What Does “High Crimes and Misdemeanors” Mean?

JOSEPH M. BESSETTE AND GARY J. SCHMITT NOVEMBER 2019

AMERICAN ENTERPRISE INSTITUTE Executive Summary

he United States Constitution establishes that working with the British to profit from a proposed T“The President, Vice President and all civil Offi- invasion of Florida and Louisiana—an early indica- cers of the United States, shall be removed from tion of the view that an officer could be impeached Office on Impeachment for, and Conviction of, Trea- for conduct unrelated to their role in government. son, Bribery, or other high Crimes and Misdemean- An overwhelming majority convicted Archbald for ors.”1 Although British law employed the term for using his office to receive financial gains from the coal centuries before the American Revolution, the defi- and railroad industry, while Ritter’s case concluded nition of what constitutes “high crimes and misde- that income tax evasion definitively constituted meanors” has long been a subject of ambiguity. Even grounds for impeachment. studying the Constitutional Convention and sub- If the historic context strongly suggests that “high sequent ratifying debates sheds only a little light on crimes and misdemeanors” entails a broad range of how the founding generation separated impeachable activities, identifying the duties and scope of public offenses from occasional maladministration. trust associated with each constitutional office is cru- Demystifying this portion of Article II requires cial to determining when an officeholder has com- a close study of American legal history, which ulti- mitted an act warranting impeachment. For example, mately illustrates the phrase’s prudential breadth of judges, members of Congress, and the president all meaning. At its core, impeachment has historically take an oath to support the Constitution, but only turned on acts that either impeded a constitutional the executive branch is explicitly tasked with preserv- officer’s capacity to execute their duties or grossly ing, protecting, and defending the document. As the violated public trust. In fact, a number of impeach- retainer of an immense share of public trust, the com- ment trials have revolved almost exclusively around mander in chief cannot be exempt from any infrac- events that were disconnected from an officeholder’s tions that would be considered impeachable for any responsibilities, thereby demonstrating that the defi- lower office, provided they were not in direct service nition of impeachable infractions does not stop at the of constitutional obligations. abuse of official powers. The question of impeachment depends less on The impeachment trials of Sen. William Blount a strict legal definition than it does a dedication to in 1799, Judge Robert W. Archbald in 1912, and political and moral principle. Impeachment exists Judge Halstead L. Ritter in 1936, among other exam- to protect the public while encouraging those ples, help illustrate this point. Although he was entrusted with political power to live up to the high ultimately acquitted, Congress accused Blount of responsibilities of their office.

1 What Does “High Crimes and Misdemeanors” Mean?

Joseph M. Bessette and Gary J. Schmitt

n upcoming weeks there will be much debate and history of impeachments in the United States under I discussion about the possible grounds for impeach- the constitutional provisions. ing a president and, in particular, whether the presi- How and why was the phrase “other high crimes dent has committed “high crimes and misdemeanors.” and misdemeanors” added to the Constitution? Despite the range of arguments already voiced, Here the record is relatively clear. As the Con- we would like to add to that debate by reissuing an stitutional Convention was drawing to a close in analysis we did in late 1998. The report then was September 1787, Virginia delegate George Mason tied to the impeachment of President Bill Clinton, objected to the fact that the only grounds listed in so we have removed the sections and sentences tied the draft constitution for impeaching a president at to that matter. But the heart of our earlier analysis, that point were “treason” and “bribery.” This left any offered below, is still pertinent to today’s proceed- number of “great and dangerous offenses,” including ings insofar as it reflects our best effort to come to efforts “to subvert the Constitution,” uncovered. It a judgment about the meaning of “high crimes and was, Mason contended, incumbent on the members misdemeanors” through an analysis of the text of the of the Convention “to extend the power of impeach- Constitution, the debates within the Constitutional ment” to reach these other possible offenses. Thus, Convention, the ratification debate, and the history he suggested adding “maladministration.”2 of impeachments in Britain and, more particularly, To this, however, fellow Virginian James the United States. Madison objected: “Maladministration” was too “vague a term.” It was a license for the Senate to remove presidents at will, potentially rendering The Origin and Imprecision of the Phrase the president a mere servant of the Congress. In “High Crimes and Misdemeanors” response to Madison’s objection, Mason suggested that the phrase “other high crimes & misdemean- The current discussion over what constitutes ors against the State” be added instead. Apparently impeachable offenses stems from the fact that the without debate, the delegates accepted Mason’s Constitution itself is silent on the meaning of “high new language by a vote of 8­–3. A few days later the crimes and misdemeanors” and the record from the language was finalized after the Committee of Style Constitutional Convention is ambiguous. Histori- dropped the phrase “against the State.”3 Based on ans, law professors, and political scientists reading this brief record, all one can say for sure is that the same original materials reach quite different con- those who wrote the Constitution wanted a presi- clusions. Our particular contribution, as will become dent to be impeachable for offenses or misbehavior evident below, is to find more guidance on this mat- in addition to treason and bribery but not for all ter than others have in the Constitution itself, the acts that might be viewed as bad administration of records from the state ratifying conventions, and the the office.

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Unfortunately, the record of the debates that fol- of a “high misdemeanor,” subject to parliamentary lowed in the state ratifying conventions provides impeachment, was “mal-administration of such high little additional insight into the precise meaning of officers as are in public trust and employment.”20 the phrase “high crimes and misdemeanors.” For (Interestingly, just two years after the Convention one thing, impeachment was not a matter that gen- met, on June 17, 1789, James Madison argued on the erated much discussion, and what discussion there floor of the House of Representatives that if a presi- was focused on how impeachment could be squared dent “displace[d] from office a [subordinate] whose with separation of powers. When the substantive merits require that he should be continued in it . . . grounds for impeachment were mentioned at all, they [he would be] impeachable by this House, before the were most often described simply as some unspec- Senate, for such an act of mal-administration; for I ified violation of the public trust. In this regard, contend that the wanton removal of meritorious offi- Alexander Hamilton was right in step with his con- cers would subject him to impeachment and removal temporaries when, writing in The Federalist, he from his own high trust.”21 Moreover, the day before stated that impeachment is for “the misconduct of he asserted that the president “is impeachable for any public men . . . from the abuse or violation of some crime or misdemeanor before the Senate.”22) public trust.”4 The lengthiest recorded comments made on Other prominent founders were equally imprecise. impeachment at the state ratifying conventions At the South Carolina ratifying convention Charles were those of James Iredell of North Carolina, who Cotesworth Pinckney, who had also served at the two years later would begin a decade of service as an Philadelphia convention, explained that the House associate justice on the new US Supreme Court. As of Representatives could impeach “those who behave part of a general explication of the proposed Con- amiss, or betray their public trust.”5 At the Virginia stitution and the presidency, Iredell explained that convention Gov. Edmund Randolph, who had intro- the impeachment process made it possible to bring duced the Virginia Plan in Philadelphia, asserted that “great offenders to punishment” and remove from the president could be impeached if he “misbehaves.”6 office those whose actions had caused “great injury to Other delegates to the ratifying conventions, many the community.” In making these comments, Iredell relying on British precedents, identified such grounds did not distinguish between “treason,” “bribery,” and of impeachment as “malconduct,”7 “misconduct,”8 “high crimes and misdemeanors,” leaving it unsettled “mal-practices,”9 “mal-administration,”10 “any mis- whether his summary description was meant to com- demeanor in office,”11 “great misdemeanors against prehend all three grounds for impeachment or simply the public,”12 “crimes against the state,”13 “acts of capture the fact that, by including treason and brib- great injury to the community,”14 “great offences,”15 ery, the new Constitution would be able to reach the “treachery,”16 “deviat[ion] from . . . duty,”17 “a viola- most grave presidential abuses.23 tion of duty,”18 and a willful “abuse [of] trust.”19 In the remarks that followed, Iredell did nothing to Although the delegates to the Constitutional clarify this basic issue. According to the Carolinian, if Convention had, on Madison’s objection, rejected the president is “a villain, and wilfully abuse his trust,” George Mason’s proposed standard of “maladminis- then impeachment is appropriate. But he made no tration,” the secrecy of the Convention’s proceedings attempt to provide a comprehensive account of what meant that this was not known to the delegates in the would constitute such an abuse. Rather, in no partic- state ratifying conventions. At least some of them ular order, he gave examples of offenses for which a seemed to have believed that “high crimes and misde- president could be impeached as taking a bribe, acting meanors” was equivalent to Mason’s rejected formula- from “some corrupt motive or other,” and providing tion. And it is easy to see why; in William Blackstone’s the Senate with inadequate or incorrect informa- widely read and authoritative Commentaries on the tion, resulting in the adoption of measures “injuri- Laws of England, the “first and principal” example ous” to the country.24 That Iredell did not mean his

