting point for a potential trial. But Pedersen said some of the legal advice coming from a century ago might not be suitable for the 21st century.
For instance, the draft rules based on the old trial devote only one paragraph to the potentially complex issues of witnesses and discovery, according to Pedersen.
“It would be one thing if it were a super-uncomplicated legal question, with a very compliant and unassertive impeachee,” Pedersen said, adding, “I don’t think that that’s likely to be the case.”
He noted Kelley, who has pleaded not guilty to the federal charges, is waging a vigorous defense in federal court, and that “there’s no reason to think that he would do otherwise in an impeachment trial.”
“If you think that the Legislature has nothing else to do, then sure, why not? Let’s go ahead,” said Pedersen. But, he added, “I think it could easily take up most of the session.”
Maybe there’s time
Sen. Cyrus Habib, D-Kirkland, said he thinks time could be found for a trial. He pointed to the many weekends and some Fridays during the 2015 legislative session where the Senate floor was empty and senators were not scheduled to work.
“I think it would be manageable for us to do,” said Habib, who teaches a seminar on legislation at Seattle University School of Law.
Habib, who in May called for Kelley’s impeachment, said lawmakers should pursue articles of impeachment only if they are determined to be “legally defensible and appropriate.”
Pedersen and Schoesler also expressed concern about whether it’s appropriate to impeach Kelley before the auditor’s federal court trial, scheduled for March.
Sen. Doug Ericksen, R-Ferndale, Whatcom County, went further, announcing he wouldn’t vote to remove the state auditor until the federal charges have been decided.
“Although I did not support Mr. Kelley in his campaign for this office, I believe that in a complicated case like this he has the right to due process,” Ericksen said in prepared remarks. “The partisan legislative environment is not the place to conduct a trial of this nature.”