House Speaker Kevin McCarthy has announced an impeachment inquiry into the conduct of President Joe Biden. “Impeachment,” of course, doesn't necessarily mean removal from office. Impeachment is the House of Representatives’ formal accusation, much like a criminal indictment. The Senate tries the case and decides whether to convict and remove.
Most prior impeachments have been dominated by quarrels about the conditions under which the Constitution allows impeachment. These quarrels may be one reason that the Senate has never convicted an impeached president.
In 2019, during hearings on the first impeachment of President Donald Trump, four expert witnesses testified on the meaning of the Constitution’s term, “high ... Misdemeanors.” Each of the four experts disagreed with the others. None of them made a wholly convincing case.
The research shows beyond serious doubt that in the first impeachment of President Trump, the House adopted an overly broad definition of “high misdemeanors.” In other words, the impeachment was illegitimate. The House arguably made the same mistake as well in the second impeachment of President Trump.
The British and the FramersUnderstanding the Constitution’s impeachment and removal procedure requires knowing some history.
The broad outlines of the procedure came from Great Britain. In Britain, impeachment was used to remove the ministers on whom the king or queen relied. Kings and queens couldn't themselves be impeached.
The House of Commons then transmitted its “articles of impeachment” to the House of Lords. The lords would try the accused. In some cases, trials continued for years. After the trial, the lords voted. They could convict, remove, and punish by a bare majority. There were no limits to possible punishment.
Some framers—such as Gouverneur Morris of Pennsylvania—initially opposed any presidential impeachment procedure. They thought that if the chief executive was to serve only a short term, the way to remove him was to defeat him for reelection. But other framers (including, eventually, Morris) recognized that there had to be some way to remove a criminal president before the end of his term.
The Constitution’s Impeachment RulesThe Constitution’s impeachment and trial procedure was much more restrictive than the British practice, specifically:
- The House of Representatives, unlike the British House of Commons, could impeach only for the commission of one of four itemized offenses;
- Only the president, vice president, and “civil Officers of the United States” could be impeached—not legislators or prior officials.
- The Senate, like the House of Lords, tried impeachments. But conviction in the Senate required a vote by “two thirds of the Members present”—not merely a majority of the members voting.
- Unlike in Britain, punishment was limited to removal from office and disqualification from future federal office.
“Bribery” meant accepting something of value for a political decision, even if the bribed person ultimately didn't deliver what was promised. “High Crimes” were felonies, punishable (in theory, if not always in practice) by death. Examples included treason, murder, rape, and arson.
The ControversyThe nature of a “high misdemeanor” was disputed during the first impeachment of President Trump, as it was disputed in prior presidential impeachments.
However, we now know the answer, because I unearthed it in my 2020 research. More on that in a moment.
There were several reasons why the experts were confused on the issue. One reason was that they relied too much on British impeachment precedents, without sufficiently taking account of the Constitution’s adoption of a much more restricted procedure. (I confess to making this mistake myself prior to my 2020 research.)
Additionally, most writers on the Constitution don't examine enough sources. In particular, few are familiar with the 18th-century jurisprudence and legal system relied on by the American Founders. Few ever examine a law book other than William Blackstone’s “Commentaries.”
The Meaning of 'High Misdemeanor'In 18th-century Anglo-American law, the word “misdemeanor” technically denoted any crime. A “high misdemeanor” and its synonyms (“misprision,” “great misdemeanor”) technically included both felonies and those serious crimes punishable by jail, steep fines, and other penalties short of death. In the more common usage adopted in the Constitution, however, those terms excluded capital felonies and denoted only very serious, but noncapital, crimes. Examples of high misdemeanors were attempted murder, receiving stolen goods, assault, and bribery.
Thus, the Constitution’s phrase “Treason, Bribery, or other high Crimes and Misdemeanors” lists one high crime (“Treason”), one high misdemeanor (“Bribery”), and then adds a catch-all phrase covering other crimes in those two general categories.
Lessons for the Biden ImpeachmentThose conducting the Biden impeachment must be careful not to overreach, as their predecessors did in the impeachments of President Trump. If investigators uncover clear evidence that President Biden accepted bribes in exchange for political favors, then they have a valid basis for impeachment.
But they shouldn't clutter the articles of impeachment with allegations of mere malpractice or malfeasance. For example, President Biden’s failure to enforce immigration laws is both inexcusable and in violation of his constitutional obligation to “take Care that the Laws be faithfully executed.” But it isn't impeachable.