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Copyright 2020 Dan Cofran

Scholars have long agreed that “high Crimes and Misdemeanors” for impeachment and conviction do not have to be crimes or otherwise unlawful.

The “high Crimes and Misdemeanors” phrase was a well known term of art in English law and governance in the 1600s and 1700s as acts of government officials in breach of the public trust vested in them as persons in “high” public office executing their official duties. “High” refers not to the seriousness of the act. It refers to the high position of the actor.

More is expected of government officials because of their oaths of office and the public’s entrusting them with special duties and grave responsibilities that don’t apply to the rest of us mortals. The focus is misconduct, whether a crime or not, or even whether “unlawful” but not technically a crime, that violates this high public trust and subverts our system of government. Constitutional law by its nature does not focus on specifics. It sets forth principles. It generally does not limit itself to specifics. Specifics are left to detailed statutes.

Alexander Hamilton described impeachable offenses as “offenses” which proceed from the misconduct of public men . . . from the abuse or violation of some public trust. . . . . [T]hey relate chiefly to injuries done immediately to the society itself,” as opposed to private wrongs or private conduct directed to individual members of society.

Scholars uniformly use the shorthand summary that not all acts that are “high Crimes and Misdemeanors” are crimes and that not all acts that are crimes are “high Crimes and Misdemeanors.”

For example, accepting emoluments as an elected president of our nation from foreign governments without the consent of Congress violates the Constitution. However, accepting prohibited emoluments is not a crime under our criminal code. It is “unlawful” under the Constitution as a public wrong, but is not a “crime.”

Conversely, a federal office holder shooting a hunting companion while on private land under circumstances constituting gross negligence under the criminal law has not committed a “high Crime and Misdemeanor.” The focus is whether an official’s acts are in furtherance of his or her official duties and rise to the level of a breach of the public trust, as opposed to a private wrong against a private individual.

The Constitution

As always, the starting place is the Constitution itself. Impeachment, trial, conviction and removal from office appear in five provisions of the Constitution.

Article II, governs the Executive Branch and provides:

“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.” Art. II, Sec. 4.

Article I governs the Legislative Branch. House requirements and powers are assigned in Sec. 2 of Art. I. Senate requirements and powers are set forth in Sec. 3 of the article. Together, they divide impeachment powers and process between the House and Senate, following the Constitution’s separation of powers principles to keep governmental bodies in check of each other, as follows:

“The House of Representatives . . . shall have the sole Power of Impeachment” [like an indictment in today’s practice]. Art. I, Sec. 2, cl. 3

Art. I, Sec. 3, turns to the Senate: and states:

“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Art. I, Sec. 3, cl. 6.

“Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Art. I, Sec. 3, cl. 7.

Finally, the Constitution limits Presidential powers regarding impeachments.

“The President . . . shall have Power to grant Reprieves and Pardon s for Offenses against the United States, except in Cases of Impeachment.” Art. II, Sec. 2, cl. 1.

Court Decisions

There are no court decisions interpreting the “high Crimes and Misdemeanors” provision. The courts stay out of the matter. They interpret the preceding Constitutional provisions giving the House the “sole” power of impeachment and giving the Senate the “sole” power to try impeachments as barring the courts from interfering as a separation of powers matter. “Sole” means “sole.” The few cases that have been brought have been declined as presenting “non-judicial political questions.”

Other Sources of Meaning

Meaning must be found in history, primarily the Federalist Papers written by Alexander Hamilton, James Madison and John Jay explaining and advocating for the proposed Constitution, debates from the Constitutional Convention, debates at the states’ ratifying conventions, English common law and practice, historical scholars’ commentaries and non-binding historical precedent from past impeachments and impeachment trials in the Congress.

As to the latter, the House has impeached 19 federal officers – 15 federal judges, one Cabinet member and two Presidents (Andrew Johnson and Bill Clinton; Richard Nixon resigned before impeached). The Senate has tried 16 of these cases, with eight Senate convictions, all federal judges.

These eight judges were tried for committing non-criminal acts, non-criminal unlawful acts and criminal acts. They run the gamut and include frequent drunkenness at the bench, unlawful rulings, political bias, arbitrary rulings, pursing partisan political agendas, abuse of power, graft, corruption, supporting the Confederacy, unlawful appointments under the Tenure Act, failure to reside in a required judicial district, accepting gifts from litigants and attorneys, tax evasion, conflicts of interest, obstruction of justice, contempt of Congress, accepting a bribe, perjury, use of position for personal profit and submitting false financial disclosures. In fact, less than a third of impeachments have specifically cited criminal statutes or even used the word “criminal.”

Legal scholars have cataloged past impeachments and impeachment trials in great detail. They have concluded that the wide range of impeachable acts . . . non –criminal, unlawful and criminal . . . fall into three categories: (1) improperly exceeding or abusing the powers of office, (2) behavior incompatible with the function and purpose of office and (3) misuse of office for an improper purpose or for personal gain.

In addition, Congressional committee reports studying past impeachments and impeachment trials include non-criminal conduct as “high Crimes and Misdemeanors,” noting that English impeachments for “high Crimes and Misdemeanors” included non-criminal conduct and that Framers adopted this meaning. English standards, for example, included “constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself” and non-criminal “serious violations of the public trust.” One report defined “high Crimes and Misdemeanors” as “misconduct that damages the state and the operations of government institutions.”

Conclusion

In the end, the unique nature of impeachments and impeachment trials as a hybrid judicial and legislative proceeding with sole power to make the rules confined to the House and the Senate, with no judicial involvement, can make precisely defining “high Crimes and Misdemeanors” challenging.

However, our history is perfectly consistent. Misconduct is the key, not whether the misconduct is criminal, non-criminal or unlawful. “High Crimes and Misdemeanors” means misconduct by high government officials taken in their official capacities that breach the public trust vested in them and subvert our democratic system of government. Misconduct is misconduct, whether criminal or non-criminal.

Those who claim “high Crimes and Misdemeanors” are limited to criminal or unlawful conduct are using a false yardstick; they know it and should be ignored.

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© 2020 – 2021, Dan Cofran. All rights reserved.