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Impeachment: How the Constitution’s Framers understood the term ‘high crimes and misdemeanors’

Frank Bowman III’s “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump” is a fine logical, factual legal tour of the key issues.

From the moment Speaker Nancy Pelosi gave the green light to House Democrats to begin an official impeachment process, the likeliest outcome has seemed pretty clear, at least to me. The House, controlled by Democrats, will almost certainly vote to impeach President Donald Trump. A few Democrats might not support the impeachment, but the numbers are there.

The Senate, controlled by Republicans, will not vote to convict and remove Trump. At the moment, I could imagine one Republican – Mitt Romney – voting to convict. I suppose, if you gave free rein to your imagination, perhaps Susan Collins, Lisa Murkowski, and even a couple of others might wobble. But it would take a two-thirds vote – 67 senators, to convict and remove Trump, which would require 20 Republican votes for conviction. I don’t know if anyone seriously thinks there are 20 possible Republican votes to convict. I do not.

On the other hand, I do feel that Trump has almost certainly committed impeachable offenses that would justify conviction and removal, perhaps quite a few of them. So there’s that. But what are impeachable offenses?

The moment seems ripe for us to try to understand what the impeachment clauses are doing in the Constitution, and how they might apply to the Trump case, so I’ve been reading “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” by Frank Bowman III, a law professor, legal historian and former federal and state prosecutor. It’s a fine logical, factual legal tour of the key issues, from which I learned a great deal.

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Bowman is not the only scholar seizing the moment to share his expertise on the topic, but his book is a also fabulous overview of impeachment history. You should read it. But in case you don’t get around to it right away, I’ll pass along some things that struck me as helpful in thinking through the case for (and against) the impeachment of Trump.

Let’s start with the mysterious (at least to modern ears) phrase describing the proper basis for impeaching and removing a president: “Treason, bribery, or other high Crimes and Misdemeanors.”

The contemporary mind rebels at the phrase. Treason and bribery are so specific, but what “other high crimes” might be comparable grounds for removing a president is an open question and what the heck is the word “misdemeanors” doing in there? To modern ears, “misdemeanor” refers to the dinkiest kinds of minor violations that don’t even merit a jail term, let alone removal of a president.

The meaning in 1787

Bowman cleared this up for me, by explaining the 1787 meaning of the term, and where the Framers got it, which is from English law and history. (The Framers had spent most of their lives as subjects of the British crown and the British legal system.) There’s a lot more to Bowman’s history and analysis of impeachment, and I highly recommend the book. But to keep this a manageable Monday read, I’ll focus on the first part, in which Bowmen illuminates how that strange phrase got into the Constitutional definition of an impeachable offense.

The very idea of “impeachment” was borrowed from English law, where it had long existed as a way for Parliament to remove government officials. England had (and still has) no written Constitution like ours, but relied on the accumulation of cases over the centuries, including cases of officials who were “impeached” (an old English term, derived from the French “empecher” which means to prevent or preclude ) and removed from office.

Bowman definitely argues and demonstrates that “high crimes and misdemeanors” was borrowed by the Framers from British legal tradition, and – perhaps more pertinently — that under that tradition an official didn’t have to have violated a concrete criminal statute to be impeached and removed from high public office.

Britain’s unwritten constitution was (and is) based on centuries of precedent, and had clearly established (by doing it many times over the centuries) the power of Parliament to impeach and remove officials.

But until I read Bowman, I didn’t know that, from the 1600s forward, Parliament relied on the exact phrase “high crimes and misdemeanors” when impeaching and removing public officials for various misdeeds, many of which were not literally “crimes.”

Briefly added ‘maladministration’

As our Framers drafted what became Article II, Sec, 4, which lays out the grounds for impeachment, they first had a draft that referred to “treason, bribery or corruption” as grounds for impeachment. They dropped “corruption.” But naming just two specific crimes seemed too limited. So they briefly added “maladministration” as a ground for impeachment.

