The Real Meaning Of High Crimes and Misdemeanors: Impeaching Obama

We often tend to look at phrases through the lens of our own cultural and temporal predispositions. One experiment I tried recently was to ask various friends and acquaintances the meaning of the phrase “high crimes and misdemeanors”. While not scientific, over 90% believed the phrase to mean that some indictable crime must be committed. Begging indulgence, if I ventured a guess, it is that many readers believe this proposition to be true as I once did many years ago. You would be wrong, just as I was.

This assertion that a crime must be committed to meet the standard of a “high crime and misdemeanor” is demonstrably false. To prove this, we must remove our temporal predisposition and look at the historical context of the concept as pertains to the founding father’s understanding of the phrase. In doing so, it will become clear the recent allegations regarding the Sestak job offer and the general pattern of behavior of President Obama as a high official during the discharging of his duties in the executive branch provide plenty of fodder for the impeachment cannon. While an indictable offense often meets the criterion for a “high crime and misdemeanor”, it is not the case that is must. Even in the Sestak case, if criminal charges are not sought, it is still well within the definition as outlined below and if President Obama is implicated in any way with an offer of political position or prestige with or without accompanying compensation, if the offer is made in an effort to thwart the will of the voting public, the offense qualifies as impeachable.

As noted in the Constitutional Grounds For Presidential Impeachment, By the Impeachment Inquiry Staff, Committee on the Judiciary of the U.S. House of Representatives, Public Affairs Press, Washington, D.C. (emphasis mine):

…The Constitution provides that the President”… shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The framers could have written simply “or other crimes” – as indeed they did in the provision for extradition of criminal offenders from one state to another. They did not do that. If they had meant simply to denote seriousness, they could have done so directly. They did not do that either. They adopted instead a unique phrase used for centuries in English parliamentary impeachments, for the meaning of which one must look to history.

The origins and use of impeachment in England, the circumstances under which impeachment became a part of the American constitutional system, and the American experience with impeachment are the best available sources for developing an understanding of the function of impeachment and the circumstances in which it may become appropriate in relation to the presidency.

…At the time of the Constitutional Convention the phrase “high Crimes and Misdemeanors” had been in use for over 400 years in impeachment proceedings in Parliament. It first appears in 1386 in the impeachment of the King’s Chancellor, Michael de la Pole, Earl of Suffolk. Some of the charges may have involved common law offenses. Others plainly did not: de la Pole was charged with breaking a promise he made to the full Parliament to execute in connection with a parliamentary ordinance the advice of a committee of nine lords regarding the improvement of the estate of the King and the realm; “this was not done, and it was the fault of himself as he was then chief officer.” He was also charged with failing to expend a sum that Parliament had directed be used to ransom the town of Ghent, because of which “the said town was lost.”

The phrase does not reappear in impeachment proceedings until 1450. In that year articles of impeachment against William de la Pole, Duke of Suffolk (a descendant of Michael), charged him with several acts of high treason, but also with “high Crimes and Misdemeanors, ” including such various offenses as “advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of the laws,” “procuring offices for persons who were unfit, and unworthy of them. and “squandering away the public treasure.”

Impeachment was used frequently during the reigns of James I (1603-1625) and Charles I (1628-1648). During the period from 1620 to 1640 over 100 impeachments were voted by the House of Commons. Some of these impeachments charged high treason, as in the case of Strafford; others charged high crimes and misdemeanors. The latter included both statutory offenses, particularly with respect to the Crown monopolies, and non-statutory offenses. For example, Sir Henry Yelverton, the King’s Attorney General, was impeached in 1621 of high crimes and misdemeanors in that he failed to prosecute after commencing suits, and exercised authority before it was properly vested in him.

There were no impeachments during the Commonwealth (1649-1660). Following the end of the Commonwealth and the Restoration of Charles II (1660-1685) a more powerful Parliament expanded somewhat the scope of “high Crimes and Misdemeanors” by impeaching officers of the Crown for such things as negligent discharge of duties and improprieties in office.

The phrase “high Crimes and Misdemeanors” appears in nearly all of the comparatively few impeachments that occurred in the Eighteenth Century. Many of the charges involved abuse of official power or trust. For example, Edward, Earl of Oxford, was charged in 1701 with “violation of his duty and trust” in that, while a member of the King’s privy council, he took advantage of the ready access he had to the King to secure various royal rents and revenues for his own use, thereby greatly diminishing the revenues of the crown and subjecting the people of England to “grievous taxes.” Oxford was also charged with procuring a naval commission for William Kidd, “known to be a person of ill fame and reputation, ” and ordering him “to pursue the intended voyage, in which Kidd did commit diverse piracies . . . , being thereto encouraged through hopes of being protected by the high station and interest of Oxford, in violation of the law of nations, and the interruption and discouragement of the trade of England.”