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few comments to be taken as a definitive account is knew of the Hastings impeachment is evident from evident from his earlier admission that determining Mason’s complaint that the grounds for impeach- what would constitute grounds for impeachment is ment should not be limited to treason and brib- “not easy to describe.”25 ery alone: “Treason as defined in the Constitution The imprecision surrounding the phrase “high will not reach many great and dangerous offenses. crimes and misdemeanors” in the Convention and the Hastings is not guilty of Treason.”29 follow‑on debates in the state ratifying conventions is The charges leveled at the former governor were not especially surprising; this phrase had its source in certainly serious: corruption, abuse of office, and the over four centuries of British parliamentary practice, creation of a despotic form of rule over India. But, during which its meaning was no more specific. Ever according to Burke, who led the impeachment effort, since the 14th century, “high crimes and misdemean- the charges did not principally involve violations of ors” had included not only criminal conduct but also English or Indian law. Rather, Hastings was being a broad array of charges involving corruption, misuse impeached because he had used his discretionary of funds, and abuse of authority. More specifically, authority as governor in a manner that ran afoul of English officials had been impeached for the follow- his more fundamental duty to act in accord with just ing “high crimes and misdemeanors” (among others): and right rule. As Burke argued in his opening speech providing offices to unfit individuals, commencing on Hastings to the House of Lords in 1788, the “high but not prosecuting legal suits, failing to repair the crimes and misdemeanors” with which the former office of Ordnance despite the availability of appro- governor was charged rested “not upon the niceties priated funds, thwarting Parliament’s order to store of narrow jurisprudence, but upon the enlarged and arms and ammunition in storehouses, causing an ille- solid principles of state morality.”30 gal arrest, negligently preparing for an invasion, and misapplying appropriated funds.26 In his discussion of the history of impeachments in England, consti- Constitutional Guidance: Powers and tutional scholar Raoul Berger discerned seven basic Duties categories of “high crimes and misdemeanors”: mis- application of funds, abuse of official power, neglect Given this history, it is hardly surprising that scholars of duty, encroachments on Parliament’s powers, cor- and politicians continue to disagree about the mean- ruption, betrayal of trust, and giving pernicious advice ing of the phrase “high crimes and misdemeanors” as to the crown.27 it was written into the Constitution of 1787. At best Although impeachments had become increas- one is left with a few broad, albeit important, prin- ingly rare in Britain in the century before the drafting ciples. First, consonant with the separation-of-pow- of the US Constitution, ironically the most famous ers principle, the standard for impeachment was not impeachment proceeding in British history had been so low as to encourage Congress to make impeach- underway in London for more than a year when the ment a routine means for checking the president. delegates to the Constitutional Convention gathered Second, “high crimes and misdemeanors” included in Philadelphia in the summer of 1787. In April 1786, offenses that were not, strictly speaking, illegal. British statesman and party leader Edmund Burke Third, “high crimes and misdemeanors” were gen- had presented to the House of Commons nearly erally associated with violations of a public trust two dozen “Articles of Charge of High Crimes and and, in the major impeachment case of the time, Misdemeanors” against Warren Hastings, the for- involved actions that in some fashion undermined mer governor of India.28 In May 1787, on the basis or ran contrary to the fundamental norms of sound of a slimmed‑down version of those charges, the rule. But what history does not provide is a coherent, House of Commons voted to impeach Hastings for code‑like catalogue of what constitutes “high crimes “high crimes and misdemeanors.” That the delegates and misdemeanors.”

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For British constitutional practice, Edmund Burke responsibilities or duties (that is, “he shall” recom- believed that a broad statement of principle was suf- mend measures, receive ambassadors, faithfully exe- ficient to identify offenses worthy of impeachment. cute the laws, etc.).33 For American constitutional practice, however, one By dividing the president’s authorities along these resting on a written text, identifying such offenses is lines, the architects of the Constitution were essen- far more problematic. A written standard that is too tially copying the format employed by the New York specific may not reach serious situations unforeseen Constitution of 1777, the constitution that had cre- when the Constitution was drafted. On the other ated the most effective of the Revolutionary War hand, a standard that is too vague is open to misuse by governors and one with which they were intimately a partisan majority in Congress. We believe that the familiar. In this constitution the list of the governor’s Constitution itself contains the key to both under- constitutional authorities, comparable to what would standing the grounds for a president’s impeachment later appear in the US Constitution, was explicitly and tying those grounds to more precise infractions. divided between, first, a set of powers (“he shall That key is the distinction between powers and duties have power”) and, second, a list of duties (“it shall that lies at the heart of the structure and content of be the duty of the governor”).34 Finally, Section 4 of Article II on the presidency. Article II of the US Constitution completes this theme of powers and duties by spelling out those crimes (“Treason” and “Bribery”) that would clearly violate the president’s oath as well as those other We believe that the activities (“high Crimes and Misdemeanors”) that, while perhaps not criminal, may nevertheless violate Constitution itself the president’s constitutional duties.35 So just as Section 1 of Article II begins with power contains the key to and ends with duty, Article II as a whole begins with the vesting of power and duty and ends in effect both understanding the with the divesting of these as a consequence of the violation of duty. Note also that in its provisions grounds for a president’s governing presidential succession and disability, Article II, Section 1 stipulates that in the case of impeachment and tying the president’s “inability to discharge the Powers and Duties of the said Office, the same [powers and those grounds to more duties] shall devolve on the Vice President.”36 Thus, we may say that the faithful execution of the office of precise infractions. the president, sworn to in the oath of office, is equiv- alent to faithfully discharging the office’s powers and duties. Section 1 of Article II begins by vesting “the exec- Despite the modern tendency to refer to the pres- utive Power” in the president; it ends by imposing on ident’s various constitutional authorities as simply him, through the oath of office, the overarching duty “powers,” both historically and etymologically a gov- “to faithfully execute the Office of President” and ernmental office is more directly associated with duty “to the best of [his] Ability, preserve, protect and than with power. Indeed, the English word “office” defend the Constitution.”31 Section 2 consists of comes from the Latin word for duty, officium. As the a list of specific powers (commander in chief, the great constitutional and presidential scholar Edward pardoning power, the authority to make appoint- Corwin noted some decades ago, “Etymologically, ments, etc.).32 Section 3 sets out several specific an ‘office’ is an officium, a duty; and an ‘officer’ was

