Presidential Power

The Ultimate Check: Understanding the Impeachment Clause

The history isn’t unambiguous, but it leans toward expanding impeachment beyond criminal offenses.

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This is the fifth and final installment of a series of posts on my new book, Contested Ground: How to Understand the Limits of Presidential Power. Today's subject is Congress's ultimate weapon against the President: impeachment and removal from office.

The most controversial issue is about whether the grounds for impeachment, commission of "high crimes and misdemeanors," is limited to criminal offenses. Pre-Framing history seems to support a broader reading that includes serious abuse of power. The Framers did not invent impeachment. It has a long history, going back four centuries before they wrote the Constitution. The first impeachments in England were late in the 1300s. The charges involved military failures, corruption, and wasting government money. It was in 1386 that the phrase "high crimes and misdemeanors" was first used. That phrase was used again in 1450. In that case, some of the charges against the defendant involved criminal offenses. There were other charges that the defendant procured offices for people who were unfit and squandered public funds. Impeachment had an on-again-off-again history as a tool for Parliament to get rid of unpopular royal officials. After falling out of use for a long period, impeachment became prominent again under the Stuart Kings, who ruled after Queen Elizabeth I's death. The charges against officials in that period included non-criminal conduct such as mismanagement, subverting the law, promoting tyrannical government, and giving bad foreign policy advice. One judge was impeached for browbeating witnesses and getting drunk.

The Framers may not have known all the details of British history, but they would have been well aware of the general practices. At the same time the Constitution was being written in Philadelphia, impeachment was again a subject of lively interest in Britain. The British Parliament was immersed in impeachment proceedings against Warren Hastings. He was charged with abusing his power in managing India on behalf of the British. Edmund Burke, the leading advocate for impeachment, made it clear that no criminal charges were involved.

Impeachment was familiar to Americans, not only because they had read about its use in England, but also because they had used it themselves. A century before Independence, Maryland impeached a colonial officer for bungling a military expedition, sabotaging the colony's policy toward Indian tribes, and murdering hostages. In Pennsylvania, a colonial official was impeached for legislative contempt. Closer to Independence, a judge was impeached after agreeing to receive a salary from the King rather than the colonial government, which the Massachusetts legislature viewed as a case of undue royal influence.

At the Constitutional Convention, there was initial disagreement about whether impeachment was necessary or whether the desire for reelection was a sufficient restraint on misbehaving Presidents. Once that was resolved, there was protracted discussion of who should judge impeachments—the Senate, the Supreme Court, or someone else? And finally, the convention delegates had a hard time finding the right description of the grounds for impeachment. They began with "mal-practice or neglect of duty," changed that to "treason, bribery, or corruption," then hit on "treason, bribery, or high crimes and misdemeanors against the state." "Against the state" got changed to "against the United States" before being dropped entirely, leaving us with the final constitutional language of "high crimes and misdemeanors."

Madison's terse notes have been plumbed for clues for what the delegates had in mind. He and some other delegates were clearly concerned about presidential abuse of power going beyond criminal conduct. Among the grounds for impeachment mentioned during the debates were corruption, loss of capacity, bribery, treachery, negligence, and "perfidy." Pre-election misconduct was also discussed, including the risk that a President might gain office by corrupting the members of the Electoral College.

The debates at the convention, along with a few mentions in the Federalist papers, are suggestive but don't seem dispositive of what "high crimes and misdemeanors" was supposed to mean. At least on my reading, however, the term had not been historically limited to violations of criminal law.

What about later practice? All of the successful impeachments, and nearly all of the rest, involved federal judges. Since federal judges have life tenure, impeachment is the only way to remove them. Corruption, a criminal offense, has been the primary justification. But other grounds of impeachment have also made appearances. One judge was removed for treason, having gone over to the Confederacy during the Civil War. Others were removed for incapacity (such as being mentally incapable or drunk on the bench), committing crimes while serving as judges (such as tax evasion), or abusive behavior during trials. The cases involving abusive behavior and incapacity suggest that noncriminal behavior can qualify as high crimes or misdemeanors.

On balance, the argument for the broader reading of the class seems more persuasive to me, both on historical and functional grounds. Limiting impeachment to criminal offenses would immerse the process in technical legal arguments, such as the complexities of federal statutes governing corruption, which Congress is ill-suited to addressing. Moreover, there is conduct that should clearly disqualify a person from holding office but that may not be a criminal offense. For example, a judge might engage in abusive and disruptive conduct during trials or sexual harassment of court employees. A President might declare use official powers to silence political opponents or engage in deliberate, but noncriminal, constitutional violations.

