Meaning of High Crimes and Misdemeanors

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 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.

The U.S. Constitution

Alan Dershowitz will tell you in his defense of the President that we can ignore all this.  Instead, he will cite arguments made and rejected by the founding fathers during the Constitutional Convention of 1787, the works of pundits and hacks as well as politically motivated arguments made during past impeachments as if they were all precedent.  Professor Dershowitz is an expert in criminal law.  Criminal law relies on precedent.  Constitutional law does not.  The U.S. Constitution is to be interpreted by its original intent.  In other words what the exact words meant to the founding fathers and not what subsequent pundits would like them to mean. 

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.  For instance 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 such as the Mueller report, which is authorized to only 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.  Obstruction only makes it harder.  Congress as a whole 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 bribery 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 believed 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.”

We should note that the Dershowitz defense stands in stark contrast the Attorney General, William Barr’s defense of the President.  Dershowitz contends we can only impeachment for an actual crime. Barr has a much simpler and technically more accurate legal theory on impeachment.

Criminal Justice is his domain, Impeachment is the sole domain of Congress and ne’er the twain shall meet. 

Essentially he is saying Congress can’t investigate criminal matters because that’s his domain and Congress can’t ask the Court (a part of the criminal justice system) to rule on impeachment matters.  This is the legal theory he used to justify obstruction such as advising White House officials not to testify or release documents in potentially criminal matters.  Dershowitz on the other hand will claim that you can only impeach for a crime.  The President’s defenders can’t have it both ways.