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simply one whom the King had charged with a duty.”37 the Constitution singles out the president by assign- At its core, then, the presidential office is best under- ing him two unique law-enforcement responsibilities. stood as centered on a set of specific responsibilities Only he takes an oath to “preserve, protect and defend and broader duties to faithfully execute the office and the Constitution,”40 and only he is explicitly enjoined defend the underlying constitutional order. The logic to “take Care that the Laws be faithfully executed,”41 of Article II is that the president’s powers do not exist a duty described by Madison in 1793 as nothing less in isolation but are bounded by his duties. than “the essence of the executive authority.”42 It may It necessarily follows that a president may not truly be said, then, that the Constitution imposes on employ his powers in a way that subverts his con- the president a higher standard than that imposed on stitutional duties. For example, although Article II, any other constitutional officer, a more emphatic and Section 2 gives a president what appears to be an comprehensive obligation to uphold and enforce the unlimited power to grant pardons (other than in cases nation’s legal and constitutional order. A president of impeachments), he cannot use that power in a who fails to fulfill the high duties of his office forfeits manner that violates his specific responsibility to his right to possess it. “take Care that the Laws be faithfully executed.”38 British parliamentary practice, records from the Accordingly, a president who dangles a pardon in American founding, and the history of impeach- front of an individual in an effort to frustrate a legal ments under the US Constitution all support the investigation or prosecution or who pardons those linkage between “high crimes and misdemeanors” who have committed crimes in which he himself and the duties of constitutional office. We have was involved would be in violation of his already seen that “neglect of duty” was one of the law-enforcement duty and therefore subject to broad categories of offenses that led to British par- impeachment and removal. liamentary impeachments in the centuries before Indeed, this was precisely Madison’s response at the writing of the US Constitution. The Earl of the Virginia ratifying convention to Mason’s com- Oxford, for example, was charged by Parliament in plaint that the president might use his pardoning 1701 for “violation of his duty and trust” by using power “before indictment, or conviction . . . [to] his access to the king as a member of his Privy stop inquiry and prevent detection” of wrongdoing. Council to secure royal rents and revenues for his If the president used his pardoning power to “shel- own use.43 ter” a confederate, Madison countered, Congress Indeed, the very first standard for impeachment could “impeach him . . . [and] remove him if found adopted by the delegates at the Constitutional Con- guilty.”39 Similarly, it might be argued that a president vention was “mal-practice or neglect of duty.” This violates his obligation to enforce the laws if he know- was approved on June 2, just a few days into the ingly asserts claims of executive privilege to delay or deliberations.44 Seven weeks later, on July 20, the obstruct lawful proceedings, even though the privi- delegates reaffirmed the earlier decision by a vote lege itself may be perfectly legitimate when employed of 8–2.45 Then, six days later they again endorsed in other circumstances (such as to protect national the “mal-practice or neglect of duty” standard.46 security or internal executive branch deliberations). During the Convention’s final month, through the A president cannot, in short, use a legitimate power work of two committees and brief floor debate on for an illegitimate end. He cannot employ his discre- September 8 ( just a week before the Conven- tionary powers in a way that violates the duties that tion adjourned), the new language “Treason, Brib- define his office. ery, or other high Crimes and Misdemeanors” was Thus, the true test of presidential performance is embraced.47 Although more specific and concrete than whether the occupant faithfully discharges the duties the language it replaced, the new wording essentially assigned to his office. Although every officer of the incorporated the “neglect of duty” standard through government has a responsibility to follow the law, the precedent of British parliamentary practice.

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Or so it was thought by many of the delegates functions.” The impeachment power of the House to the state ratifying conventions who spoke on was “intended to reach a broad variety of conduct by impeachment. In the Virginia convention, for exam- officers that is both serious and incompatible with ple, Patrick Henry, the leader of the opponents of the duties of the office.” Reflecting on the precedents the Constitution, praised British practice because to date, it concluded that “the American impeach- “impeachment follows quickly a violation of duty.” ment cases demonstrate a common theme useful Appearing to assume that the same standard was for- in determining whether grounds for impeachment mally incorporated in the new Constitution, Henry exist—that the grounds are derived from understand- worried that in practice the new Congress would lack ing the nature, functions and duties of the office.”53 the knowledge or will to impeach culpable officials.48 In neighboring North Carolina, Federalist leader Iredell explained that an officer would be punished Must Impeachable Acts Involve Abuse of through impeachment and removal if he “deviate[d] Official Powers? Historical Precedents from his duty” or, what would appear to amount to the same thing, if he “willfully abuse[d] his trust.”49 This linkage of “high crimes and misdemeanors” to In the South Carolina convention leading Federal- the duties of office is entirely consistent with famed ists used similar language. Edward Rutledge, signer of 19th-century jurist Joseph Story’s extended discus- the Declaration of Independence and brother of the sion of impeachment in his Commentaries on the Con- framer John Rutledge, argued that a president could stitution of the United States, published in 1833. The be impeached and removed if he “abused . . . [his] impeachment jurisdiction of the House and Senate, trust.”50 His ally, Pinckney, held that the House of wrote Story, “is to be exercised over offences, which Representatives would “impeach those who . . . betray are committed by public men in violation of their pub- their public trust.”51 This was the same language, lic trust and duties.”54 Not amenable to precise legal noted above, that Hamilton used in The Federalist to definition, such offenses “must be examined upon describe the kind of behavior subject to the impeach- very broad and comprehensive principles of public ment remedy: “the abuse or violation of some pub- policy and duty.”55 Story also referred to impeachable lic trust.”52 At the very least, a constitutional officer’s offenses as “a breach of duty” and as “acting grossly “public trust” includes the faithful and effective per- contrary to the duties of . . . office.”56 formance of the formal duties of his office. Anticipating by a century and a half the chief In the two centuries since the Constitution was issue in debate over President Bill Clinton, Story written, there have been 16 impeachments voted by asked whether “under the constitution, any acts the House of Representatives. The first was Blount are impeachable, except such, as are committed in 1797, and the most recent was of federal judge under colour of office.”57 Here Story provides a Walter Nixon in 1989. Of the other 14, 12 were of fed- summary of the arguments presented in the first eral judges, one of a cabinet member (Secretary of Senate impeachment trial, that of Blount in 1799. War William Belknap in 1876), and one of a presi- Those who urged Blount’s conviction “pressed with dent (Andrew Johnson in 1868). In 1974 the staff of great earnestness, that there is not a syllable in the the House Judiciary Committee reviewed the basis of constitution, which confines impeachments to offi- previous House impeachments (13 to that time) in a cial acts, and it is against the plainest dictates of com- report that analyzed the “Constitutional Grounds for mon sense, that such restraint should be imposed Presidential Impeachment.” Its summary of impeach- upon it.” Blount’s defenders argued to the contrary ment practice in the United States concluded that a “that the power of impeachment was strictly con- common allegation was that “the officer has violated fined to civil officers of the United States, and this his duties or his oath or seriously undermined pub- necessarily implied, that it must be limited to mal- lic confidence in his ability to perform his official conduct in office.”58 Story declined “to express any