The best argument for a narrower reading is that Congress might abuse its impeachment powers if those powers are defined broadly. That's certainly a concern. I'm skeptical that adopting a narrow reading would prevent such abuses, given the complexity of the federal criminal code and the potential for reading provisions broadly. The more effective check is the requirement of a two-thirds vote in the Senate, which means that removal from office would almost inevitably require bipartisan support.

Impeachment is the "nuclear option" of checks and balances. Congress's control over appropriations and its power to investigate the executive branch are the normal tools for checking executive actions. Even though no president has ever been removed from office by impeachment, however, the mere existence of the nuclear option may have a deterrent effect.

That brings us to the end of this series of posts. In closing, I would like to again thank the editors for generously giving me the opportunity to post on this forum. I also appreciate the attention of readers who I hope have gotten some sense of the way I approach these issues in Contested Ground.

NEXT: Michael McConnell Wins Cooley Book Prize

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  1. Uh boy...I am getting popcorn to read the comments on this blog post later today. 🙂

    1. I agree. Supreme Court Justices should be impeached for their decisions, not just for stupid, collateral, trivial corruptions. No mor lawyer gotchas. Gotchas are pretextual and fraudulent. Their decisions are their biggest crimes. They must be stopped from undermining our nation.

  2. Impeachment for
    mean tweets
    calling for investigation of criminal activity
    calling for investigation of govt corruption
    Dementia

    1. Your last line does indeed sum up your posted comment.

  3. Whatever happened to the argument made in the last ...fifteen years that judges who consistently made rulings far outside the 'acceptable' legal canon were guilty of bad behavior? I particularly remember suggestions that certain members of the Ninth Circuit could be so adjudged on the basis that the SC kept striking down their rulings.

  4. A typo that does not cause confusion: "the broader reading of the class" should presumably say "clause" instead.

    The spending and investigation powers of Congress have had little effect in stemming the executive's misbehavior. There are both structural and political causes of the power of the purse failing to deter executive abuse. Structurally, it is harder to embody an effective ban in spending bills because it requires both committee and legislature-wide actions and agreements, compared to executive action and orders that devolve from superior officers to their subordinates. Also, budget bills have low temporal resolution compared to executive actions, and so can end up in perpetual "catch up". Politically, members of Congress do not want to cut budgets in any significant way, even if the target has a long history of problems.

    The investigation power has also been largely toothless. Take, for example, the "gun walking" scandal of the Obama administration. The executive stonewalled Congressional subpoenas, stood in contempt of Congress, and still nothing happened. There were no punishments or impeachments for those refusals to support Congress in investigating and understanding what happened and how to prevent BATFE from arming Mexican cartels. The same tactics are used generally; if someone has the backbone to ignore blustering Senators yelling at them in Congress, they will generally be able to escape any consequences from Congressional actions.

    Finally:

    The charges against officials in that period included non-criminal conduct such as mismanagement, subverting the law, promoting tyrannical government, and giving bad foreign policy advice. One judge was impeached for browbeating witnesses [...].

    That reads like a synopsis of any given week's episode of the soap opera known as "The Biden/Deep State Administration".

    1. The charges against officials in that period included non-criminal conduct such as mismanagement, subverting the law, promoting tyrannical government, and giving bad foreign policy advice. One judge was impeached for browbeating witnesses […].

      That reads like a synopsis of any given week’s episode of the soap opera known as “The Biden/Deep State Administration”.

      Who's scruffy-looking?

  5. Who cares ?

    Unless you change the fact that Congress is judge, jury and executioner, it doesn't really matter what learned interpretation you put on the words. We have really moved on to a sort of "recall" system, if 50%+1 of the House and two thirds of the Senate are not on your side, then out you go. Insisting that impeachment is for "high crimes and misdemeanors" simply puts a generous lather of moral cant into the prosecution case - which in reality is simply a case of political disagreement.

    "Wasting money" - c'mon man !

    1. Lee, I would argue that the problem is more on the other side. Bill Clinton did in fact commit perjury, which strikes me as a high crime and misdemeanor. Donald Trump did in fact urge a foreign government to go after his political enemies, which also strikes me as impeachable. Had those been jury trials, I have no doubt both men would have been convicted. But in both cases, the pure politics of it kept them from being removed from office. At this point, impeachment looks more like a paper tiger than anything else.

      1. "Donald Trump did in fact urge a foreign government to go after his political enemies, which also strikes me as impeachable."

        Got any proof other than MSM bullshit and Democrat's wet dreams?

        On the other hand a representative of the Clinton campaign DID try to use a foreign power to influence an election and then lied about it.

        1. Trump pretty clearly did want Ukraine to investigate whether Hunter Biden was selling influence with Joe Biden. That's going after the family of his political opponent, not directly after Joe, but probably close enough to count.

          The problem is that all the evidence points to both Bidens being knowingly involved in exactly the kind of corrupt influence-peddling that Trump wanted to be investigated. Running for office should not exempt someone from that kind of scrutiny.

