By Jonathan R. Wetherbee
In the wake of President Trump’s dealings with the Ukraine, the US again has to grapple with the ambiguity of the Constitution. Among questions like “What does it mean to respect a religion?” and “When exactly does the government abridge the privileges and immunities of a US citizen?”, Congress must now define what are “high Crimes and Misdemeanors.”
Legal scholars would say that the phrase covers either (1) an unfitness for the held office, either mental or moral unfitness, or (2) a substantial abuse of public power.
One facet of the phrase was under particular scrutiny throughout the debate on Trump’s impeachment. Must President Trump’s actions have violated an actual crime or misdemeanor in order for him to be guilty of “high Crimes and Misdemeanors?”
There’s an overwhelming consensus among legal scholars (including the Republican’s own legal expert), that no actual crime in the US Code needs to be pointed to for there to be a ‘high crime and misdemeanor.’ That said, there’s at least one legal scholar who would argue otherwise.
Here, we’re going to explore the arguments for and against the necessity of an actual criminal violation in order for there to have been an impeachable offense. We’ll break these arguments down by the Constitution’s text, the history of its passage, the history of impeachment in the US, and some hypotheticals.
The Constitution says that an office holder may be removed from office upon impeachment (by the House) and conviction (by the Senate) for “Treason, Bribery, or other high Crimes or Misdemeanors.”
First off, the text says the exact words “Crimes” and “Misdemeanors”. You don’t need to be a lawyer to know what a crime is, and most of us probably have an idea that misdemeanors are a subcategory of relatively less offensive crimes. But what if the definitions of those words have changed over time? (Misdemeanors used to be a much less technical term that referred to broad misconduct.)
The phrase comes right after Treason and Bribery, which have always been crimes. When the Constitution refers to “other high Crimes and Misdemeanors,” isn’t the criminality of Treason and Bribery relevant? Doesn’t it suggest that actual crimes need to be identified?
Later in the Constitution, it says that “Trial[s] of Crimes, except in Cases of Impeachment, shall be by jury…” This is further textual evidence that the impeachment/removal process is in league with other criminal cases. Why else would impeachment come up when talking about criminal trials?
But if we look at other parts of the Constitution, we see indication that high Crimes and Misdemeanors doesn’t need to be accompanied by the violation of an actual crime. For one, the penalty for impeachment is removal from office. Criminal laws have more process baked into them because they are taking away someone’s personal freedom, as is the case for imprisonment. Mere removal from office, instead of imprisonment, would suggest this is an entirely different thing.
Second, the Constitution (after explaining that the penalty for impeachment and conviction is removal from office) says that the offender is still liable for actual crimes committed “according to the Law.” This further drives a wedge between impeachment / removal and committing a crime.
The text of the Constitution isn’t crystal clear, so we’ll have to look through other areas of Constitutional interpretation.
Legal scholars like to look at what the ‘law professors’ would have been teaching about the phrase “high Crimes and Misdemeanors” around the time that the Constitution was written. In 1769, Oxford law professor Sir William Blackstone wrote that impeachment / removal is a prosecution for “known and established laws.” But was that the case because English written legal precedent stretched back to the 14th century and had a large body of law to pull from? In 1777, another Oxford law professor would write that impeachment / removal could be for the very noncriminal acts of “introduce[ing] arbitrary power” or “acting grossly contrary to the duty” of the office.
In the debates over the Constitution, we also see a mix of evidence. At the Constitutional Convention of 1787, James Madison would argue that the words “mal-administration” would be far too vague to be an impeachable offense. The words ‘high Crimes and Misdemeanors’ was offered to give more definition to impeachable offenses but to broaden them beyond simply treason and bribery. Why would the founders substitute one phrase for being too vague with another phrase that’s also vague? In Federalist Paper #65, Alexander Hamilton argues that the Senate must don a “judicial character” in impeachment proceedings. That judicial character could mean that the Senate should be impartial and contemplative, but it could also mean that they are presiding over a case and have to ‘judge’ whether a law has been broken.
But these records are also full of evidence to counter the arguments from the above paragraph. The founders actually landed on ‘high Crimes and Misdemeanors’ after deciding that ‘other crimes’ and ‘high misdemeanors’ was too specific. So, maybe they actually wanted the phrase to be more vague! But not too vague! And back to Federalist Paper #65, Hamilton says that impeachable offenses stem from “the abuse or violation of some public trust.” There again, we see a broad definition for the phrase.
