High Crimes and Misdemeanors
Response to Question about High Crimes and Misdemeanors
A reader sent an e-mail question on the meaning of "high crimes and misdemeanors" and whether former President Clinton's position makes sense under the common law and British impeachment law. In my opinion, yes. A fully reasoned answer with authorities requires much too much space for this site. Consequently, I provide here after my opinion a few interesting pieces from some sources. Among so many books and articles to read, those unfamiliar with the process should start with Alexander Hamilton's Number LXV in THE FEDERALIST for an appreciation of the solemnity and delicacy of impeachment.
My Opinion Before the Judiciary Committee Vote:
The alleged actions of President Clinton do not constitute high crimes and misdemeanors which are the intended objects of impeachment. Clearly the efforts to make legal arguments in appropriate legal forums do not constitute obstruction of justice. The piggish behavior of the President, given his history and position, is brutishly stupid, but not an impeachable offence. Finally, assuming that the President did lie to the public about the affair, and assuming he did wilfully and unreasonably quibble about the meaning of "sexual relations," these are not high crimes and misdemeanors in violation of the public trust in matters of State. An intelligent man with an enormous ego in an important office under great public scrutiny is not likely, under most circumstances, to admit such stupidity and irresponsibility in his private life. These are personal failings of our president, for which the people might not re-elect him if he could run for office again, but they are not corrupt crimes against the United States. Of course, perjury is a felony, and to the extent the President committed such a crime he should be subject to the possibility of criminal process like any one else. Impeachment is a political process designed to remove officers who breach the public trust in matters of state.
March 9, 1999
Final Comment (and no more)
The process of impeachment seemed to move along inexorably. I worried about its implications for the future of the presidency and our country. This impeachment struck menacingly at the structure of our democracy; the border of distance and protection between the legislative and the executive was fraying. The legislature in this democracy must not exercise a power to take away the choice of the people (the President) unless, and only when, removal becomes necessary for the safe and proper functioning of government. The framers of our constitution regretted putting this decision in the hands of the legislature for fear that it would act on partisanship, but gave this power to the legislature because the people must be the ultimate decision-makers.
No constitutional foundation supports a vote of censure. A resolution of this kind is unwise because future legislatures may be encouraged from this experience to invoke the same process again. Impeachments may become less painful and cumbersome if a safety valve saves the president and legislators from more draconian consequences. Then it all becomes a new political game in which the legislature wields an old weapon in a new and more effective way against the elected president. Some historical precedent exists, but to conclude that censure is a good solution on that ground alone is dubious. At the time this is written, the process is too far along, and the consequences for the country too near, to rule out censure, or some other form of non-partisan compromise, as an acceptable alternative to impeachment.
Impeachment of President Nixon hardly compares with President Clinton. Nixon's acts constituted an unquestionable abuse of power, at the least. We forgive the "impeachers" of President Johnson as we remember that the country at the time struggled with the effects of a gut-wrenching civil war. President Clinton's misrepresentations, lies, or if you must, crimes of perjury, were not about matters of State, and do not impact on matters of State unless we let them or cause them to. This is not a nation of school marms pointing the finger at every presidential indiscretion. The smug, even self-righteous prosecution of this president is partisanship in its purest and simplest form. If it had succeeded, the presidency would be woefully weakened, few would want to be president and face the same scrutiny, and future elected presidents would remain in office at the whim of the legislature, as Mr. Madison had warned in 1787.
Now that the Senate concluded the impeachment trial with acquittal, we escaped the crisis I feared, and hope our country is strengthened by the experience. Thank God for the modern technology that gives us a relatively accurate and immediate assessment of American public opinion. In this case the public held us firmly and securely to a sane result.
ARTICLE II, SECTION 4:
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.
Commentaries on the Laws of England, Book the Fourth, by William Blackstone, Oxford 1769, from the 1983 facsimile Special Edition of The Legal Classics Library, Division of Gryphon Editions, Birmingham, Alabama.
[Discussing crimes against the public, Blackstone begins with:]
- The high court of Parliament; which is the supreme court in the kingdom, not only for the making, but also for the execution, of laws; by the trial of great and enormous offenders, whether lords or commoners, in the method of parliamentary impeachment.
