With what’s going on in Congress this week, I thought I’d
dig in to discover the meaning of a troublesome phrase: “high crimes and
misdemeanors.”
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| Article II, Section 4 of the US Constitution |
I’ve had my own idea of what this means—that the “high” is
an adjective modifying “crimes,” and is simply an alternative phrase meaning “felony.”
So the whole phrase simply means felonies or misdemeanors—which is fairly broad.
As I’ve always seen it, the phrase
cannot be rewritten as “high crimes and high misdemeanors,” which was the
approach taken by Clinton defenders in the 1990s.
A felony, in most cases that a lay person can come up with,
ought not to be committed by a president, a judge, or other government
official. They’re not above the law. But a misdemeanor is more troublesome.
Depending on how broadly you look at it, a misdemeanor might be anything from
rolling through a stop sign to committing voter fraud. Let’s agree that we
shouldn’t be removing a duly elected president for something trivial. But there
are some misdemeanors—such as the voter fraud example—that could qualify as
seriously breaking trust with the American people.
So, what does this phrase mean? And, maybe more pertinent,
what did it mean to those who wrote it? That’s what I’ve been trying to find
out.
Let’s start with the actual meaning. A year and a half ago,
law professor Michael Stokes Paulsen wrote a series of pieces addressing this
question[i].
According to his research, I’m somewhat wrong about what I’ve always thought
the phrase meant. Specifically, it does not necessarily refer to actual
statutory crimes, either felony or misdemeanor. While felonies and many
misdemeanors would fit within the definition, actual statutory crime is not
necessary. But it does refer to a misuse of office and abuse of the public’s
trust.
He says it was a phrase familiar to the founders. It had
been in use for at least four centuries, so they had a specific picture in
their minds of what it would mean:
The meaning of “high Crimes and Misdemeanors” was, so to
speak, its own distinct thing. It was not a combination of “crimes” and
“misdemeanors” as understood in today’s criminal-law sense. It was instead a
unique legal term with its own meaning. The framers of the Constitution
understood and used the phrase in that specialized sense, consciously adopting
a known English-practice term of art in preference to other proposed
formulations of the impeachment standard. And the ratification debates
uniformly reflect that same broad understanding.
There was a case in the British Parliament, prosecuted by Edmund
Burke, against Warren Hastings, in the Spring of 1787, just months before the
Constitutional Convention, in Philadelphia, so we can assume the founders were
well aware of the impeachment case, and the phrase “high crimes and misdemeanors,”
which it entailed. It held a specific meaning for them.
What were the concerns of the founders that led them to
choose this phrase? They had alternatives: treason, bribery, abuse of power.
They needed a way to encompass these things, plus whatever else ought to be
covered.
We know some of their concerns from the convention notes,
for example the report to the Committee of the Whole on June 13, 1878, shows:
·
George Mason was concerned about “corruption.”
·
Gouverneur Morris wanted to guard against a
president “corrupting his electors” to gain office, betraying his trust, being
in foreign pay, or engaging in “bribery,” “treachery,” or other corruption.
·
James Madison had quite a list, fearing: a
president’s “negligence,” “perfidy” (dishonesty), that a president might
“pervert his administration into a scheme of peculation [self-dealing] or
oppression,” or might “betray his trust to a foreign power.”
Here’s are notes from the floor debate of September 8, 1787:
The
clause referring to the Senate, the trial of impeachments agst. The President,
for Treason & bribery, was taken up.
COL.
MASON. Why is the provision restrained to Treason & bribery only? Treason
as defined in the Constitution will not reach many great and dangerous
offences. Hastings is not guilty of Treason. Attempts to subvert the
Constitution may not be Treason as above defined. As bills of attainder which
have saved the British Constitution are forbidden, it is the more necessary to
extend the power of impeachments. He movd. To add after “bribery” “or
“maladministration”. Mr. Gerry seconded him –
Mr.
Madison. So vague a term will be equivalent to a tenure during pleasure of the
Senate.
Mr.
Govr Morris, it will not be put in force & can do no harm – An election of
every four years will prevent maladministration.
Col.
Mason withdrew “maladministration” & substitutes “other high crimes &
misdemeanors agst. the State”
The question, then, was how to handle the “many great and dangerous
offences” that didn’t qualify as treason. Would adding “bribery” or “maladministration”
cover those fears? No—too vague. As Madison said, if it’s too vague, you’re
essentially giving the impeaching body power to determine whether or not the
president is allowed to serve. This is, I think, an essential point to think
about this week.
So they removed “maladministration,” which would be handled
by the next election, and substituted the phrase “other high crimes &
misdemeanors against the State.” The final version in the Constitution leaves
off “against the State,” but otherwise leaves Mason’s suggestion intact.
