This process has already begun for President Donald Trump. Yoni Appelbaum: Impeach Donald Trump. Those most eager to impeach this president may know their Constitution better, but they recognize that crimes are just easier to explain than old Anglo-American legal jargon.
There are two strong arguments against the idea that the phrase requires criminal behavior: a historical one and a practical one.
The practical reasoning is in some ways more important: A standard that permitted the removal of presidents only for indictable crimes would leave the nation defenseless against the most dangerous kinds of presidential behavior.
The British Parliament invented impeachment in , primarily as a legislative counterweight against royal abuses of power. Great Britain has never had a written constitution. And Parliament has never sat down to write an impeachment statute with a neat definition of the behavior that could get a royal minister impeached.
Rather, Parliament has carefully kept impeachment open-ended, recognizing that one never knew in advance what form the royal urge to autocracy might take or what sort of devilry corrupt or ambitious officials might be up to. Over the centuries, Parliament impeached a good many people for a wide variety of misconduct. I could provide examples in eye-glazing antiquarian detail.
Suffice it to say that Parliament has impeached high officials for military mismanagement Lord Latimer, ; the Earl of Suffolk, ; the Duke of Buckingham, ; and the Earl of Strafford, , neglect of duty or sheer ineptitude Attorney General Henry Yelverton; Lord Treasurer Middlesex, ; the Earl of Clarendon, ; Lord Danby, ; and Edward Seymour, treasurer of the Navy, , and giving the sovereign bad advice, especially about foreign affairs William de la Pole, ; Lords Oxford, Bolingbroke, and Strafford, Parliament has also impeached a good many officers for abuse of power, sometimes criminal, but oftentimes not.
When the framers of the Constitution chose the phrase "high Crimes and Misdemeanors" to complement treason and bribery as grounds for impeachment, "they adopted a unique phrase used for centuries in English parliamentary impeachments, for the meaning of which one must look to history. The so-called Rodino Report, entitled "Constitutional Grounds for Presidential Impeachment," was the work of, among others, Bernard Nussbaum, who would serve as President Clinton's first White House counsel, and Hillary Rodham, who would serve as first lady to President Clinton--the next president for whom impeachable offenses would be an issue.
Quite noticeably, all but presumably the last of these are not crimes--even misdemeanors--under the criminal law. Though it will come as a shock to people who acquire their legal knowledge from TV pundits, the phrase "high Crimes and Misdemeanors" has nothing to do with criminal law.
The "somewhat startling" proposition that high crimes and misdemeanors need not be crimes at all is, nonetheless, an indisputable fact demonstrated by the "great preponderance of authority. In fact, there is no such thing as a "high Crime and Misdemeanor" in the criminal law.
Just as a sea lion is something completely different from a lion, and a mongoose completely different from a goose, the "high Crimes and Misdemeanors" mentioned in the Contitution are completely different from crimes and misdemeanors. Attaching "high" to "crimes and misdemeanors" creates an entirely different animal. And, as Rodham and Nussbaum once explained to the nation, the framers knew that.
Impeachment is not a criminal procedure; the acts that justify impeachment are not necessarily criminal acts; and the purpose of impeachment is not punishment.
Indeed, impeachment is not directed exclusively or even primarily at violations of criminal law: Supreme Court Justice Joseph Story in his great Commentaries on the Constitution was especially eloquent on this point. Not only "crimes of a strictly legal character" are impeachable offenses, but also political offenses, growing out of "personal misconduct First used for an impeachment in , the phrase has always referred exclusively to conduct that could lead to an impeachment.
Impeachable offenses encompass "a great variety of circumstances A "high misdemeanor" refers not to a criminal offense just short of a felony, but to misbehavior, bad demeanor. As the Rodino Report explained, "From the comments of the framers and their contemporaries, the remarks of delegates to the state ratifying conventions, and the removal power debate in the First Congress, it is apparent that the scope of impeachment was not viewed narrowly.
Impeachment for misbehavior is not, however, as unlimited as it sounds: the behavior at issue is moral behavior, not Emily Post polite society behavior. According to historical precedent, impeachable misbehavior "means a [misconduct] in the execution of office, or b scandalous behavior in his private capacity.
In the course of prosecuting one of the greatest impeachment trials in Anglo-American history--the impeachment of Warren Hastings--Edmund Burke said: "Other constitutions are satisfied with making good subjects; [impeachment] is a security for good governors. Statesmen who merely transgress "the spirit of the law," Burke said, "can never hope for protection from any of its forms. President Clinton has invoked every legal stonewall in the book, and even some that aren't in the book. Although Burke explicitly ruled out trying impeachments "upon the niceties of a narrow [criminal] jurisprudence," almost any serious crime will evidence a sufficiently diminutive morality as to constitute a "high Crime and Misdemeanor.
Crimes that are malum in se , or wrong in themselves, such as murder or bribery, would certainly fall within the ambit of "high Crimes and Misdemeanors. The moral underpinnings of the impeachment clause can be understood by considering the framers' purpose in crafting a Constitution in the first place. James Madison said the "first aim" of the Constitution was to ensure that men with the "most virtue" would become the nation's rulers.
The Constitution's impeachment power was for "keeping them virtuous whilst they continue to hold their public trust. They were erecting a moral standard because they believed that only virtuous men could maintain a republic.
