Academic journal article AEI Paper & Studies

What Does "High Crimes and Misdemeanors" Mean?

Academic journal article AEI Paper & Studies

What Does "High Crimes and Misdemeanors" Mean?

Article excerpt

In upcoming weeks there will be much debate and discussion about the possible grounds for impeaching a president and, in particular, whether the president has committed "high crimes and misdemeanors." Despite the range of arguments already voiced, we would like to add to that debate by reissuing an analysis we did in late 1998. The report then was tied to the impeachment of President Bill Clinton, so we have removed the sections and sentences tied to that matter. But the heart of our earlier analysis, offered below, is still pertinent to today's proceedings insofar as it reflects our best effort to come to a judgment about the meaning of "high crimes and misdemeanors" through an analysis of the text of the Constitution, the debates within the Constitutional Convention, the ratification debate, and the history of impeachments in Britain and, more particularly, the United States.

The Origin and Imprecision of the Phrase "High Crimes and Misdemeanors"

The current discussion over what constitutes impeachable offenses stems from the fact that the Constitution itself is silent on the meaning of "high crimes and misdemeanors" and the record from the Constitutional Convention is ambiguous. Historians, law professors, and political scientists reading the same original materials reach quite different conclusions. Our particular contribution, as will become evident below, is to find more guidance on this matter than others have in the Constitution itself, the records from the state ratifying conventions, and the history of impeachments in the United States under the constitutional provisions.

How and why was the phrase "other high crimes and misdemeanors" added to the Constitution? Here the record is relatively clear. As the Constitutional Convention was drawing to a close in September 1787, Virginia delegate George Mason objected to the fact that the only grounds listed in the draft constitution for impeaching a president at that point were "treason" and "bribery." This left any number of "great and dangerous offenses," including efforts "to subvert the Constitution," uncovered. It was, Mason contended, incumbent on the members of the Convention "to extend the power of impeachment" to reach these other possible offenses. Thus, he suggested adding "maladministration." (2)

To this, however, fellow Virginian James Madison objected: "Maladministration" was too "vague a term." It was a license for the Senate to remove presidents at will, potentially rendering the president a mere servant of the Congress. In response to Madison's objection, Mason suggested that the phrase "other high crimes & misdemeanors against the State" be added instead. Apparently without debate, the delegates accepted Mason's new language by a vote of 8-3. A few days later the language was finalized after the Committee of Style dropped the phrase "against the State." (3) Based on this brief record, all one can say for sure is that those who wrote the Constitution wanted a president to be impeachable for offenses or misbehavior in addition to treason and bribery but not for all acts that might be viewed as bad administration of the office.

Unfortunately, the record of the debates that followed in the state ratifying conventions provides little additional insight into the precise meaning of the phrase "high crimes and misdemeanors." For one thing, impeachment was not a matter that generated much discussion, and what discussion there was focused on how impeachment could be squared with separation of powers. When the substantive grounds for impeachment were mentioned at all, they were most often described simply as some unspecified violation of the public trust. In this regard, Alexander Hamilton was right in step with his contemporaries when, writing in The Federalist, he stated that impeachment is for "the misconduct of public men . . . from the abuse or violation of some public trust." (4)

Other prominent founders were equally imprecise. …

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