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opinion . . . as to which [of these] is the true exposi- conduct has been inconsistent with his public duty, tion of the constitution.” This was a matter on which renders him unworthy of a further continuance of his the Senate had not definitively ruled, having ended present trust in this body, and amounts to a high mis- its proceedings against Blount with the determina- demeanor.”63 In the meantime Blount had fled from tion that senators were not “civil officers” and there- the capital, refusing to attend his own impeachment fore not subject to impeachment.59 trial. The Senate, not waiting for the outcome of the A more detailed review of the Blount impeach- trial itself and relying on its independent constitu- ment suggests that a stronger case can be made tional authority to discipline its members, expelled that both branches of Congress did in fact deter- Blount by a vote of 25–1 for “having been guilty of a mine at this early date that impeachable acts need high misdemeanor entirely inconsistent with his pub- not involve abuse of official powers. In the early lic trust and duty as a Senator.”64 It is noteworthy summer of 1797 it became known to President John that in expelling Blount through a proceeding con- Adams that Blount, contrary to national policy, had stitutionally distinct from the impeachment process, been conspiring with British authorities to promote the Senate categorized his offense as a “high misde- a military expedition against the Spanish colonies meanor,” thereby saying, in effect, that it also met the of Florida and Louisiana. Blount expected to ben- standard for impeachment. efit financially if this effort succeeded. The princi- It was not until a year and a half later that pal evidence against Blount was a letter he wrote to Blount’s formal impeachment trial began in the the official who served as the federal representative Senate. In their written response to the House’s arti- to the Creek and Cherokee nations, a communica- cles of impeachment, Blount’s attorneys argued, tion designed to influence the Indians to support the among other points, that “Blount had not been British interests. When this letter and other docu- charged with any crime or misdemeanor in the exe- ments came into Adams’ hands, he sent them to the cution of his office.”65 Later on the Senate floor one House of Representatives and Senate. After two days of Blount’s attorneys maintained that “no crime or of debate the House voted unanimously to impeach misdemeanor had been charged against Blount in Blount on July 7. connection with his senatorial duties.”66 In the final As Eleanore Bushnell notes in her history of fed- address in the trial, Congressman Robert Goodloe eral impeachment trials, one of the issues debated Harper, one of the House managers (who served in the House was whether “an officeholder could as the prosecutors in the Senate trial), gave the fol- properly be impeached for conduct not directly con- lowing answer to the contention that impeachment nected with his office.”60 The unanimous support for extended only to the abuse of official powers: Blount’s impeachment suggests that the House sup- ported the position that an official “to be found guilty, Suppose a judge of the United States to commit theft need not have committed the offense while perform- or perjury; would the learned counsel say that he ing official duties.”61 Six months later the House for- shall not be impeached for it? If so, he must remain mally adopted five articles of impeachment against in office with all his infamy. . . . It seems to me, on Blount. The first, which was the most comprehensive, the contrary, that the power of impeachment has charged Blount with actions “contrary to the duty of two objects: first, to remove persons whose miscon- his trust and station as a Senator of the United States, duct may have rendered them unworthy of retaining in violation of the obligations of neutrality, and their offices; and secondly, to punish those offenses against the laws of the United States and the peace of a mere political nature, which though not suscep- and interests thereof.”62 tible of that exact definition whereby they might be While Blount’s impeachment was first being brought within the sphere of ordinary tribunals, are debated in the House, a special investigating com- yet very dangerous to the public.67 mittee in the Senate concluded “that Mr. Blount’s

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Shortly thereafter, the Senate voted 14–11 that it impeachable offenses; or (3) that though they tech- lacked jurisdiction because senators were not “civil nically met the standard for impeachment, they did officers,” as that term was used in the Article II, not seem serious enough to warrant the punishment Section 4 impeachment clause of the Constitution.68 of removal from office. Despite the Senate’s failure to vote on the articles The impeachment of federal judge Robert W. of impeachment, it seems clear from the public Archbald less than a decade later again raised the record—including the Senate’s earlier expulsion issue of the relationship of impeachable offenses to vote—that both branches believed that impeachable official misconduct. By a vote of 223–1, the House offenses were not limited to the misuse of office or impeached Archbald in July 1912 for various actions the abuse of official powers. If federal officials, in he took while serving on United States Commerce the words of Harper, engaged in “misconduct” that Court, the federal court that heard all appeals from “rendered them unworthy of retaining their offices,” rulings of the Interstate Commerce Commission, and then the House and Senate were empowered to in his previous capacity as a federal district judge. The remove them. most damaging charges, and the ones that led to con- Blount’s was the first, but not the last, impeach- viction in the Senate, focused on Archbald’s efforts ment and trial in which one of the key issues was to benefit financially by trading on his influence as a whether impeachable offenses extended beyond the federal judge with coal and railroad interests. specific misuse of public office. In December 1904 the Like Swayne’s attorneys before them, Archbald’s House of Representatives impeached federal judge counsel argued that the accusations, even if true, did Charles Swayne for “(1) filing false expense claims, not demonstrate abuse of official powers and there- (2) accepting use of a private railroad car, (3) failing fore did not rise to the constitutional standard for to reside in his district, and (4) imposing unlawful impeachment. None of the charges, insisted one of sentences for contempt of court.”69 Swayne’s attor- Archbald’s attorneys at the Senate trial, “relates to neys responded in part that even if the first three anything that has been done in the performance of of these charges were true, they “did not consti- the duties of the office which Judge Archbald holds.”72 tute impeachable offenses,” for these “were not offi- As related by Bushnell, House Manager Henry Clay- cial acts and so could not make the judge a subject ton “insisted that the offenses with which Judge of impeachment.”70 At the conclusion of the trial in Archbald had been charged need not have been com- the Senate, Swayne’s attorney “restated the defense mitted in office. He produced an analogy, made famil- position that to be impeachable the acts complained iar in various forms in earlier impeachment trials: of must be crimes and must have been committed in ‘Suppose a judge were to commit highway robbery the accused’s official capacity.”71 and be put in the penitentiary, would you hold that he Unlike Blount, Swayne was, however, charged could not be impeached upon the ground that it was with offenses at least related to his official responsi- not done in his official capacity?’”73 bilities: The expense account was to reimburse offi- The Senate convicted Archbald by overwhelm- cial travel by federal judges, the acceptance of free ing majorities on four of the articles relating to his travel was deemed inappropriate because the rail- actions while serving on the Commerce Court and by road company was likely to have business before the just over the two-thirds required on a “catch-all” arti- judge’s court, and the failure to reside in the judicial cle that described a pattern of misconduct through- district was a direct violation of the requirements out his federal judicial career. He was acquitted on six of federal law. In the end large majorities of sena- charges relating to his previous service on the district tors voted to acquit Swayne of all the charges against court. One of the senators who voted consistently him. We do not know whether the senators believed against conviction filed a statement after the trial (1) that the charges had not been proved; (2) that was completed explaining his view that “misconduct though proved, they did not meet the standard of as a product of office had to be proved and . . . that

