High Crimes and Misdemeanors

"'High Crimes and Misdemeanors'":

Recovering the Intentions of the Founders

EXECUTIVE SUMMARY

The most important question in the constitutional process of impeachment is the meaning of "High Crimes and Misdemeanors" as that phrase was understood by those who framed and ratified the Constitution. The grant to the House of Representatives of "the sole power of impeachment" was not given without restraint. The words "High Crimes and Misdemeanors" were not mindlessly crafted or chosen because it was thought they would be open to endless manipulation. Rather, the phrase was a well received term of legal art, an expression chosen by the founders because they believed it was one of "those expressions that were most easy to be understood and least equivocal in their meaning."

What was clear to the founders has been to later generations a matter of some confusion, nowhere better expressed than by Gerald Ford when he insisted that "an impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history." This is simply wrong. To adopt such an understanding, as Joseph Story once said, would be to grant Congress an "arbitrary discretion" that would be "so incompatible with the genius of our institutions," that no one should ever "countenance so absolute a despotism of opinion and practice, which might make that a crime at one time, or in one person, which would be deemed innocent at another time." Impeachments are not to be carried out for any reason that may occur to the House of Representatives.

The use of the word "high" in "High Crimes and Misdemeanors" was used to emphasize that it was a crime or misdemeanor against the commonwealth. The objects of impeachment, Alexander Hamilton wrote, "are those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to the injuries done immediately to the society itself."

Because such political offences are of "so various and complex a character" they do not admit of a simple list. To determine if particular political abuses rise to the level of "High Crimes and Misdemeanors" recourse must be had to the great common law tradition which the founders understood to be "the great basis of our jurisprudence." In the view of such men as Story and John Marshall, the common law was an indispensable "guide, and check, and expositor in the administration of the rights, duties, and jurisdiction conferred by the Constitution and law." A survey of the common law authorities to whom the founders looked for guidance, such as Sir William Blackstone, indicates that such "crimes against public justice," as "obstructing the execution of lawful process" and "willful and corrupt perjury" would in all likelihood have been understood by the founders as constituting "High Crimes and Misdemeanors" as used in the Constitution.

Further, the record fails to support the claim that impeachable offences are limited to only those abuses that occur in the official exercise of executive power. As seen in the authorities, impeachable offences, in both English and American history, have been understood to extend to "personal misconduct," violation of . . . trust," and "immorality and imbecility," among other charges. Read More