The Scope of "High Crimes and Misdemeanors" after the Impeachment of President Clinton
Kinkopf, Neil, Law and Contemporary Problems
NEIL KINKOPF [*]
Constitutional theorists have begun focusing a great deal of attention on constitutionalism outside the judiciary.  As Professor Neal Katyal points out in his insightful paper, the impeachment and trial of President Clinton provide an outstanding opportunity to reflect upon the practice of constitutionalism out side the courts.  During these episodes, the House of Representatives and the Senate confronted numerous constitutional questions, but rarely resolved them on the basis of an identifiable construction of the Constitution's meaning.  There is, however, at least one important question of constitutional interpretation that the House of Representatives must be understood to have resolved: the scope of impeachable offenses.
The constitutional category of impeachable offenses comprises "Treason, Bribery or other high Crimes and Misdemeanors."  The concluding phrase, "other high Crimes and Misdemeanors," is indefinite. While the matter was pending in the House of Representatives, the phrase's meaning became the subject of frequent discussion and controversy. There is broad agreement among scholars, members of Congress, and other commentators that a necessary element of any high crime and misdemeanor is great injury directly to the constitutional system of government.  Controversy erupted over whether "high Crimes and Misdemeanors" includes an additional necessary element of an impeachable offense. The argument, based on a variety of sources, claims that the scope of impeachable offenses is further limited to official misconduct. Thus, impeachment is available only for serious public harm caused by a civil officer acting in an official capacity. Unofficial or private misconduct, it was argued, is beyond the scope of the impe achment power.
This argument was most prominently advanced by the 443 law professors who signed a letter addressed to then-Speaker of the House Newt Gingrich. The professors contended that the House should not impeach President Clinton, basing their argument primarily on the ground that a necessary element of a high crime and misdemeanor is the "grossly derelict exercise of official power."  The House, by necessary implication, rejected that construction when it adopted the article of impeachment charging that President Clinton committed perjury before the grand jury, a charge that did not involve official conduct. 
The Senate's acquittal casts some doubt on the House's judgment. Because the Senate deliberated in closed session, we do not know the actual basis of its action. It may have acquitted because unofficial misconduct cannot be a high crime or misdemeanor, or because the President's actions did not cause sufficiently grave harm to warrant impeachment, or because the charges were not proven. 
It is my contention that the House's construction is proper, notwithstanding the view of the law professors or the indeterminacy of the Senate's action. I agree with Professor Michael Gerhardt that the classic case for impeachment involves official misconduct,  and it is not surprising that most impeachments have been predicated upon misconduct involving the exercise of official power. Even though President Clinton's misconduct was not a proper basis for impeachment or conviction, his case demonstrates that it would be terribly unwise to understand official misconduct to be a necessary element of a high crime or misdemeanor.
As Professor Bloch describes the broad agreement of the scholars who testified before the House Subcommittee on the Constitution, "to be impeachable, the actions of the President must seriously undermine the government and compromise his ability to continue governing."  Yet, it is impossible to codify all conduct that might be so harmful. Conduct that is just as harmful to the public as treason or bribery, for example, would evade impeachability if that conduct failed to meet the technical, formal definitions of the codified offenses. …