          1. Michael, I don't disagree with you, but the issue is whether, in 2018, there were grounds to impeach Trump. That the Bidens are less than pristine has nothing to do with whether Trump had committed high crimes and misdemeanors. And I think asking a foreign government for help against your political rivals qualifies.

            1. So all the evidence points to Bidens being involved in things that should be investigated, but since they're Trump's political rivals they can't be investigated?

              1. Who said they can't be investigated? Certainly not me.

                But assume they're the most corrupt family since the Medicis. Their conduct is irrelevant to whether Trump was guilty. Trump gets his own trial at which the Bidens are irrelevant and, if there's evidence to back it, the Bidens get their own trial at which Trump is irrelevant. This is really not a difficult concept.

                1. "Their conduct is irrelevant to whether Trump was guilty."

                  I don't see how that's possible. Say you have a prosecutor that brings charges against a political rival. In scenario A, it turns out the rival is guilty of murder or embezzlement or whatever, and the prosecutor was acting all along on the basis of significant evidence, objectively reasonable grounds and subjective good faith. In scenario B, it turns out there was zero evidence whatsoever of any criminal wrongdoing but the prosecutor brought charges and announced investigations based on nothing.

                  Is there really no difference?

                  1. There is, but there are also a bunch of facts you've left out as it relates to this case.

                    First, the central point that you're missing is that a sitting president tried to enlist the assistance of a foreign government, which government was badly in need of assistance from the US against the Russians, for a political hatchet job. That is an abuse of the power of the presidency. You don't use American foreign relations to further your own political ambitions. And that's what really made it impeachable.

                    Second, Trump's abuse of the power of the presidency is an independent issue from anything the Bidens may have done. If the Bidens committed crimes, investigate and prosecute them (without abusing presidential power in the process), but Trump still abused the power of the presidency. And he isn't excused from having abused the power of the presidency just because the guy he wanted investigated really did it.

                    The better analogy than your prosecutor one is this: Suppose a police officer beats a confession out of a suspect who really is guilty. Is the suspect guilty? Yup; I just said he was. Does that mean the police officer can't be prosecuted for violating his civil rights? Nope. Try both of them. And "he beat a confession out of me" won't be a defense to the crime; neither will "but he really was guilty" be a defense to police misconduct.

                    1. "He beat a confession out of me" may get the evidence excluded, but if the police have sufficient other evidence, he can still be convicted.

              2. Sigh. Can't believe we need to religitate these issues. Nobody was investigating the Bidens. (And there was no such "evidence," but that's beside the point.) Trump wanted the government of Ukraine to announce an investigation of them, not to investigate them. He used his private lawyer, not the DOJ, to run this scheme, precisely because there wasn't any actual investigation of the Bidens. Had the DOJ actually been investigating the Bidens, there was an established legal procedure, set forth in a treaty with the Ukraine, to ask for Ukrainian assistance with the DOJ's investigation.

                (And, of course, to accomplish this he extorted the Ukrainian government by illegally withholding US aid that Congress had mandated.)

                1. I was just going by the premises accepted in this discussion.

                  "Nobody was investigating the Bidens."

                  Except the Ukrainian prosecutor says that they were, and produced documentation to that effect. Perhaps he's lying for political purposes, but there's no evidence for that, other than some other people who really want it to be false for political reasons claiming that it's false.

                  1. No. You're confused. The corrupt Ukrainian prosecutor says that they were investigating Burisma, not the Bidens.

                    And there is indeed evidence that the corrupt Ukrainian prosecutor is lying: (1) they were not in fact investigating Burisma; and (2) he didn't come up with this claim to the contrary until several years down the road, after being offered inducements by Trump's cronies.

                2. Dude. "Trump didn't want an investigation, he just wanted an announcement of an investigation" is one of the stupidest claims I've ever heard. It makes no sense why he would want that, and it's a claim backed up by nothing. Even if he wanted the announcement, it can be easily argued that it was to get them on the record so it couldn't be quietly squashed.

                  The issue is that we KNOW beyond any reasonable doubt that Biden was accepting bribes through his son. It has been suspected since before he even made the vice presidency, with headlines talking about Biden's "soft corruption" going back to the 90s.

                  Asking Ukraine to investigate crimes that occurred within their borders might be politically dodgy, but to claim that it's somehow criminal requires absurd mental contortionism. The only real question is if there was probable cause to start an investigation, which (given the numerous news articles about it) there appeared to be.

                  1. It makes no sense why he would want that,

                    It makes all the sense in the world why he would want that. (1) It would allow dumb and dishonest Trumpkins (a redundancy) to make exactly the false claims that you're making. (2) It avoided the pitfall that conducting an honest investigation would have led to an exculpatory finding.

                    and it’s a claim backed up by nothing.