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Archbald had not been shown to have misbehaved in That Judge Harry E. Claiborne, having been nom- his judicial capacity.”74 Given the overwhelming vote inated by the President of the United States, con- for conviction, Bushnell concludes that “the thrust of firmed by the Senate of the United States, and while the trial sustains the argument that it is not essential serving as a judge of the United States District Court in an impeachment procedure to demonstrate official, for the District of Nevada, was and is guilty of mis- as distinct from general, bad performance.”75 behavior and of misdemeanors in office in a manner Two subsequent impeachments and convictions and form as follows: of federal judges present even clearer evidence of Judge Harry E. Claiborne took the oath for the Congress acting on an understanding of “high crimes office of judge of the United States and is required and misdemeanors” broader than abuse of official to discharge and perform all the duties incumbent powers. In 1936 the House impeached federal judge on him and to uphold and obey the Constitution and Halsted L. Ritter by a vote of 181–146. Although most laws of the United States. of the seven articles of impeachment concerned offi- Judge Harry E. Claiborne, by virtue of his office, cial misconduct, two charged that Ritter had evaded is required to uphold the integrity of the judiciary federal income taxes in both 1929 and 1930. These and to perform the duties of his office impartially. charges, however, played little role in the Senate trial. Judge Harry E. Claiborne, by willfully and In the end the Senate voted 36–48 and 46–37 for con- knowingly falsifying his income on his Federal tax viction on the two income tax charges. Although the returns for 1979 and 1980, has betrayed the trust votes on these and the other specific charges fell of the people of the United States and reduced below the two-thirds necessary for conviction, the confidence in the integrity and impartiality of catchall seventh article of impeachment narrowly the judiciary, thereby bringing disrepute on the passed by the requisite ratio, and Ritter was removed Federal courts and the administration of justice by from office. Here a majority of both branches the courts. (though not two-thirds of the Senate) voted that Wherefore, Judge Harry E. Claiborne was and income tax evasion—not in itself an abuse of official is guilty of misbehavior and was and is guilty of mis- powers—met the constitutional standard of “high demeanors and, by such conduct, warrants impeach- crimes and misdemeanors.” ment and trial and removal from office.76 Half a century later income tax evasion was the central issue in the impeachment, conviction, and Recalling similar defenses presented in the past, removal from office of Federal District Judge Harry E. Oscar Goodman, Claiborne’s lawyer, argued that Claiborne. In 1984 Claiborne was convicted in federal his client “had not been accused of anything relat- court of two counts of failing to report over $100,000 ing to discharge of his office. . . . The accusations of taxable income in 1979 and 1980. He was fined against the judge . . . were based on alleged miscon- $10,000 and sentenced to two years in federal prison. duct, private in nature, not on official misconduct”77 Despite numerous calls for his resignation, Claiborne (an argument remarkably similar to that advanced by refused to give up his federal position and salary President Clinton’s attorneys). For a federal judge even while serving his prison sentence. In July 1986, to be impeached, Goodman contended before the 406 members of the House of Representatives unan- Senate Impeachment Trial Committee, his mis- imously voted to impeach Claiborne. The first two behavior must be related to “his official function articles of impeachment charged Claiborne with fail- as a judge.”78 In response, “Paul Sarbanes (Demo- ing “to report substantial income” on his federal tax crat, Maryland) . . . asked whether Goodman meant returns in 1979 and 1980. The third article recounted that, had the judge ‘committed murder or rape, the judge’s conviction for these federal offenses and and not in doing his official duties, that that is not his concurrent sentences to two years in prison. The an impeachable offense?’ ‘That is my position,’ fourth and final article read in full as follows: Goodman replied.”79 The Senate was not persuaded

