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….
Here’s where even Congress seems confused about its duty. The legal definition of “misdemeanor” states, “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.
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.” For clarification only they added “Offenses by officials also include ordinary crimes, but perhaps with different standards of proof and punishment than for non-officials, on the grounds that more is expected of officials by their oaths of office.” The framers recognized that the greatest dangers would come not from ordinary crimes but from misconduct peculiar to officials due to the extraordinary powers granted to office holders.
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 this modern interpretation gets a little screwy.
Congress is waiting 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? Say you have a customer service representative who is insulting your customers. Of course, that’s not a crime but you would 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 can and should impeach a President even without having to prove he intended to insult our 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 contributions was received in exchange for the awarding of a contract. (Bribery, no matter how obvious, is almost impossible to prove short of a confession or written agreement)
The Role of Congress
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, so 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.”
Rudy Giuliani tells us, “Trump didn’t do it, but even if he did, it’s not a crime, and even if it is an ordinary crime it’s not a crime for the President to do it.” This is all moot, the sole question and our sole concern is “will it harm the American public?” The first duty of Congress is to protect Americans from harm,
even those who are blind to the danger.
I’m sure the framers thought the potential threat of impeachment alone would keep the Executive branch in check. But they never envisioned a two-party system let alone one where one party would protect their own over the interests of the public they were elected to serve. I have watched in dismay as my own Republican Party abandoned its rich tradition to score points on some artificial scoreboard.
The party is pushing us ever closer to an inevitable crisis that will destroy the Party and further divide the nation. The irony is all the missed opportunities to change course. All it would have taken is a small group of influential Republicans to meet with President Trump (in secret) and tell him “Don’t do it”, don’t insult our closest allies, don’t start a trade war, don’t threaten to pull out of NATO or don’t criticize your own justice department. If you do we will bring impeachment to House floor ourselves. If you don’t, this meeting never happened.
Pulling troops from Syria and abandoning our partners and allies in the region while shutting down the government at home, pose even more serious threats to our security and economic prosperity. Yet Mueller’s report won’t address these or in fact, any of the growing list of “legal” transgressions that pose the greatest threats to the nation. Congress did not wait for the Special Prosecutor to begin the impeachment process of President Nixon. It is neither required nor prudent to wait for the Special Prosecutor’s report to begin impeachment.
So, let’s stop pussyfooting around and put this behind us, sooner rather than later.