                    Except actual testimony of the people involved in putting the pressure on Ukraine, who expressly said under oath that what Trump wanted was an announcement of an investigation.

                    What "makes no sense" is why, if there were legitimate suspicions that Biden had done something illegal, Trump would have asked his personal lawyer to pressure a foreign country to investigate those suspicions, rather than the DOJ actually opening such an investigation and the AG asking the Ukrainian government for their assistance in conducting it.

                    The issue is that we KNOW beyond any reasonable doubt that Biden was accepting bribes through his son.

                    Ah, so you're at least two of crazy, stupid, and dishonest. You "KNOW" this in the same way you "know" that Jews are using their space lasers to start forest fires and George Soros is bribing black people to riot and there are microchips in covid vaccines which aren't really vaccines because covid is a hoax and the Chinese government was printing fake ballots with Joe Biden's name on them to steal the election in Arizona.

                    but to claim that it’s somehow criminal

                    What was "somehow criminal" was not "asking" Ukraine to investigate crimes, but extorting them by withholding aid that he had no lawful authority to withhold. It is not legal for the president to refuse to spend money that Congress has told him to spend.

          2. "Running for office should not exempt someone from that kind of scrutiny."

            That's exactly it: Unless you can prove that Trump didn't care if they were guilty, the case for his having done something wrong here is pretty weak.

            Certainly, it was impeachable in the trivial sense that anything 51 Senators object to can be the basis for an impeachment. But you're not going to get a conviction without such evidence.

        2. Thank you for disqualifying yourself as someone to be taken seriously.

          1. The disqualifying comment was directed at jimc5499, just to be clear.

        3. Got any proof other than MSM bullshit and Democrat’s wet dreams?

          Yes. You probably should've paid attention during impeachment; it was all laid out. There was significant testimony from Trump officials themselves. Most Republicans in the Senate didn't even bother to deny it; they just declared that it didn't justify removal.

      2. "Donald Trump did in fact urge a foreign government to go after his political enemies"

        Don't forget that the Mueller investigation and the earlier Trump-Russia investigation and innuendo program, was assisted and initiated by 16 foreign countries upon request.

  6. Is this really still controversial? I thought everyone pretty much agreed that "high crimes and misdemeanors" means absolutely whatever Congress wants it to mean, and that means absolutely and totally - anything goes. Whatever anyone finds objectionable can count.

    So it's very strange to see people still pretending otherwise.

    The only point to make about actual criminal conduct is this: IF you pursue impeachment but you have no case for actual criminal conduct (in the era of "three felonies a day" no less), or you cannot meet a similar evidentiary burden to that required for criminal charges, you might reasonably expect that your cause may be politically unpopular and may falter among members of Congress.

    Now, for those that don't like this -- presumably, the more dumb and corrupt we get, and the more dependent on government welfare, the less any politician will have to care about what people might think and the less people will do any thinking. So there is a strong ray of hope.

  7. The debates at the convention, along with a few mentions in the Federalist papers, are suggestive but don't seem dispositive of what "high crimes and misdemeanors" was supposed to mean. At least on my reading, however, the term had not been historically limited to violations of criminal law.

    I suggest you might find your way to a more confident reading if you reflect that the word, "high," might not be meant to focus on how serious the charge is, so much as it is meant to focus on who the offense is against. By analogy, if you read up on, "high treason," you may come away understanding what I suggest. In that usage, high treason is not, "high," because it is so heinous. It is "high," because the target of the offense is, "high." High treason involves disloyalty to the sovereign, by someone who owes the sovereign loyalty. The actual offense which could incur a charge of high treason could be almost insignificant, or as grave as sleeping with the sovereign's wife. Either way, it was the fact that the offense targeted the sovereign which made it, "high." By contrast, other lapses in a duty of loyalty—not involving the sovereign—were designated, "petty treason."

    If you interpret "high crimes and misdemeanors," in a similar light, then you can conclude that the offense in question is less important than who it harms. In that analysis, "high crimes and misdemeanors," become impeachable if they traduce the will of the sovereign People, disrupt their system of government, or compete with the People themselves for sovereignty.

    For instance, offering U.S.-supplied blandishments to a foreign power to induce it to besmirch the reputation of a rival for office—whether criminal conduct or not—would put a president sworn to protect the Constitution in the position of attacking the People's constitutive power to say who their government officials will be. That is a high crime indeed, because an official sworn to loyalty to the sovereign People instead competes with them on a matter of exclusive sovereign prerogative—to say who the President will be.

    Use that method to analyze the meaning of, "high crimes and misdemeanors," and I suggest the results will be more to the point, and the confusions will be far less.

  8. Shouldn’t “serious abuses of power” be criminal?

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