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But they didn’t want the Congress to be able to remove a president on vague-sounding grounds that might be no more than policy disagreements, which James (“Father of the Constitution”) Madison argued would make the president too subservient to Congress.

So they replaced “maladministration” with “other high crimes and misdemeanors,” which had been used for centuries by Parliament to impeach various British officials who had abused their powers, but not necessarily violated a specific criminal law. It was adopted by a vote of 8-3 (each state having one vote and apparently only 11 of the 13 voting that day), and never removed.

To me, this all but settles the question of whether a president has to have committed an actual felony or any specific criminal act to be impeached.

Bowman writes that, from the 17th century forward (this would have been the period most familiar to these 18th-century American Framers, who had grown up as British subjects) Parliament routinely employed the phrase “high crimes and misdemeanors” at the beginning of articles of impeachment to describe the list of offenses justifying impeachment of English officials, the details of which would be spelled out further, often for acts of “corruption,” a phrase that Bowman says often refers to the misuse of office for the personal benefit of the officeholder being impeached.

Whether, for example, asking or pressuring the leader of a foreign power to dig up dirt on a possible future political opponent, fits that description, is certainly a fair question. But to reinforce to the main point, Bowman writes:

“Parliament commonly impeached for conduct that was not a statutory or common law crime. This undeniable fact reveals one of the most important points about ‘high crimes and misdemeanors’ as a term of art. It does not means what it appears to mean.

“In fact, the phrase ‘high crimes and misdemeanors’ doesn’t appear in old English criminal statutes or law books, but was first used in an impeachment case against the Earl of Suffolk.”

A different meaning of ‘misdemeanor’ in this context

According to Bowman, in the English impeachment cases: “the word ‘misdemeanor’ did not mean a common law criminal offense less serious than a felony, or at least it was not limited to such offenses. Instead, the words ‘crimes and misdemeanors’ though they could include indictable offenses, were used more in their colloquial sense of ‘bad behavior.’

“The word ‘high’ in front the phrase signaled seriousness and political character,” Bowman writes. “The whole phrase came to mean nothing more than ‘the kind of serious bad behavior Parliament has thought worthy of removal and punishment.”

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Bowman notes that if you don’t know this history, and you see “other high crimes and misdemeanors” on a list that starts with “treason and bribery,” modern readers will assume that these are all terms for various levels of criminality. But, he argues, that is wrong and was understood by the Framers not to be the case because they knew the whole phrase had resulted in impeachments of English officials who had committed no specific crime for which they could be convicted in court and locked up.

“Over and over, Parliament impeached ministers for conduct alleged to subvert its conception of proper constitutional order in favor of the ‘arbitrary and tyrannical’ government of ambitious monarchs and their grasping minions,” he wrote. “This was the tool Mason wanted for Congress,” referring to Virginian George Mason, the Framer who was influential in the creation of the final impeachment language.

“When the convention accepted Mason’s addition of ‘high Crimes and misdemeanors,’ to ‘treason and bribery,’ it was choosing political impeachment,” not just enforcement of criminal law.

Bowman ends this chapter of his book thus:

“In adopting impeachment provisions that allowed the removal of a president for ‘high crimes and misdemeanors’ the founding generation conferred on Congress the power …to identify for themselves the essential characteristics of the American Constitutional system to defend that system by removing its chief executive officer if he or she, by any individual act, pattern of behavior or culpable inattention, places it at risk.”

History of the three impeachment cases

Bowman’s book also covers the three big presidential impeachment cases of U.S. history, covering Presidents Andrew Johnson (who was impeached in the House and came within a single vote of being convicted in the Senate); President Richard Nixon, who resigned when it was clear that he would be impeached and removed; and President Bill Clinton, who was impeached by the House but not convicted by the Senate and served out the remainder of his term.

He also analyzes various categories of possibly impeachable conduct, including many categories that might arguably apply to the current occupant of the Oval Office, and does a great job of explaining how they fit into the history and law of impeachment through the American centuries

Bowman’s book, published by Cambridge University Press is titled: “High Crimes and Misdemeanors; A history of impeachment for the age of Trump.”