The impeachment of Warren Hastings, first attempted in 1786 and concluded in 1795, is particularly important because contemporaneous with the American Convention debates. Hastings was the first Governor-General of India. The articles indicate that Hastings was being charged with high crimes and misdemeanors in the form of gross maladministration, corruption in office, and cruelty toward the people of India.

Two points emerge from the 400 years of English parliamentary experience with the phrase “high Crimea and Misdemeanors.” First, the particular allegations of misconduct alleged damage to the state in such forms as misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament’s prerogatives, corruption, and betrayal of trust. Second, the phrase “high Crimes and Misdemeanors” was confined to parliamentary impeachments; it had no roots in the ordinary criminal law, and the particular allegations of misconduct under that heading were not necessarily limited to common law or statutory derelictions or crimes.

…The debates on impeachment at the Constitutional Convention in Philadelphia focus principally on its applicability to the President. The framers sought to create a responsible though strong executive; they hoped, in the words of Elbridge Gerry of Massachusetts, that “the maxim would never be adopted here that the chief Magistrate could do no wrong. ” Impeachment was to be one of the central elements of executive responsibility in the framework of the new government as they conceived it.

The constitutional grounds for Impeachment of the President received little direct attention in the Convention; the phrase “other high Crimes and Misdemeanors” was ultimately added to “Treason” and “Bribery” with virtually no debate. There is evidence, however, that the framers were aware of the technical meaning the phrase had acquired in English impeachments.

Ratification by nine states was required to convert the Constitution from a proposed plan of government to the supreme law of the land. The public debates in the state ratifying conventions offer evidence of the contemporaneous understanding of the Constitution equally as compelling as the secret deliberations of the delegates in Philadelphia. That evidence, together with the evidence found in the debates during the First Congress on the power of the President to discharge an executive officer appointed with the advice and consent of the Senate, shows that the framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments.

…Among the weaknesses of the Articles of Confederation apparent to the delegates to the Constitutional Convention was that they provided for a purely legislative form of government whose ministers were subservient to Congress. One of the first decisions of the delegates was that their new plan should include a separate executive, judiciary, and legislature. However, the framers sought to avoid the creation of a too-powerful executive. The Revolution had been fought against the tyranny of a king and his council, and the framers sought to build in safeguards against executive abuse and usurpation of power. They explicity rejected a plural executive, despite arguments that they were creating “the foetus of monarchy,.because a single person would give the most responsibility to the office. For the same reason, they rejected proposals for a council of advice or privy council to the executive.

…Briefly, and late in the Convention, the framers addressed the question how to describe the grounds for impeachment consistent with its intended function. They did so only after the mode of the President’s election was settled in a way that did not make him tin the words of James Wilson) “the Minion of the Senate.”

The draft of the Constitution then before the Convention provided for his removal upon impeachment and conviction for “treason or bribery.” George Mason objected that these grounds were too limited:

Why is the provision restrained to Treason and Bribery only? Treason as defined in the Constitution will not reach many great and dangerous offenses. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend the power of impeachments.

Mason then moved to add the word “maladministration” to the other two grounds. Maladministration was a term in use in six of the thirteen state constitutions as a ground for impeachment, including Mason’s home state of Virginia.

When James Madison objected that “so vague a term will be equivalent to a tenure during pleasure of the Senate,” Mason withdrew “maladministration” and substituted “high crimes and misdemeanors agst the State, ” which was adopted eight states to three, apparently with no further debate.

That the framers were familiar with English parliamentary impeachment proceedings is clear. The impeachment of Warren Hastings, Governor-General of India, for high crimes and misdeameanors was voted just a few weeks before the beginning of the Constitutional Convention and George Mason referred to it in the debates. Hamilton, in the Federalist No. 65, referred to Great Britain as “the model from which [impeachment] has been borrowed.” Furthermore, the framers were well-educated men. Many were also lawyers. Of these, at least nine had studied law in England.