Up to this point, there’s been arguments both for and against the necessity of an actual criminal violation in order for their to be a ‘high Crime or Misdemeanor’. You might be split on that question at this point, but from here onward that the evidence starts to favor the argument that an actual crime need NOT be violated in order for there to be an impeachable offense.
In the debates over our Constitution, the delegates of the Constitutional Convention of 1787 would have been very familiar with one impeachment trial in particular. That trial was the impeachment of Warren Hastings, who had previously served as the British governor of the Bengali region of the Indian subcontinent. This was the most high-profile impeachment proceeding before that of Richard Nixon’s in the 1970s. He was on trial for a host of things from disregarding instructions, mismanagement, deceitful dealings with the region’s native population, and misconduct in local wars. None of those items constituted a violation of an existing crime, and many of them were pretty vague. Further, the impeachment articles for Hastings was titled “High Crimes and Misdemeanors.” So, we can infer that the founding delegates would have understood that the phrase ‘high crimes and misdemeanors’ wouldn’t have required an actual crime and was applicable for more vague concepts like the ‘violation of a public trust.’
When the Constitutional Convention delegates returned to their home states to ensure passage of the new Constitution, we start to see how the framers of the Constitution thought of impeachment trials. James Iredell drew a distinction between criminal trials and impeachment trials, which supports the idea that an actual crime need not be litigated in an impeachment trial in the Senate. James Madison used the example of a President grossly misusing parliamentary procedure to pass an unpopular treaty as an impeachable offense, which also implied the absence of a relevant criminal statute.
When we look at other examples of how impeachment has been applied, there’s not much to support the requirement of a violation of a criminal statute in order for a public officer to be convicted for “high Crimes and Misdemeanors.”
In 1804, federal judge John Pickering was impeached and convicted / removed by the Senate for mental deterioration, a decidedly non-criminal offense. In 1936, Judge Halsted Ritter was convicted and removed for “bringing the judiciary into disrepute,” a charge that didn’t cite a criminal statute. So, the precedent of impeachment proceedings supports the notion that no criminal violation need be identified to remove a public officer from their post.
Nikolas Bowie, the Harvard professor who lays out the case for the requirement of a statutory crime or statutory misdemeanor, points out that we have crimes, “such as perjury or obstruction of justice,” that are “broadly defined” enough to be applicable to Presidential impeachment proceedings and that requiring a statute wouldn’t make impeachments any less frequent.
The argument is similar to, “We have so many laws on the books; if you can’t find a law, it shouldn’t be an impeachable offense!” But if you look at some hypotheticals, you can see why the framers wouldn’t have made statutory criminal violations necessary for ‘high crimes and misdemeanors.’
All you have to do is find a Presidential power and turn the Abuse of Power dial up to 11. What if the President decided to live in and work from Vancouver? What if the President decided to pardon every convicted criminal that shared their first and last name? What if the President had expressed skepticism with Roman Catholic judges and then never nominated a Roman Catholic person to serve as a judge for any of the federal courts? You can think of any number of scenarios that fall under ‘abuse of power’ that Congress shouldn’t have to write laws for.
There’s some great arguments that I left on the table. Prof. Bowie pulls in the ‘spirit’ of the Constitution and its prohibitions against ex post facto laws and bills of attainder and how they are evidence that high crimes and misdemeanors must be connected to existing criminal laws. There are also strong counter arguments that pull in the Constitution’s checks and balances between the three branches. For the sake of brevity, we’ll leave those arguments in law school journals.
‘High Crimes and Misdemeanors,’ like the Constitution, is vague. The strength of the United States as an enterprise never came from some grand plan that the Founders created that would sustain its mission for centuries. The strength of the Constitution is that it’s a guide stone, not a rule book.
Where you land on this question depends on which items of evidence you gravitate to. I, personally, believe that the hypothetical abuses of power, the impeachment of Warren Hastings, the examples of when the Senate has removed public officers for non-criminal offenses, and the framers’ drive to include an impeachable offense that was sufficiently broad are determinative here. I, along with an overwhelming number of legal scholars, don’t believe that an actual, citable criminal statute is necessary for an impeachable offense. But if you index more heavily on the literal text of the phrase or you believe that the legislature should ferret out and legislate any potential abuse of power that a public officer might commit, than you might come out on the other side of this one.