High crimes and misdemeanors

What are we talking here, “treason” and “jaywalking?”  Or did our founding fathers have something different in mind?  Well, Benjamin Franklin asserted that the power of impeachment and removal was necessary for those times when the Executive “rendered himself obnoxious.”  Does that remind us of anyone we know?  For most of us, we see these words and think that some kind of crime must be alleged before an impeachment trial can begin.  Sure, we call it a trial, but Congress is not a court of law.  It is a trial in the sense that there are facts and circumstances to be weighed, whether we are weighing criminality or obnoxiousness.  The legal definition of “misdemeanor” is;

Offenses lower than felonies and generally those punishable by fine, penalty, Forfeiture, or imprisonment other than in a penitentiary. Under federal law, and most state laws, any offense other than a felony is classified as a misdemeanor. Certain states also have various classes of misdemeanors (e.g., Class A, B, etc.). 

But remember this definition was written long after the U.S. Constitution described an impeachable offense this way;

The charge of high crimes and misdemeanors covers allegations of misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, unbecoming conduct, and refusal to obey a lawful order. Offenses by officials also include ordinary crimes, but perhaps with different standards of proof and punishment than for nonofficials, on the grounds that more is expected of officials by their oaths of office.

 

Webster’s dictionary updates definitions every year based on cultural nuances that work their way into the language.  Our Constitution is however not updated to preserve the original intent.  The original meaning of the word “misdemeanor” was much closer to “misdeed” irrespective of whether such misdeed was in violation of a law.  Only since modern times do we jump to the conclusion that it must mean a crime.  According to Wikipedia, the phrase “high crimes and misdemeanor” dates back much further. The impeachment of the King’s Chancellor, Michael de la Pole, 1st Earl of Suffolk in 1386 was the first case to use this charge.  The 1450 impeachment of William de la Pole, 1st Duke of Suffolk, a descendant of Michael’s, was next to allege charges under this title. He was charged with using his influence to obstruct justice, cronyism, and wasting public money.  After the Restoration (1660) the scope of the charge grew to include negligence, and abuse of power or trust while in office. Charges in the impeachment of Edward Russell, 1st Earl of Orford in 1701 included many violations of trust and his position. In this case, he abused his position in the Privy Council to make profits for himself; as Treasurer of the Navy he embezzled funds; and as Admiral of the Fleet he got a commission for the pirate William Kidd.  The point is many of these offenses were not crimes in the traditional sense of the word, but focus instead on “allegations of misconduct peculiar to officials.”

Here’s where the modern American interpretation gets a little screwy.  Congress waits for a report from the judiciary, which is authorized only to put forth allegation of criminal violations.  By its very nature, a criminal investigation must prove the element of “intent”, making it a long and arduous task.  Congress has misinterpreted their solemn duty to impeach.  It’s their job to fire “obnoxious” officials, not to convict them and not to punish them.  Once fired the judiciary may then be called upon to convict and punish if the misconduct is also criminal. What is so “peculiar to officials” is that legal misconduct is often the most damaging to the public they serve.  Think of it this way; if you were an employer would you wait for an employee to commit a criminal act before considering his firing?  If you have a customer service representative who is insulting your customers, that’s not a crime but you will fire him anyway.  A President who insults our closest allies can do a lot more damage than one who solicits contributions or business favors in exchange for government posts or contracts.  Congress could impeach a President without having to prove he intended to insult your closest allies, because it’s their job to stop the bleeding not to assess the cause.  Congress can also impeach for taking bribes without showing intent for the same reason.  In the latter case, a criminal indictment might follow if the prosecutor can prove at least one of the contribution was received in exchange for the awarding of a contract.

Most in Congress, both Republicans and Democrats believe imposing stiff tariffs on our trading partners will harm the American economy and threaten a world-wide recession and few of them believe that Canadian trade poses a security threat to the U.S.  Of course the proof is in the pudding, we can’t prove this until it happens.  Nor can we prove the President’s motive for imposing such tariffs.  It’s not Congress’ job to prove anything; their job is to exercise their best judgment as to whether the President’s actions will likely cause great harm to the public or in Franklin’s words, if the President has “rendered himself obnoxious.”

Many will disagree with my interpretation, but even they will see its parity in our system of checks and balances.  It requires two-thirds of Congress to overturn a Presidential veto, but Congress has no acknowledged veto power over an executive action initiated by the President.  This is not as our President would say a “fair and reciprocal” exchange.  But language that is right in front of us, “misconduct peculiar to officials” surely gives Congress that veto power.  I chose this time to express my views because in recent weeks we have seen three such executive actions (perhaps the first of many such distractions from the ever tightening criminal probe) that are vehemently opposed by at least the two-thirds margin of the Senate that would be required to impeach the President.

The first is the mismanagement of immigration policy; the second is this continued escalation of a dangerous trade war; while the third is the threat to pull out of NATO.  Each of these may cause great harm to the country, but none can be prosecuted as a crime.  Yet each meets the criteria for an impeachable offense.  So from a practical standpoint the threat of impeachment with two-thirds support should deter President Trump from continuing any one of these policies, thus ending a crisis.  Gosh, I can’t keep up.  Even as I write this, Trump has called the E.U. our greatest foe and placed the blame for election interference on Americans.

As for the proof, well the proof is in the pudding.  In other words we will not know if this will work until we try it.

Congress, if you’re listening, “Please at least use the threat of impeachment”