…The “technical meaning” referred to is the parliamentary use of the term high misdemeanor. Blackstone’s Commentaries on the Laws of England — a work cited by delegates in other portions of the Convention’s deliberations and which Madison later described (in the Virginia ratifying convention) as “a book which is in every man’s hand” — included “high misdemeanors” as one term for positive offenses “against the king and government.” The “first and principal” high misdemeanor, according to Blackstone, was “mal-administration of such high officers, as are in public trust and employment,” “usually punished by the method of parliamentary impeachment.”

…The phrase “high Crimes and Misdemeanors” may connote “criminality” to some. This likely is the predicate for some of the contentions that only an indictable crime can constitute impeachable conduct. Other advocates of an indictable-offense requirement would establish a criminal standard of impeachable conduct because that standard is definite, can be known in advance and reflects a contemporary legal view of what conduct should he punished. A requirement of criminality would require resort to familiar criminal laws and concepts to serve as standards in the impeachment process. Furthermore, this would pose problems concerning the applicability of standards of proof and the like pertaining to the trial of crimes.

The central issue raised by these concerns is whether requiring an indictable offense as an essential element of impeachable conduct is consistent with the purposes and intent of the framers in establishing the impeachment power and in setting a constitutional standard for the exercise of that power. This issue must he considered in light of the historical evidence of the framers’ intent. It is also useful to consider whether the purposes of impeachment and criminal law are such that indictable offenses can, consistent with the Constitution, be an essential element of grounds for impeachment. The impeachment of a President must occur only for reasons at least as pressing as those needs of government that give rise to the creation of criminal offenses. But this does not mean that the various elements of proof, defenses, and other substantive concepts surrounding an indictable offense control the impeachment process. Nor does it mean that state or federal criminal codes are necessarily the place to turn to provide a standard under the United States Constitution. Impeachment is a constitutional remedy. The framers intended that the impeachment language they employed should reflect the grave misconduct that so injures or abuses our constitutional institutions and form of government as to justify impeachment.

This view is supported by the historical evidence of the constitutional meaning of the words “high Crimes and Misdemeanors.” That evidence is set out above. It establishes that the phrase “high Crimes and Misdemeanors” — which over a period of centuries evolved into the English standard of impeachable conduct — has a special historical meaning different from the ordinary meaning of the terms “crimes” and “misdemeanors.” “High misdemeanors,” referred to a category of offenses that subverted the system of government. Since the fourteenth century the phrase “high Crimes and Misdemeanors” had been used in English impeachment cases to charge officials with a wide range of criminal and non-criminal offenses against the institutions and fundamental principles of English government.

There is evidence that the framers were aware of this special, non-criminal meaning of the phrase “high Crimes and Misdemeanors” in the English law of impeachment. Not only did Hamilton acknowledge Great Britain as “the model from which [impeachment] has been borrowed,” but George Mason referred in the debates to the impeachment of Hastings, then pending before Parliament. Indeed, Mason, who proposed the phrase “high Crimes and Misdemeanors,” expressly stated his intent to encompass “[a]ttempts to subvert the Constitution.”

. . . the person convicted is further liable to a trial at common law, and may receive such common-law punishment as belongs to a description of such offences if it be punishable by that law.

…The post-convention statements and writings of Alexander Hamilton, James Wilson, and James Madison — each a participant in the Constitutional Convention — show that they regarded impeachment as an appropriate device to deal with offenses against constitutional government by those who hold civil office, and not a device limited to criminal offenses. Hamilton, in discussing the advantages of a single rather than a plural executive, explained that a single executive gave the people “the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office, or to their actual punishment in cases which admit of it.” Hamilton further wrote: “Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment.”

The American experience with impeachment… reflects the principle that impeachable conduct need not be criminal. Of the thirteen impeachments voted by the House since 1789, at least ten involved one or more allegations that did not charge a violation of criminal law.

…Impeachment is a constitutional remedy addressed to serious offenses against the system of government. The purpose of impeachment under the Constitution is indicated by the limited scope of the remedy (removal from office and possible disqualification from future office) and by the stated grounds for impeachment (treason, bribery and other high crimes and misdemeanors). It is not controlling whether treason and bribery are criminal. More important, they are constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself, and thus are “high” offenses in the sense that word was used in English impeachments.

The framers of our Constitution consciously adopted a particular phrase from the English practice to help define the constitutional grounds for removal. The content of the phrase “high Crimes and Misdemeanors” for the framers is to be related to what the framers knew, on the whole, about the English practice- the broad sweep of English constitutional history and the vital role impeachment had played in the limitation of royal prerogative and the control of abuses of ministerial and judicial power.

