Impeachment: What are “High Crimes and Misdemeanors”?

It was reported this last week that CNN and MSNBC used the word ‘impeachment’ 222 times in a single day.  Tonight, we take a closer look at the constitutional standards for impeachment.

Article II, Section 4 of the U.S. Constitution says the President, the Vice President, and all civil officers of the United States shall be removed from office on impeachment by the House and conviction by the Senate for treason, bribery, or other “high Crimes and Misdemeanors”.  Treason and bribery are fairly clear-cut, but what are high Crimes and Misdemeanors?

Basically, they are whatever Congress says they are, because impeachment is at root a political process, not a criminal process.  But this should not mean that anything goes when impeaching a President.

The Framers of the Constitution quite consciously borrowed the term from England where it was a well-established legal term of art in use for 400 years. It was used to describe a delegation of power to legislative bodies to determine and punish official misconduct on the part of a wide variety of executive and judicial officers.  Over those 400 years in England, the term was used in practice to check the power of the King’s ministers and judges for disobeying the laws, infringing the rights of the people, interfering with the prerogatives of Parliament, abusing the power of the office, and being incompetent or corrupt.  This went well beyond criminal offenses, to political crimes like subverting the system of government.

Interestingly, our Framers went beyond the English practice and applied impeachment to the chief executive, whereas the British did not subject their King to this remedy. 

The Framers considered other terms – “malpractices or neglect of duty”, “corruption”, “corrupting his electors”, “treachery”, “abusing his power”, “perfidy”, “peculation” (which means self-dealing), “oppression”, “betray(ing) his trust to a foreign power” - but ended up rejecting them all.  George Mason argued that these other terms were not broad enough and left many grave offenses out, like “subverting the Constitution” short of treason. “Mal-administration” was considered, but it was decided it was too vague. So they settled on “high Crimes and Misdemeanors” in part because it was defined by 400 years of English usage and practice to include important concepts like abuse of power, and to exclude ordinary political disagreements. Thus, it is clear that the term does NOT mean crimes and misdemeanors in the ordinary sense of today’s criminal law. 

This broad understanding of “high Crimes and Misdemeanors” was reflected in the ratification debates in the states after the U.S. Constitutional Convention in Philadelphia in 1787.  But we will have to wait for our own history to unfold further before we will know the precise meaning of the term in American constitutional law.

More here:
“The Original Meaning of “High Crimes and Misdemeanors” (2 parts)
http://www.libertylawsite.org/2018/08/08/the-original-meaning-of-high-crimes-and-misdemeanors-part-1/
+ http://www.libertylawsite.org/2018/08/09/the-original-meaning-of-high-crimes-and-misdemeanors-part-2/