High Crimes and Misdemeanors

November 11, 2019
 

We know that the United States Constitution gives the House of Representatives the power to impeach, or bring formal charges against the President, and gives the Senate the right to try those charges, acting as a court of law.

We also know that the Constitution says the President may be impeached and removed from office for “Treason, Bribery, and other High Crimes and Misdemeanors…”   While treason and bribery seem straightforward, the meaning behind “high crimes and misdemeanors” is less clear.  The Constitution does not supply a definition.  Where did the words come from, and what do they mean?

When the Constitutional Convention in Philadelphia was underway, delegate George Mason asked his colleagues whether treason and bribery should be the only grounds for presidential impeachment.  Mason was worried that those terms were inadequate, as they would not include subtler attempts to subvert the Constitution.  He thought it possible that foreign powers might corrupt the President, and Mason also worried that presidential powers could be used to derail an appropriate inquiry.  The delegates became convinced that broader language would be useful, and “high crimes and misdemeanors” was adopted.

Jennifer Pahre from the University of Illinois College of Law

Photo Credit: University of Illinois College of Law

When President Nixon was confronting impeachment, the United States House Judiciary Committee explored the history behind the phrase.  It turns out that “high crimes and misdemeanors” is a term of art, like “due process of law.”  In the impeachment context it dates back to the 14th century, when the First Earl of Suffolk was impeached by the English Parliament.  The United States House Judiciary Committee concluded that the phrase should be construed according to what the Constitutional Framers meant when it was adopted.

We have some helpful guidance from the Framers on this point.  In Federalist Paper Number 65, Alexander Hamilton said that impeachment could arise from misconduct, or from “the abuse or violation of the public trust.”  So, impeachment need not be a criminal matter. 

Benjamin Franklin claimed that impeachment and removal was necessary when the President “rendered himself obnoxious.” James Madison felt that impeachment was required to preserve the nation against “incapacity, negligence, or perfidy.” 

Madison also worried about loss of capacity or corruption; he felt that “either of them might be fatal to the Republic.” Madison also said that the President would be impeachable for “the wanton removal of meritorious officers,” and similarly for failing to remove unfit people from office.  This conduct, said Madison, should “subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.”

Finally, James Iredell believed that a president who gave false or incomplete information to Congress would be impeachable.  

Prior impeachment claims have set forth interesting charges.  The 1868 Articles of Impeachment filed against President Andrew Johnson included the assertion that his actions had rendered the presidency subject to “contempt, ridicule and disgrace.”  It should be noted that Johnson had questioned the authority of Congress, which Congress did not appreciate. Johnson was impeached, but avoided removal from office by the vote of one Senator.

Ultimately, despite historic guidelines, the definition of an impeachable offense is something to be decided by the players involved.  When Gerald Ford was serving as the House Minority Leader, before he became Vice President and then President himself, he said that an impeachable offense is “whatever a majority of the House of Representatives considers it to be in a given moment in history.”