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by this defense: It voted 87–10 and 90–7 for con- Story himself was reluctant to express a final opin- viction on the two counts of income tax evasion ion as to whether impeachment reached only malcon- and 89–8 for betraying “the trust of the people of duct in office. No doubt this was partly because the the United States” and “bringing disrepute on the Senate had left this issue unresolved when it dis- Federal courts.”80 missed the articles of impeachment against Blount Finally, three years after Claiborne’s removal, the on the grounds that senators were not “civil officers” House and Senate impeached and convicted two under the Constitution. Story was not one to pre- more federal district judges: Alcee L. Hastings and judge a question that the Constitution had left in the Walter L. Nixon Jr. In both cases the crime of perjury hands of another body. was central to the accusations. In 1988 the House of Moreover, Story may well have believed that there Representatives by a vote of 413–3 adopted 17 articles was no general rule that could be laid down to dis- of impeachment against Hastings. The first of these tinguish “private” misbehavior that truly merited charged Hastings with conspiring to obtain a bribe impeachment from that which did not. In each case to reduce the sentences of two men convicted in his the House and Senate would have to judge whether court. Most of the rest accused him of lying and sub- the particular misdeeds at issue were of such a mitting false evidence at his 1983 trial for bribery, nature as to call into question the wisdom of allow- conspiracy, and obstruction of justice (for all of which ing the miscreant to remain entrusted with his pow- the jury acquitted him). In October 1989 the Senate ers. Story might even have worried that allowing convicted Hastings of eight of the charges by the req- impeachment for private misdeeds created some- uisite two-thirds vote. It is important to note that thing of a constitutional Pandora’s box. Yet, the his- although Hastings’s perjury definitely stemmed from tory of impeachment proceedings in this country has an abuse of judicial office, both the House and Senate shown that although the House and Senate have con- treated the perjury as a separate offense sufficient by sistently affirmed the idea that private misconduct itself to warrant removal from office. by civil officials might be cause for impeachment Nixon’s impeachment focused entirely on the and removal, doing so has not resulted in sweep- offense of perjury. In 1986 Nixon had been convicted ing impeachment inquests into the private lives and and sentenced to five years in prison for lying to a deeds of judicial and executive officials. grand jury about his efforts to get favorable treatment Indeed, throughout hundreds of years of English from a district attorney for an associate’s son charged parliamentary practice, the phrase “high crimes and with drug smuggling. The drug smuggling case was not misdemeanors” had encompassed a broader range of before Nixon’s court, and Nixon’s intercession was not wrongdoing than attacks on the constitutional system apparently illegal, however inappropriate. Like Clai- or threats to public order. Moreover, as we have seen, borne before him, Nixon refused to resign from the Madison, whose objection to the term “maladminis- bench or to forgo his salary even after his incarceration. tration” led to its replacement by “high crimes and In May 1989 the House impeached Nixon by the unan- misdemeanors,” maintained just two years later on imous vote of 417–0, approving two articles charging the floor of the House of Representatives that a pres- perjury before a grand jury and one article accus- ident could properly be impeached and convicted for ing him of bringing discredit on the federal judiciary. “the wanton removal of meritorious officers.”81 Our In November the Senate convicted Nixon on the two point here is not that Madison was right in this partic- perjury counts by votes of 89–8 and 78–19. ular interpretation but only that he clearly embraced a The record of American impeachments makes it broader view of impeachable offenses than the narrow clear that the House and Senate have both read “high grounds of illegality. And, indeed, most of those who crimes and misdemeanors” to include misbehav- spoke on impeachment in the state ratifying conven- ior in addition to that “committed under the colour tions, reviewed above, used language far broader than of office,” to use Story’s phrase. As we have seen, the narrow interpretations sometimes put forward.

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The Meaning of “High Crimes and standard, and a serious violation of that standard Misdemeanors” subjects all civil officers equally to impeachment and removal. It may well be asked, however, whether How best, then, to understand “high crimes and mis- the public trust and duties of every federal officer demeanors”? We believe that the history of British are identical. And if they are not identical, does this impeachments, the debates in the Constitutional Con- mean that some acts of misbehavior might constitute vention, the content and structure of Article II of the impeachable “high crimes and misdemeanors” for Constitution, the debates in the state ratifying con- one office but not for another? ventions, and the history of impeachments under the It is useful here to distinguish implicit from explicit Constitution all support the following interpretation: duties. All executive and judicial officials, for exam- Federal officials commit high crimes and misdemeanors ple, are required by the Constitution itself to take an when they seriously abuse or violate their public trust oath “to support this Constitution.”83 Here no dis- and duties. It is the abuse of public trust and duties tinction is made between such officers as judges, that is the consistent theme throughout the words of ambassadors, and heads of the executive depart- the founders and the history of impeachments in the ments. This obligation to support the Constitution United States. This definition raises two important applies equally to all, and a serious abuse or violation issues. First, how do we identify the public trust and of this duty would subject all to impeachment and duties of a constitutional office? Second, how serious removal. Yet, there may well be other explicit duties must the violation be to warrant impeachment and governing proper conduct in office under federal law removal from office? or regulations that do vary by office. Some officials, for example, may be subject to stricter conflict-of- interest rules than others. As a consequence, it may happen that of two officials who engage in similar Federal officials commit financial relationships with private parties, only one might seriously violate his duty by so doing. high crimes and Of course, identifying an implicit public trust or duty is more difficult. Yet, American impeachment misdemeanors when history offers many such examples. As noted ear- lier, the House of Representatives impeached Blount they seriously abuse or for actions “contrary to the duty of his trust and station as a Senator of the United States,” and the violate their public trust Senate expelled him for “conduct [that] has been inconsistent with his public duty, [and that] ren- and duties. ders him unworthy of a further continuance of his present public trust in this body.”84 As a senator, Blount had a broad obligation—implicit in his high Just as the Constitution applies the same impeach- office—to respect the government’s policies toward ment standard to all civil officers of the federal foreign nations; his actions violated that obligation government—“The President, Vice President and all and thus justified his removal from Congress. civil Officers of the United States, shall be removed A century later, when the House impeached from Office on Impeachment for, and Conviction of, Swayne in part for accepting use of a private railroad Treason, Bribery, or other high Crimes and Misde- car, it did so not because he broke a federal law but meanors”82—so each civil officer is equally obliged because the lawmakers believed it was grossly inap- to act in accordance with his public trust and duties. propriate for a judge to receive such a gratuity from In this respect, all civil officers are held to the same a company that would likely have business before his

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court. Similarly, Archbald was impeached, convicted, What, then, of the implicit duties of office, of and removed from office for inappropriate financial the public trust in some broader sense? It has been investments with companies also likely to have busi- argued, for example, that given the nature of the judi- ness before his court—again, actions that were not cial office, a convicted perjurer or tax evader could apparently illegal. In announcing the impeachment hardly preside over civil or criminal trials with the to the House, the chairman of the Judiciary Commit- authority, respect, and public confidence required for tee charged Archbald with “prostitut[ing] his high such a job. The president’s job, by contrast, is so much office for personal profit . . . degrad[ing] his office . . more diverse—conducting foreign policy, attending destroy[ing] the confidence of the public in his judi- to the nation’s security needs, fashioning legislation, cial integrity . . . [and] forfeit[ing] the condition upon managing the bureaucracy, and the like—that misbe- which he holds his commission.”85 havior of the sort that would disqualify a judge can be Finally, Ritter’s impeachment in 1936 involved tolerated in a president. accusations of inappropriate, but not technically ille- A moment’s reflection demonstrates the unper- gal, judicial behavior in addition to the charges of suasiveness of this argument. Can it seriously be evading his federal income taxes that were discussed maintained that if the president of the United States above. In the Swayne, Archbald, and Ritter impeach- is known to be a perjurer, a tax cheat, or otherwise ments the House of Representatives clearly operated the perpetrator of felonies that this would have no on the view that federal judges had obligations beyond effect on his credibility with foreign heads of state, the formal requirements of law and that a serious vio- on the respect and morale of those who serve under lation of these implicit obligations might well war- the commander in chief, or on the broader moral tone rant impeachment and removal from office (with the of his administration? And what of law enforcement Senate concurring by two-thirds votes in two of the itself, an essential element of the executive power? If three cases). the attorney general of the United States, who serves What, then, of the difference between the offices directly under the president, were guilty of perjury, of federal judge and president? Are the public trust obstruction of justice, and witness tampering but and duties of a judge, whether explicit or implicit, was not fired by the president, would the House and so different from those of the president that actions Senate have any trouble determining that these such as tax evasion, perjury, or grossly inappropri- offenses were so inconsistent with the duties and ate, if technically legal, behavior that might prop- public trust of the office that they would in fact con- erly lead to the ouster of a judge ought not to lead to stitute “high crimes and misdemeanors”? Yet the the impeachment and removal of a president? This attorney general is, in a constitutional sense, the mere distinction can hardly be defended on the grounds extension of the president. of the explicit constitutional duties of office. As we It is the president in whom the Constitution vests have noted, judges, like legislators and executive “the executive Power.” And it is the president who officials, are required to take an oath “to support this is constitutionally obligated to “take Care that the Constitution.” Only the president is required to take Laws be faithfully executed.”88 Are we prepared to the more emphatic and comprehensive oath “to the argue that the Constitution grants presidents more best of my Ability, preserve, protect and defend the leeway for criminal misbehavior than it grants to Constitution of the United States.”86 And only the both federal judges and attorneys general, despite president is constitutionally enjoined to “take Care the fact that this same Constitution imposes that the Laws be faithfully executed.”87 Thus, there a more emphatic, direct, and comprehensive is no basis in our fundamental law for arguing that law-enforcement obligation on the president than on judges have a higher duty to obey and enforce the these, or any other, federal officials? law than do presidents. If anything, the Constitution It is useful here to reflect on why there may well tilts in the other direction. be a connection between the so-called “private

