Several months ago, 19 professors trooped before the House to parse the phrase “high crimes and misdemeanors.” A few weeks later, the House formally accused President Clinton of such acts. Incredibly at this late date, there is still no consensus over what exactly these four little words mean–this despite the fact that the Constitution has been the object of scholarly exegesis for over two centuries. The interpretation war continues because it is now the Senate’s job to decide whether to convict Clinton of “high crimes and misdemeanors.” Here are the six main positions:
The Gerald Ford Argument:
Ford is famous for saying that impeachable offenses are whatever Congress says they are. In fairness to Ford, his statement may be more than just a cynical observation about the irrelevance of constitutional scholarship to D.C. Realpolitik. There is evidence that the Founding Fathers were intentionally vague. Initially, the framers considered defining impeachable offenses as just “treason or bribery” (rather than the ultimate definition of “treason, bribery, or other high crimes and misdemeanors”). They tacked on the additional phrase because George Mason worried that “treason or bribery” was insufficient for removing a president who began to display dictatorial tendencies. The sophisticated version of the Ford argument–not attributable to Ford, of course–is basically that the framers offered a squishy definition in faith that Congress would know an impeachable offense when it saw one. (It is also clear however that Madison, at least, was worried about making the definition too vague, because excessive vagueness means that the president serves “during the pleasure of the Senate.”)
Under this theory, senators are urged to look into their hearts–rather than at constitutional scholarship–to decide whether perjury and obstruction of justice warrant removal.
Other scholars claim that “high crimes and misdemeanors” has a well-defined meaning–it refers to so-called “political crimes” (an old legal term). A crime is “political” when it involves the misuse of a politician’s official powers. If, for instance, the president accepts a bribe, it’s a political crime; if he shoots his wife, it is not. Support for this theory comes from contemporary speeches and the Federalist Papers. For instance, Federalist No. 65 (Alexander Hamilton) says that impeachable offenses “proceed from the misconduct of public men … from the abuse or violation of some public trust.” Under this theory, the obstruction of justice charge would count as impeachable, while the perjury charge would probably not.
A third group of scholars believes that “high crimes and misdemeanors” refers to “crimes against the state.” A crime is against the state when it attacks the very core of the state’s apparatus–treason is against the state, jaywalking is not. What’s the evidence for this interpretation? The word “high” is generally understood (in English law) to refer to crimes against the state–badmouthing the king is “high treason”; badmouthing your brother is “petit treason.” Moreover, the original phrasing, at the Constitutional Convention, was “other crimes and misdemeanors against the United States.” “Against the United States” was stricken by the Committee of Style, a branch of the convention charged with making the document’s language more elegant but prohibited from changing its meaning. The implication is that any competent lawyer in 1789 understood “high crimes and misdemeanors” to refer to crimes against the state. Finally, English commentaries like Blackstone suggest that perjury and obstruction of justice were considered crimes that attacked the core of the justice system. In other words, both crimes are impeachable offenses.
Under this argument, a public official has committed “high crimes and misdemeanors” when he offends public sensibilities. The evidence? Impeachment on such grounds was not unheard of in England. For instance, someone named Chief Justice William Scroggs was impeached in 1688 for, among other things, browbeating witnesses and public drunkenness. Explainer leaves it to readers to decide whether obstruction of justice and perjury (and finger-wagging on national TV) are more or less odious than Chief Justice Rehnquist staggering down Independence Avenue on a vodka bender.
The importance of “other”:
There is a linguistic argument that “treason, bribery, and other high crimes and misdemeanors” implies that high crimes and misdemeanors must be equal in seriousness to treason and bribery. For instance, a competent author wouldn’t write: “murder, child molestation, and other jaywalking-like offenses are impeachable.” Instead, he’d write that “murder, child-molestation, and jaywalking-like offenses are impeachable.” So the inclusion of “other” suggests that the second half of the phrase (“high crimes and misdemeanors”) is comparable in seriousness to the first half (treason and bribery). Furthermore, debates at the Constitutional Convention can be interpreted to show that delegates included the “high crimes and misdemeanors” phrase to allow Congress to remove the president only if he attempted to undo the constitutional plan. (They can also be interpreted to say the opposite.) In sum, the phrase applies only to very serious attempts to subvert the constitutional order, which means that perjury and obstruction of justice are not impeachable offenses.
Maybe they’re barking up the wrong tree:
One professor has even suggested that “high crimes and misdemeanors” are not the standard for impeachment, and that a president can be impeached for considerably less. The Constitution says the President “shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.” This is analogous to saying that “murderers will be indicted and jailed,” which does not imply that kidnappers won’t be indicted and/or jailed too. According to this argument, the framers believed that Congress could impeach the president for offenses smaller than “treason, bribery, and other high crimes and misdemeanors.” This returns us to the Ford position that the House can impeach whenever it wants, though the argument does not say that Senate can remove the president whenever it wants.