But an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law, and has been frequently put in practice; being a presentment to the most high and supreme court of criminal jurisdiction by the most solemn grand inquest of the whole kingdom. A commoner cannot however be impeached before the lords for any capital offence, but only for high misdemeanors: a peer may be impeached for any crime.
The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords; who are in cases of misdemeanors considered not only as their own peers, but as peers of the whole nation. This is a custom derived to us from the constitution of the antient Germans ....
For, though in general the union of the legislative and the judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either dares not or cannot punish. Of these the representatives of the people, or house of commons, cannot properly judge; because their constituents are the parties injured: and can therefore only impeach.
Records of the Debates in the Federal Convention of 1787, as reported by James Madison, from the 1989 facsimile Special Edition of the Legal Classics Library, Birmingham, Alabama.
- Insert here from Printed Journal p. 13 copy of the Resolutions of Mr. Randolph as altered in the Committee and reported to the House.
9. Resolved. that a national Executive be instituted to consist of a single person. to be chosen by the national legislature. for the term of seven years. with power to carry into execution the national Laws, to appoint Offices in cases not otherwise provided for to be ineligible a second time, and to be removable on impeachment and conviction of mal practice or neglect of duty, ....
- Mr. RANDOLPH. The propriety of impeachments was a favorite principle with him. Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the legislature from the business.
Mr. GOVERNOUR MORRIS's opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard against it by displacing him. One would think the King of England well secured against bribery. He has as it were a fee simple in the whole kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to justice however we should take care to provide some mode that will not make him dependent upon the Legislature.
- Mr. Rutlidge delivered in the Report of the Committee of detail as follows: a printed copy being at the same time furnished to each member:
Before he shall enter on the duties of his department, he shall take the following oath or affirmation, "I -------- solemnly swear, (or affirm) that I will faithfully execute the office of President of the United States of America." He shall be removed from his office on impeachment by the House of Representatives, and conviction in the supreme Court, of treason, bribery, or corruption.
- Mr. Brearly from the Committee of eleven made a further partial Report as follows
"The Committee of Eleven to whom sundry resolutions &c were referred on the 31st of August, report that in their opinion the following additions and alterations should be made to the Report before the Convention, viz
The latter part of Sect. 2. Art: 10. to read as follows.
(9) 'He shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery, ....'
- The clause referring to the Senate, the trial of impeachments against 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 moved 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. GOVERNOUR 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 and misdemeanors against the State."
On the questions thus altered
N.H. ay. Mass. ay. Ct. ay. N.J. no. Pa. no. Del. no. Md. ay. Va. ay. N.C. ay. S.C. ay. Geo. ay.
The Debate on the Constitution, Part One, 1993 by the Literary Classics of the United States, New York, N.Y., from the facsimile Special Edition 1993, Gryphon Editions, New York, New York.
[From The Federalist LXV (Alexander Hamilton):]
- 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 offences 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.
[From James Iredell on the Presidency, Spies, the Pardoning Power, and Impeachment, at the North Carolina Convention, July 28, 1788:]
- The power of impeachment is given by this Constitution, to bring great offenders to punishment. It is calculated to bring them to punishment for crimes which it is not easy to describe, but which every one must be convinced is a high crime and misdemeanor against the government.
The punishment annexed to conviction on impeachment, can only be removal from office, and disqualification to hold any place of honour, trust or profit. But the person convicted is further liable to a trial at common law, and may receive such common law punishment as belongs to a description of such offences, if it be one punishable by that law.
[From James Iredell on Impeachment: "It Must Be for an Error of the Heart, and Not of the Head" at the North Carolina Convention, July 28, 1788:]
- ...If they were punishable for exercising their own judgment, and not that of their constituents, no man who regarded his reputation would accept the office either of a Senator or President. Whatever mistake a man may make, he ought not to be punished for it, nor his posterity rendered infamous. But if a man be a villain, and wilfully abuses his trust, he is to be held up as a public offender, and ignominiously punished.
A public officer ought not to act from a principle of fear. Were he punishable for want of judgment, he would be continually in dread. But when he knows that nothing but real guilt can disgrace him, he may do his duty firmly if he be an honest man, and if he be not, a just fear of disgrace, may perhaps, as to the public, have nearly the effect of an intrinsic principle of virtue. According to these principles, I suppose the only instances in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other.
Posted: to Legal History and Philosophy of Law on Tue, Jul 9, 2019
Updated: Fri, Jul 12, 2019