13 WHAT DOES “HIGH CRIMES AND MISDEMEANORS” MEAN? BESSETTE AND SCHMITT

misbehavior” of officials and their public responsibil- constitutional obligations—whether he seriously ities. If a public official engaged in seriously immoral violated his public trust and duties. or criminal behavior on his own time, this would Indeed, there may well be times when a president naturally raise questions as to whether this individual actually has an obligation to violate a specific fed- could be trusted with the powers and duties associ- eral law. Abraham Lincoln, for example, maintained ated with public office. It follows that private behav- that a president may break the law if necessary to ior may be of legitimate public concern. A public “preserve, protect and defend the Constitution.”90 official guilty of serious personal misbehavior seems Defending his suspension of the privilege of the writ to demonstrate character defects that might carry of habeas corpus during the first weeks and months over into the conduct of public office. of the Civil War, Lincoln asked, “are all the laws, Indeed, it would be odd if a system of government but one, to go unexecuted, and the government itself could not remove an official who had clearly shown go to pieces, lest that one be violated? Even in such himself willing to violate the law in one area but had a case, would not the official oath be broken, if the not, as yet, abused his official powers. All offices are government should be overthrown, when it was in some sense a matter of power entrusted. If an believed that disregarding the single law, would officeholder shows himself to be unworthy of a high tend to preserve it?”91 As we noted earlier in this trust—because he cannot or will not conform his analysis, the true test of presidential performance behavior to the law and common morality—then it is how well the occupant of the office discharges follows that removal should be an option as a matter the duties assigned to it, with the overarching duty of constitutional self-protection. being that enjoined by the oath of office. The impeachment provisions of the US Constitu- tion impose on the House of Representatives and the Impeachment, the Law, and Senate the high responsibility of determining whether Constitutional Duty a president’s violation of his public trust and duties is so egregious as to justify removal from office. This Because impeachment proceedings are typically involves a political (not legal) judgment of the highest guided by members and staff who are lawyers and order. It calls forth from our elected representatives the impeachment process itself echoes a judicial a seriousness of purpose, a dedication to constitu- proceeding, there is a natural tendency for those tional principle, and a willingness to disregard parti- involved in the process to stress those instances of san or private political advantage that is uncommon presidential misbehavior that seem most closely to in American politics. The framers of the US Constitu- violate criminal or civil statutes. However, the issue tion, realists all, believed both that political virtue was for impeachment should be whether the president not so universal as to make the impeachment check has violated his duty to his office and the constitu- unnecessary, nor was it so rare as to render its exer- tional system. Getting into a debate about whether cise by the two branches of Congress unsafe to the the president has or has not committed the specific constitutional balance of powers. federal offense misses the larger point that every Indeed, it is, properly employed, the ultimate con- president is under a positive obligation not just to stitutional safeguard. By judging the actions of high avoid acts that meet the technical definitions of fed- public officials against the standard of their consti- eral crimes but to see to it in a positive way—“to take tutional duties and broad public responsibilities, Care”89—that the whole body of laws is faithfully the impeachment process serves three great ends. It executed and obeyed. The issue in an impeachment removes from office those who have forfeited their proceeding ought not to be whether the president right to serve, protecting the public from further technically committed a federal offense but whether depredations; it induces others to act in accord with by his behavior he turned his back on his high their high public responsibilities; and it provides

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the citizenry with a vital lesson in the principles of political deliberation, the constitutional powers of constitutional democracy. the presidency, and criminal justice.

Gary J. Schmitt is a resident scholar in strategic stud- About the Authors ies and American institutions at the American Enter- prise Institute, where he studies national security and Joseph M. Bessette is the Alice Tweed Tuohy longer-term strategic issues affecting America’s secu- Professor of Government and Ethics at Claremont rity at home and abroad. In addition, Schmitt writes McKenna College, where he has been teaching since on issues pertaining to American political institutions, 1990. He is an expert on the American founding, the Constitution, and civic life.

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Notes

1. US Const. art. 2, § 4. 2. Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed. (New Haven, CT: Yale University Press, 1966), 2:550. 3. Farrand, The Records of the Federal Convention of 1787, 2:550. 4. Jacob E. Cooke, ed., The Federalist (Middletown, CT: Wesleyan University Press, 1961), 439. 5. Jonathan Elliot, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2nd ed., vol. 4 (Philadelphia, PA: J. B. Lippincott, 1901), 281. 6. Elliot, Debates in the Several State Conventions, vol. 3, 201. 7. Elliot, Debates in the Several State Conventions, vol. 2, 169. 8. Elliot, Debates in the Several State Conventions, vol. 4, 32. 9. Elliot, Debates in the Several State Conventions, vol. 3, 397. 10. Elliot, Debates in the Several State Conventions, vol. 3, 17. 11. Elliot, Debates in the Several State Conventions, vol. 4, 117. 12. Elliot, Debates in the Several State Conventions, vol. 4, 48. 13. Elliot, Debates in the Several State Conventions, vol. 4, 48. 14. Elliot, Debates in the Several State Conventions, vol. 4, 113. 15. Elliot, Debates in the Several State Conventions, vol. 4, 34. 16. Elliot, Debates in the Several State Conventions, vol. 4, 263. 17. Elliot, Debates in the Several State Conventions, vol. 4, 32. 18. Elliot, Debates in the Several State Conventions, vol. 3, 398. 19. Elliot, Debates in the Several State Conventions, vol. 4, 126. 20. William Blackstone, Commentaries on the Laws of England of Public Wrongs (Boston, MA: Beacon Press, 1962), 123. It can be argued that the views of those who ratified the Constitution in the state conventions is a more authoritative indication of the original meaning of the document than the views of those who wrote the document at the Constitutional Convention, for it was the act of rat- ification that gave the proposal of the framers legal force. See especially Charles A. Lofgren, “The Original Understanding of Original Intent?,” Constitutional Commentary 5, no. 1 (Winter 1988): 77–113. Lofgren quotes, for example, the following statement of Madison’s in 1796: “If we were to look, therefore, for the meaning of the instrument [the Constitution] beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.” By Madison’s own principles, then, if the ratifiers of the Constitution understood “high crimes and misdemeanors” more broadly than he himself did at Philadelphia; it is the view of the ratifiers that would be controlling. 21. Joseph Gales, comp., The Debates and Proceedings in the Congress of the United States, vol. 1 (Washington, DC: Gales and Seaton, 1834), 517. 22. Gales, Debates and Proceedings, vol. 1, 480. 23. Elliot, Debates in the Several State Conventions, vol. 4, 113. 24. Elliot, Debates in the Several State Conventions, vol. 4, 126. Iredell says here, “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.” As is clear from the context, the point of the “only” is to distinguish willful and corrupt misconduct from honest mistakes of judgment, for which a president “ought not to be punished.” 25. Elliot, Debates in the Several State Conventions, vol. 4, 113. 26. Raoul Berger, Impeachment: The Constitutional Problems (New York: Bantam Books, 1974), 71–72. 27. Berger, Impeachment, 73–75.

