Northam, Fairfax Stay; What’s Next?

Now that the flow of devastating revelations about Virginia’s top government officials has seemed to slow down, the question I’m asked most often is this: what happens next?

(Apparently I can’t just say, “nobody knows,” although that’s probably the most accurate answer.)

Whether or not you believe Governor Ralph Northam’s... um, evolving story about why a photo of men in blackface and a Klan robe appeared on his med school yearbook page, Northam doesn’t appear to be going anywhere. Similarly, Lt. Governor Justin Fairfax’s response to not one, but two accusations of sexual assault is to dig in and fight. Attorney General Mark Herring’s main offense is hypocrisy – calling for Northam to step down when Herring himself had a blackface incident in his past. Virginians may be inclined to give Herring a pass, especially the Democrats among them who recognize he would be replaced by a Republican if he resigned.

[By the way, if you need a refresher about why blackface is so bad, you could start with Michael Paul Williams’ column from last week. And if you need a refresher on why we should believe sexual assault survivors when they come forward, you could check out this Kavanagh-related New York Times piece, or really the entire internet.]

I can tell you what will NOT happen – impeachment or recall.

Democratic Delegate Patrick Hope threatened to introduce articles of impeachment for Fairfax just this past weekend, before the Virginia Legislative Black Caucus forcefully told him to back down. I’ve seen a lot of dithering online about whether what Northam did is impeachable – where’s the crime? I’ve seen other comments that note that the offenses of Fairfax, even if he were guilty, were committed well before he was in office.

But as I often remind my students, the only definition of an impeachable offense... is that you are impeached for it! As with the U.S. Constitution, Virginia’s definition of what is considered grounds for impeachment is vaguely defined. What exactly constitutes “malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor?” The only people who can decide that are the members of the House of Delegates, who would have to vote for articles of impeachment, and state Senators, two-thirds of which would have to vote to convict.

Last time I checked, Republicans control both Houses of the General Assembly. Impeachment articles like Hope’s remain a political stunt until Republicans think it’s a good idea to remove Northam or Fairfax. And let’s face it – why would they? Every minute Northam and Fairfax remain in office is another blow against the Virginia Democratic Party, especially as both parties eye this fall’s elections.

I’ve also seen some online chatter about recalling the Governor. Some states have a rarely used procedure to replace elected officials through a petition and election process. (Wisconsin’s Scott Walker survived such an election in 2012; California’s Gray Davis wasn’t so lucky in 2003, famously being replaced by the Gubernator.) Virginia’s law is a little different; voters can circulate a petition to remove an official, but Circuit Court justices actually decide. But the law is clearly designed for local officials, making it super unlikely that any judge would accept the petition for a statewide official like the Governor.

So that leaves one final option for removal of Northam or Fairfax: resignation. And neither of them seem inclined to go anywhere.

Northam’s goals seem murky at best. Like OJ looking for the “real killers,” he seems to think that some forensic explanation of how he is not in his yearbook photo would make voters love him again. But he has less of a plan for overcoming his stilted moonwalking confession, his mysterious high school nickname (“Coonman”), and his bizarre performances in recent press conferences and interviews. (Splitting hairs about slaves vs. “indentured servants” is no way to lead us into racial reconciliation and healing.)

Fairfax keeps saying he wants a full investigation into the claims against him, calling for the FBI (like they are super heroes who respond to calls for distress). House Speaker Kirk Cox said he would be open to an investigation by the General Assembly instead. But this idea raises all sorts of questions, since the GA is not set up to be an investigative body. Who would run the investigation, and would it come through the GA’s committee structure? How would investigators be chosen? What standards would they use to determine if Fairfax was guilty? What budget would even pay for it? And how would the investigation’s findings be reported and acted on by a part-time legislature that wouldn’t even be in session? Legislators would essentially be making this up as they went along.

Ultimately, the fulcrum for how this all plays out is one of the weakest institutions in the state: the Virginia Democratic Party. I’ve written numerous times before that the VA Dems are, well, let’s just say not very well organized. It’s hard to blame the party for not knowing exactly what to do with this unprecedented set of scandals, but a more organized party might find a way through. Instead, they are doing serious damage to the Democratic “brand” by allowing their wounded leaders to remain in office. After two blue wave elections in the past two years, the Party’s fortunes were rising, with their eventual control of the General Assembly seeming like an inevitability. Now, though, all their momentum is shattered.

Still, a lot could happen between now and November. Fairfax could find himself facing a criminal investigation in Massachusetts, the site of his encounter with his initial accuser. That proceeding or, god forbid, a third accuser appearing, would probably put impeachment back on the table, even for reluctant Republicans. Northam’s apology tour, kicking off next week at Virginia Union, could be a disaster; his recent performances don’t exactly inspire confidence. So calls for resigning could intensify again.

But all this will take time. The speedy resolution that seemed likely in the first few hours after the initial photo surfaced has vanished, replaced by a “new normal” of absurdity piled on absurdity. Welcome to the new “Virginia Way.”