One other way we know what the founders were thinking is through
The Federalist Papers, a series of op-eds written mainly by Alexander Hamilton,
John Jay, and James Madison, to answer questions about what the Constitution
meant, to encourage the states to ratify. My copy skips from No. 64 to No. 69.
But No. 65, written by Hamilton, is actually about impeachments—as a
continuation of the powers of the Senate being covered by Jay in No. 64. So,
here is Hamilton, writing Federalist No. 65 March 7, 1788:
A well-constituted court for the trial of impeachments is an
object not more to be desired than difficult to be obtained in a government
wholly elective. The subjects of its jurisdiction are those offenses 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. The prosecution of them, for this reason,
will seldom fail to agitate the passions of the whole community, and to divide
it into parties more or less friendly or inimical to the accused. In many cases
it will connect itself with the pre-existing factions, and will enlist all
their animosities, partialities, influence, and interest on one side or on the
other; and in such cases there will always be the greatest danger that the
decision will be regulated more by the comparative strength of parties, than by
the real demonstrations of innocence or guilt.
Much of this paper concerns why the Senate is the correct
body to conduct an impeachment. But let’s look at the requirements for
impeachment first.
·
There must be an abuse or violation of some
public trust.
·
This is of a “political” nature, because it
injures society itself.
Because the violation injures the whole community, it’s
going to ignite passions and emotions. And people will divide into those for
and against the accused—most likely along existing party lines, with all their
existing animosities and partialities. That means there is a danger that judgment
could come down to the strength of the parties, rather than the evidence of
innocence or guilt.
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| The Senate as a Court of Impeachment for the trial on Andrew Johnson, Library of Congress LC-USZ62-1732 |
We’re seeing that play out now. Members of this House of
Representatives declared they would impeach the President, starting before his
inauguration—at which time he had not yet had any opportunity to wield power,
let alone abuse it. And, while some members of the majority Democrat party are
likely to vote against impeachment this week, no Republicans will vote for it,
because no evidence of a crime has been produced. The charges have been watered
down from “bribery” to a broadly used “abuse of power” that comes down to “We
don’t like him in power,” plus a made up “obstruction of Congress charge,”
which is not only not wrongdoing, it is part of the design of the
separation of powers, what we might call “checks and balances.”
Congress is impeaching the President because they do not
like him, or what he says or does—and they really don’t like that he doesn’t
take orders from them.
Remember back to the Clinton impeachment hearings. He was
accused of lying under oath in cases in which he was accused of sexually
abusing women and using the power of his office for sexual favors. He did
indeed lie under oath—the main impeachable offense; he was convicted and lost
his law license over it. He also lied directly to the American people, which
may not be illegal, but might certainly feel like a betrayal of the public
trust. He did indeed use the power of his office for sexual favors, engaging in
sex, in the People’s Oval Office, with a 21-year-old intern, who, while
technically an adult, was at a huge power disadvantage—something that recent #MeToo
stories would recognize as foul.
The Republican-majority House impeached him, sending charges
along to the Democrat-led Senate. There, the argument came around to “Does this
rise to the level of high crimes and misdemeanors?” Some of those very same
Democrats now are trying to claim Trump’s situation—lack of evidence of
wrongdoing notwithstanding—is somehow much worse than Clinton’s actual crime
had been.
That’s why the final decision of removing a president from
office could not be left to the House. It is a politically led body.
But, originally the Senate was elected by state
legislatures, for the purpose of representing the interests of the individual
states. That changed with the 17th Amendment in 1913, after which
senators were directly elected by the people of the state.
It’s debatable whether we’d ever want to go back, but it
does mean there’s less attention to the interests of the state than when the
state legislature would decide whether to re-elect—and more attention to the
interests of the people who get the senators’ attention.
With what the House has done to President Trump, there is
danger that, if there is ever a time the president is from a different party
than the majority in both the House and Senate, they could conceivably impeach
and remove him from office at will. That’s the very fear Hamilton thought had
been addressed.
[i] I
started with the Michael Stokes Paulsen’s “The Original Meaning of ‘High Crimes and Misdemeanors,’ Part I,” from August 8, 2018, and “Part II,” from August 9, 2918, but there
were five before these, and possibly more after, enough to comprise a small
book. Here are the additional ones:
·
“Taking Impeachment Seriously,” June 28, 2018.
·
“Constitutional Interpretation and the Impeachment Power,” July 5, 2018.
·
“Could Aaron Burr Have Been Impeached for theDuel?” July 11, 2018.
·
“Impeaching Judges: Some Preliminary and Prior Thoughts,” July 18, 2018.
·
“The Propriety of Presidential Impeachments, Past and Present,” July 19, 2018.
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