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28. Richard Bourke, The Political Life of Edmund Burke (Princeton, NJ: Princeton University Press, 2015), 628; and Committee of the House of Commons, Minutes of the Evidence Taken Before a Committee of the House of Commons (London: J. Debrett, 1786), 3. 29. Farrand, The Records of the Federal Convention of 1787, 2:550. 30. Edmund Burke, The Writings and Speeches of Edmund Burke in Twelve Volumes: Volume IX, Articles of Charge Against Warren Hastings, Esq.; Speeches in the Impeachment (Boston, MA: Little Brown & Co., 1901), 333. 31. US Const. art. II, § 1. 32. US Const. art. II, § 2. 33. US Const. art. II, § 3. 34. NY Const. of 1777, art. XVIII and art. XIX. 35. US Const. art. 2, § 4. 36. US Const. art. 2, § 1. 37. Edward S. Corwin, Presidential Power and the Constitution, ed. Richard Loss (Ithaca, NY: Cornell University Press, 1976), 72. See also Edward S. Corwin, The President: Office and Powers, 1787–1957, 4th ed. (New York: New York University Press, 1957), 70. 38. US Const. art. II, § 2. 39. Elliott, Debates in the Several State Conventions, vol. 3, 496–98. 40. US Const. art. II, § 1. 41. US Const. art. II, § 2. 42. Alexander Hamilton and James Madison, The Letters of Pacificus and Helvidius (1845) (Washington, DC: J. and G. S. Gideon, 1945; repr., Delmar, NY: Scholars’ Facsimiles & Reprints, 1976), 61. 43. Staff of the Impeachment Inquiry,Constitutional Grounds for Presidential Impeachment (Washington, DC: US Government Printing Office, 1974), 4–7. 44. Farrand, The Records of the Federal Convention of 1787, 1:88. 45. Farrand, The Records of the Federal Convention of 1787, 2:69. 46. Farrand, The Records of the Federal Convention of 1787, 2:121. 47. US Const. art. 2, § 4. 48. Elliot, Debates in the Several State Conventions, vol. 3, 398. 49. Elliot, Debates in the Several State Conventions, vol. 4, 32, 126. 50. Elliot, Debates in the Several State Conventions, vol. 4, 276. 51. Elliot, Debates in the Several State Conventions, vol. 4, 281. 52. Cooke, The Federalist, 439. 53. Staff of the Impeachment Inquiry, Constitutional Grounds for Presidential Impeachment, 17–22. 54. Joseph Story, Commentaries on the Constitution of the United States, vol. 2 (Boston, MA: Hilliard, Gray, 1833; repr., New York: Da Capo Press Reprint Edition, 1970), 217. 55. Story, Commentaries on the Constitution, vol. 2, 234. 56. Story, Commentaries on the Constitution, vol. 2, 262, 268. 57. Story, Commentaries on the Constitution, vol. 2, 269. 58. Story, Commentaries on the Constitution, vol. 2, 272. 59. Story, Commentaries on the Constitution, vol. 2, 273. 60. Eleanore Bushnell, Crimes, Follies, and Misfortunes: The Federal Impeachment Trials (Urbana-Champaign, IL: University of Illinois Press, 1992), 28. 61. Bushnell, Crimes, Follies, and Misfortunes, 28. 62. Bushnell, Crimes, Follies, and Misfortunes, 30. 63. Bushnell, Crimes, Follies, and Misfortunes, 29. 64. Bushnell, Crimes, Follies, and Misfortunes, 29. 65. Bushnell, Crimes, Follies, and Misfortunes, 32.

17 WHAT DOES “HIGH CRIMES AND MISDEMEANORS” MEAN? BESSETTE AND SCHMITT

66. Bushnell, Crimes, Follies, and Misfortunes, 33. 67. Bushnell, Crimes, Follies, and Misfortunes, 35. 68. US Const. art. 2, § 4. 69. Bushnell, Crimes, Follies, and Misfortunes, 193. 70. Bushnell, Crimes, Follies, and Misfortunes, 201, 205. 71. Bushnell, Crimes, Follies, and Misfortunes, 208. 72. Bushnell, Crimes, Follies, and Misfortunes, 235. 73. Bushnell, Crimes, Follies, and Misfortunes, 236. 74. Bushnell, Crimes, Follies, and Misfortunes, 239. 75. Bushnell, Crimes, Follies, and Misfortunes, 240. 76. US Senate, “The Impeachment Trial of Harry E. Claiborne (1986) U.S. District Judge, Nevada,” https://www.senate.gov/ artandhistory/history/common/briefing/Impeachment_Claiborne.htm. 77. Bushnell, Crimes, Follies, and Misfortunes, 296. 78. Bushnell, Crimes, Follies, and Misfortunes, 296. 79. Bushnell, Crimes, Follies, and Misfortunes, 296. 80. US Senate, “The Impeachment Trial of Harry E. Claiborne (1986) U.S. District Judge, Nevada.” 81. Gales, Debates and Proceedings, vol. 1, 517. 82. US Const. art. 2, § 4. 83. US Const. art. 6, § 3. 84. Bushnell, Crimes, Follies, and Misfortunes, 29. 85. Bushnell, Crimes, Follies, and Misfortunes, 219. 86. US Const. art. II, § 1. 87. US Const. art. II, § 2. 88. US Const. art. II, § 2. 89. US Const. art. II, § 2. 90. US Const. art. II, § 1. 91. Abraham Lincoln, “Message to Congress in Special Session,” in The Collected Works of Abraham Lincoln, vol. 4, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 430. (Emphasis in the original.) Lincoln went on to maintain that he had not in fact violated any law, although by his own argument he would have been justified in so doing.

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