Impeachment was not a remote subject for the framers. Even as they labored in Philadelphia, the impeachment trial of Warren Hastings, Governor-General of India, was pending in London, a fact to which George Mason made explicit reference in the Convention. whatever may be said on the merits of Hastings’ conduct, the charges against him exemplified the central aspect of impeachment – the parliamentary effort to reach grave abuses of governmental power.

The above survey puts in historical context the meaning of the phrase “high crime and misdemeanors”, the context of which provides for a remedy to remove from office any President for any number of offenses, many of which will not nor need meet the criterion of a criminal offense. Two recent examples come to mind, the use of the FCC in net neutrality and Internet censorship, and the use of the Environmental Protection Agency to blame carbon dioxide for global warming and move to begin attempts to regulate industrial production. Neither agency belongs to any branch of the federal government, however many of the top commissioners are appointed by the President and serve at the pleasure of the President. As noted by James Wilson during the Pennsylvania convention.

James Wilson, in the Pennsylvania convention, described the security furnished by a single executive as one of its “very important advantages “:

The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes. . . . Add to all this, that officer is placed high, and is possessed of power far from being contemptible, yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.

One also recalls repeated misrepresentations about the healthcare bill by the President. Too numerous to mention here, each day brings with it another unveiling of an “unknown” consequence of the new bill. As this bill affects the health and welfare of every American and impacts 1/6 of the U.S. economy, it is clear that an investigation into vote buying and backroom promises made by the President are in order. Dick Morris states in Sestak Job Offer Grounds for Impeachment? (emphasis mine):

And, you know — first, I don’t mean to pass over that. That is absolutely true and that is something we need to focus on. But there’s a broader concept here. This is Chicago ward politics at its worst. This is literally taking it out of the hands of the voters.

And you have the same that apparently went on in Colorado with Romanoff trying to get him out of the race in order to get Michael Bennett’s vote on health care. And I think that is just revolting.

Perversion of the political process, false promises of transparency, and explicit attempts to subvert the constitution through proxies are the modus operandi of this President. It is time this country seriously looked into impeachment as a remedy for tyranny. We should demand it.

As far as the Sestak affair is concerned, the stench worsens each passing day. From Dick Morris and Judge Napolitano – Penn AG Tom Corbett Should Empanel Grand Jury In Sestak Affair:

With a Democratic Attorney General in Washington, a Democratic president, and both houses of Congress solidly in Democratic control, it is obviously futile to hope that the possible bribery of Joe Sestak to induce him to withdraw from the Senate race against Arlen Specter will be fully investigated. But, as the facts of this scandal grudgingly emerge from the White House and from Congressman Sestak, there is an alternative way to pursue justice.

The Pennsylvania Attorney General, Tom Corbett — who is the Republican nominee for Governor this year — has ample jurisdiction to convene a grand jury to get to the bottom of the scandal and answer the key questions:

1. Who offered a job to Sestak?

2. What job was proffered?

3. And did the president know of the offer?

Corbett’s jurisdiction stems from the concept of universal jurisdiction, now accepted virtually everywhere. The concept is simple. If someone on the New Jersey side of the Hudson River fires a pistol across the Hudson and the bullet from the pistol hits someone on the NY side, where did the crime take place? For about 600 years, the answer would have been in NY, where the harm was caused. Under the Reagan administration, and in response to urgings from the Meese Justice Department, the courts began to accept the doctrine of universal jurisdiction. This principle gives jurisdiction to law enforcement in the place wherever any act occurred that may have resulted in a crime. Thus, under our scenario above, the shooter could be prosecuted in NJ or NY.

Thus, if Cong. Sestak was in one of his homes, in PA or VA, when he received a telephone call offering him a job if he withdrew from the PA Senate primary against Sen. Arlen Specter, law enforcement authorities in PA and VA — both of which have Republican state Attorneys General — can subpoena Cong. Sestak to testify before a state grand jury and compel him to answer the who, what, when, and where that everyone has a right to know.

Dick Morris also writes: Sestak Scandal Grows…And Still Stinks

While the Sestak affair potentially involves a criminal and impeachable act if Obama is implicated, the above analysis indicates that impeachment need not qualify as criminal. It is enough that an act be a dereliction of duty, negligent, or an attempted usurpation of power or violation of the public trust.

Impeach Obama Now.

In other news and opinion:

A Bright Idea: Less Litigation And More Interposition!

Bob Bennett is not a Victim of Anti-Incumbent Fever

Pelosi: We need partial-birth abortions for Jesus, or something