700 Years in the Making: Why ‘High Crimes and Misdemeanors’ Is Hard to Peg

October 18, 2019 Updated: October 28, 2019

News Analysis

Constitutional law scholars concede that they disagree on what the term “high crimes and misdemeanors” in the Constitution encompasses. This long-debated term has recently reemerged as a hot topic in the public consciousness as House Democrats push forward in their impeachment inquiry against President Donald Trump.

The inquiry, which began on Sept. 24, is centered on allegations made by an anonymous whistleblower about the president’s conduct during a phone call with Ukrainian President Volodymyr Zelensky in July. Democratic lawmakers alleged the president leveraged his office and withheld U.S. aid to Ukraine to obtain “dirt” on a political opponent—2020 Democratic candidate Joe Biden. Trump has denied these allegations.

Under the Constitution, the removal of a president can be justified if he or she commits any “treason, bribery, or other high crimes and misdemeanors,” however, the last part of the article—”high crimes and misdemeanors”—is not explicitly defined.

Former U.S. President Gerald Ford famously said in 1970, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” In one sense, Ford is correct as the Constitution gave the House the sole authority to impeach, according to the Constitutional Rights Foundation. But the foundation also argued that Ford was also wrong, as the framers of the constitution did not intend to give the House the absolute power to remove federal officers—except in extreme circumstances.

The impeachment of federal officers was one of the checks introduced into the Constitution to allow the different branches of government to check the power of other branches and to ensure that the federal government would not become too powerful. The term “high crimes and misdemeanors” comes from the British Parliament and dates back to the 1300s.

According to the foundation, offenses such as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, and not spending money allocated by Parliament were considered “high crimes and misdemeanors” under the British interpretation.

“The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve,” the foundation said.

Not Limited to Crimes

Many constitutional lawyers share the foundation’s view that “high crimes and misdemeanors” is not limited to criminal violations.

Professor Robert G. Natelson, a law professor who heads the Independence Institute’s Constitutional Studies Center, told The Epoch Times that while the term “high crimes” could be understood as felonies, the term “high misdemeanors” is complex as the term’s application is subject to controversy.

To Natelson “high misdemeanors” means a breach of fiduciary duty or trust such as disloyalty, negligence and neglect, dishonesty, financial self-dealing, or failure to provide adequate financial records.

He stressed the importance of exploring the British meaning of the term to interpret it. He said the British Parliament had provided the founders with ample instances of grounds for impeachment.

“We know what those grounds are because we have hundreds of years of experience with impeachment proceedings,” Natelson said. “When the founders wrote that language, they had examples of impeachment proceedings in the British Parliament dating back to the 1300s. We have a lot of evidence as to what impeachment meant.”

Natelson argued in his article published in The Federalist Society Review (pdf) last year that the drafting and adoption of the U.S. Constitution were influenced by the founder’s core political principle that the government is a fiduciary to its people. He said that there were numerous instances where members of the founding generation in the 18th century connected impeachment to breaches of fiduciary duties.

Professor Kevin Gutzman, an American constitutional scholar from Western Connecticut State University, shared a similar view, arguing that the British interpretation of the term “high crimes and misdemeanors” included conduct related to breach of trust such as abuse of office.

“They assume that the use of technical English legal terms was intended to carry the legal meaning from England and in England, high crimes and misdemeanors were abuses of office, were constitutional violations, [and] were not necessarily indictable crimes,” Gutzman said, citing the classic 17th-century English impeachment case of Thomas Wentworth, Earl of Strafford.

That case raised questions on what to do with an executive officer who had committed serious misconduct but had not committed treason. It prompted the framers of the U.S. Constitution to consider adding a “safety valve” into the impeachment clause to address such a scenario. At the Constitutional Convention, George Mason proposed adding in the now-familiar “other high crimes [and] misdemeanors” to catch the many “great and dangerous offenses” that are not treason, but would warrant an impeachment, according to Craig Lerner in an article in The University of Chicago Law Review (pdf).

Likewise, Professor Robert William Bennett, a Nathaniel L. Nathanson Professor of Law at Northwestern and a scholar in constitutional law, said he believes the “‘crimes and misdemeanors’ reference is to misbehavior, more generally—serious misbehavior by those high officials and that can be something that isn’t criminal at all.” He gave an example of how this would apply.

“So, repeatedly lying to the American public about things where there’s not a national security justification for lying could be a high crime and misdemeanor, even though you couldn’t be indicted for it in a criminal court if you didn’t hold the office,” Bennett said.

A Political Process

Meanwhile, Professor Devin Schindler, assistant dean at the Western Michigan University Cooley Law School, has taken Ford’s view that the interpretation of the term “high crimes and misdemeanors” is up to the House and Senate.

“Impeachment is a political process, not a legal process,” Schindler said. “In a 1993 case dealing with the impeachment of a federal judge, Nixon v United States, the Court said that the Senate’s ‘sole’ power to try impeachments gave it broad discretion to establish the rules, free from Court oversight.”

“Although legal scholars have debated the meaning of the phrase for years, the absence of any judicial oversight over the process combined with the House and Senate’s broad authority means that the definition of the term ‘high crime and misdemeanor’ will be left to the political branches and not the Court,” he added.

Schindler’s view is echoed by his colleague, Professor Brendan Beery, who also said the Constitution leaves the question of interpreting the term to Congress.

“One hopes, however, that members of Congress would strive to achieve a satisfactory understanding of the term ‘high crimes and misdemeanors,'” said Beery, also a professor at the Western Michigan Cooley Law School.

“That term, as a historical matter, was thought to encompass not literal breaches of the criminal code, but rather breaches of the public trust—crimes like treason and bribery, which reflect disloyalty to country or insidious corruption,” he continued.

“In the end, what level of public corruption or betrayal of country rises to the level of a high crime is a question that must be answered by the House, which decides whether to charge high crimes, and the Senate, which must decide whether to convict and remove.”

This article was updated with further information.

Follow Janita on Twitter: @janitakan
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