As one constitutional scholar has pointed out, acts unrelated to job performance are proper subjects for impeachment because "a perjurer or a forger simply could not command the public respect indispensable to the administration of justice.
Impeachment was the means by which the Republic would defend itself from officeholders who could no longer command the public's trust. As Hamilton stated: "Men, in public trust, will much oftener act in such a manner as to render them unworthy of being any longer trusted than in such a manner as to make them obnoxious to legal punishment.
Despite its six hundred years of history, the term "high Crimes and Misdemeanors" has been unfairly described as meaning "whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.
As a procedural matter it is true that, theoretically, the House could impeach and the Senate could convict for an offense that is not a "high Crime and Misdemeanor. All this means is that no one could stop them, just as no one could stop the Senate from concluding in that senators are exempt from impeachment. If they thought they could get away with it, the Senate might conclude that senators are immune from elections, too.
Similarly, the House, Senate, president, and Supreme Court can all pretend that Roscoe Filburn growing wheat on his lot to feed to his livestock affects commerce under the Constitution. There is no appeal from an unconstitutional Supreme Court ruling, just as there is no appeal from an impeachment conviction.
But the absence of an appeal doesn't mean "high Crimes and Misdemeanors" has no meaning, any more than "affecting commerce" or any other particular set of words in the Constitution has no meaning. The general categories of impeachable conduct that developed in the four hundred years of use in Great Britain were these:. Examples of impeachable conduct by officeholders included appointing "unfit persons to office" often relatives and retainers. These were offices they had the strictly legal right to fill, so at worst this was mere neglect of duty.
But appointing "unfit persons" denied the king's subjects the benefits of just and efficient administration. Similarly, Justice Joseph Story included as an impeachable offense "habitual disregard of the public interests, in the discharge of the duties of political office. English courtiers were impeached for persuading the king to give them excessive gifts. These favors from the crown were not in themselves illegal, but it was held that using their access to the king for personal benefit was an abuse of power.
Obviously, the categories tend to bleed into one another and specific incidents might fall into more than one category. For example, compromising the country's national security interests by leasing ports to the Chinese government or granting waivers for the transfer of sensitive technology could constitute corruption, betrayal of trust, or neglect of duty.
Using the FBI and the IRS to harass a civil servant whose pink slip was sought by the president's friend and contributor might qualify as corruption, abuse of power, or neglect of duty if the president was simply unaware of his subordinate's machinations. Granting perks and government jobs to people whose silence is sought constitutes corruption, abuse of power, and betrayal of trust--perhaps even misapplication of funds. Despite the high-sounding nature of these categories from the old country, oral sex from the interns in the Oval Office will do.
Even in England impeachable conduct included personal vices. Men of weak character would place the government in disrepute. As was remarked in one English case, officers of the crown should not act so as to bring "scandal on the public justice of the Kingdom. But when the impeachment device made its way across the ocean to America, it was inserted into a Constitution that created a government unlike any other.
The different context gave impeachments a different color. Watergate-era cliches about the president "subverting constitutional government" were over-wrought rhetoric then; this is not the standard now. To paraphrase the current "just about sex" line, Watergate was about a two-bit breaking and entering. And unlike with Monica Lewinsky, it wasn't committed by the president, or even by people who worked at his White House, but by people who worked for his campaign committee.
Grand-sounding treacheries weren't required by the framers, weren't required for Nixon, and aren't required now. It's enough for the president to be a pervert. The British categories for high crimes and misdemeanors weren't rejected by the framers so much as they were expanded and reshuffled for use in a different country. Abuse of power may not be a crime. But it is absolutely a high crime and misdemeanor.
What evidence of a crime do you have? What Whitaker is trying to do is define high crimes and misdemeanors as, well, crimes.
Acts that violate the criminal code. Matthew Whitaker: Abuse of power is not a crime pic. Which is a clue that modern definitions are not sufficient. In that light, the conclusion is inescapable.
But it is, indisputably, a high crime and misdemeanor. The first question was whether there should be an impeachment power at all. Some delegates opposed it, but their objections were quickly dispatched. The next question, then, was on what grounds impeachment would be merited. A number of formulations were proposed and rejected. But was high crimes and misdemeanors truly less vague than maladministration? There are two lessons to be drawn from this history. Andrew Johnson was the first U.
President to be impeached. Johnson became President after President Abraham Lincoln was assassinated. He was a unionist but also a Southern Democrat who was fine with a swift reconciliation with the South, without much social reform or protection for freed slaves. The Republican-controlled Congress deeply disagreed, and worried that Johnson was firing cabinet officials from the Lincoln Administration to replace them with officials more partial to his vision of Reconstruction.
The Republicans promptly passed the Tenure of Office Act , which barred the President from firing certain executive branch officials without senatorial approval. The case went to the Senate, where he came one vote away from being convicted and removed. Three articles were approved by the Judiciary Committee but Nixon resigned before the House took the full vote.
But, as Bowman explains, scholars still tend to treat the articles of impeachment brought against him as important precedent. He was charged with obstruction of justice, abuse of power and contempt of Congress.
While Nixon did commit crimes, Bowman adds, none of the articles were framed in relation to the specific criminal statutes he broke.
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