What Does ‘High Crimes And Misdemeanors’ Mean?

by Joseph M. Bessette & Gary J. Schmitt:  Key Points

• The framers did not give an extended explanation of what constitutes “high crimes and misdemeanors.” However, through an analysis of the text of the Constitution, the Constitutional Convention, the ratification debates, and British and American impeachment precedents, it is possible to reach a broad understanding of what behavior is covered by those terms.
• The key to unlocking that understanding in the case of the presidency is that the office is one of powers whose ends and limits are fixed by a specific set of duties. High crimes and misdemeanors are not limited to actual crimes but extend to an abuse or violation of the public trust in carrying out those duties.
• By judging the actions of executive and judicial officials against the standard of their constitutional duties and broad public responsibilities, the impeachment process serves three great ends: It removes from office those who have forfeited their right to serve, protecting the public from further depredations; it induces others to act in accord with their high public responsibilities; and it provides the citizenry with a vital lesson in the principles of constitutional democracy.

Executive Summary
The United States Constitution establishes that “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.”1 Although British law employed the term for centuries before the American Revolution, the definition of what constitutes “high crimes and misdemeanors” has long been a subject of ambiguity. Even studying the Constitutional Convention and subsequent ratifying debates sheds only a little light on how the founding generation separated impeachable offenses from occasional maladministration.

Demystifying this portion of Article II requires a close study of American legal history, which ultimately illustrates the phrase’s prudential breadth of meaning. At its core, impeachment has historically turned on acts that either impeded a constitutional officer’s capacity to execute their duties or grossly violated public trust. In fact, a number of impeachment trials have revolved almost exclusively around events that were disconnected from an officeholder’s responsibilities, thereby demonstrating that the definition of impeachable infractions does not stop at the abuse of official powers.

The impeachment trials of Sen. William Blount in 1799, Judge Robert W. Archbald in 1912, and Judge Halstead L. Ritter in 1936, among other examples, help illustrate this point. Although he was ultimately acquitted, Congress accused Blount of working with the British to profit from a proposed invasion of Florida and Louisiana—an early indication of the view that an officer could be impeached for conduct unrelated to their role in government. An overwhelming majority convicted Archbald for using his office to receive financial gains from the coal and railroad industry, while Ritter’s case concluded that income tax evasion definitively constituted grounds for impeachment.

If the historic context strongly suggests that “high crimes and misdemeanors” entails a broad range of activities, identifying the duties and scope of public trust associated with each constitutional office is crucial to determining when an officeholder has committed an act warranting impeachment. For example, judges, members of Congress, and the president all take an oath to support the Constitution, but only the executive branch is explicitly tasked with preserving, protecting, and defending the document. As the retainer of an immense share of public trust, the commander in chief cannot be exempt from any infractions that would be considered impeachable for any lower office, provided they were not in direct service of constitutional obligations.

The question of impeachment depends less on a strict legal definition than it does a dedication to political and moral principle. Impeachment exists to protect the public while encouraging those entrusted with political power to live up to the high responsibilities of their office.

Introduction
In upcoming weeks there will be much debate and discussion about the possible grounds for impeaching a president and, in particular, whether the president has committed “high crimes and misdemeanors.” Despite the range of arguments already voiced, we would like to add to that debate by reissuing an analysis we did in late 1998. The report then was tied to the impeachment of President Bill Clinton, so we have removed the sections and sentences tied to that matter. But the heart of our earlier analysis, offered below, is still pertinent to today’s proceedings insofar as it reflects our best effort to come to a judgment about the meaning of “high crimes and misdemeanors” through an analysis of the text of the Constitution, the debates within the Constitutional Convention, the ratification debate, and the history of impeachments in Britain and, more particularly, the United States.

Read the full report.
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Joseph M. Bessette & Gary J. Schmitt (@GaryJSchmitt1) at the American Enterprise Institute (@AEI).

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