November 3rd, 2019

Bill

Presidents and Impeachment: What are "High Crimes and Misedemeanors"?

"High crimes and misdemeanors" is a phrase found in Section 4 of Article Two of the United States Constitution. That article reads:

"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."



What are high crimes and what are misdemeanors within the context of this phrase? For example, if a President participates in a consensual sexual act with a White House intern at the White House, is this a "high crime"? Is it a misdemeanor? Or is it neither?

At the time the Constitution was written, the adjective "High," in the legal and common parlance of the day referred to an activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons. A high crime is one that can be done only by someone in a unique position of authority, political in character. A "high crime" is generally considered to be one that takes place in order to circumvent justice. The phrase "high crimes and misdemeanors," used together in the U.S. Constitution is thought to cover a very broad range of crimes.

In 1974, when the Judiciary Committee was contemplating the impeachment of Richard Nixon, it wrote a report entitled "The Historical Origins of Impeachment". In the report, the writers stated:

"'High Crimes and Misdemeanors' has traditionally been considered a 'term of art', like such other constitutional phrases as 'levying war' and 'due process.' The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the framers meant when they adopted them."

The English parliament had used the term “high crimes and misdemeanors” to describe one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were often accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. In other words, it was a very broad term. Some of the things it included were crimes, some were not. The only common denominator was that the official had somehow abused the power of his office.

The great revolutionary thinker Benjamin Franklin once expressed his opinion about what the term meant. He argued that the power of impeachment and removal was necessary for those times when the Executive "rendered himself obnoxious". He said that the Constitution should provide for the "regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused."

Another great thinker, James Madison, described impeachment as indispensable to defend the nation against "the incapacity, negligence or perfidy of the chief Magistrate." Madison argued that this power was necessary where a nation was led by a single executive. Madison argued that while a legislature's collective nature provided security, in the case of a President, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic."

The process of impeaching someone in the House of Representatives and the Senate is difficult. This is said to be so in order that the power of impeachment is not used as a political weapon to overturn an election result. It should not be easy to remove people from office for minor reasons and for purely political motives. It is said that Virginian founding father George Mason came up with the term "high crimes and misdemeanors" as one of the criteria to remove public officials who abuse their office. Charles Cotesworth Pinckney said, the power of removal from office by impeachment should be reserved "for those who behave amiss, or betray their public trust."

There is no statutorily created definition for "high crimes and misdemeanors," and therefore the term allows people to remove an official from office for entirely-subjective reasons. In one sense this is a good thing, because it is impossible to create an exhaustive list of what constitutes the term. On the other hand it has the potential for abuse because of its subjective nature. It can be whatever Congress says it is, not necessarily a good thing if Congress is overrun by vindictive or populist officials.

In Federalist Paper No. 65, Alexander Hamilton said, "those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself." In the first impeachment conviction by the United States Senate in 1804, John Pickering, a judge of the United States District Court for the District of New Hampshire, was removed from office due to his chronic intoxication. Federal judges have been impeached and removed from office for tax evasion, conspiracy to solicit a bribe, and making false statements to a grand jury.

When Andrew Johnson was impeached on February 24, 1868, in the United U.S. House of Representatives on eleven articles of impeachment detailing his "high crimes and misdemeanors", the House's primary charge against Johnson was with violation of the Tenure of Office Act, passed by Congress the previous year. Specifically, he had removed Edwin M. Stanton, the Secretary of War from office and replaced him with John Schofield. It was unclear if Johnson had violated the act as Stanton was nominated by President Abraham Lincoln and not by Johnson. Historians have argued that Johnson was not impeached for a valid reason, and the Tenure of Office Act was later found to be unconstitutional. Johnson may have been a poor President, and he was certainly an unpopular one. But it is questionable whether his actions rose to the level of "high crimes and misdemeanors."

Senate-Johnson-Impeachment-Trials

In current times, Congress must wrestle with the issue of whether or not President Donald Trump should be impeached because he has committed "high crimes and misdemeanors." Many have already rushed to judgement and have concluded that his efforts to convince a foreign nation to investigate a political rival meets that standard. Others have similarly concluded that the current impeachment efforts constitute an abuse of process and a miscarriage of justice by misusing the impeachment process for a purely political and tactical motive.