What Does “High Crimes and Misdemeanors” Mean?

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

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