Article II, Section 4 of the Constitution supplies the standard for removing federal officers. In the excerpts, Gene Healy states that the provision says the President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. He adds that most of the action and most of the debate over interpretation is on the last phrase — what “high crimes and misdemeanors” means — a phrase with several centuries of history before the drafting of the U.S. Constitution that does not translate easily into modern contemporary American English Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).
The standard and the debate over its meaning
Healy frames the clause as setting a standard rather than a trigger: the Constitution does not say a president can be removed every time there is a majority of the House and a supermajority of the Senate, so a theory of what the phrase means is needed. He notes that even if the Supreme Court never rules on whether something was a high crime and misdemeanor — despite what President Trump and Alan Dershowitz seem to think — it remains important to try to figure out what the phrase means The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).
The excerpts return repeatedly to a common confusion: that impeachment is a criminal process requiring a crime. Healy says people believe impeachment requires a crime and ask, when it comes to President Trump, where the crime is — a notion that a technical violation of a criminal statute is needed. That, he says, is not really the sense in which the phrase was used. High crimes and misdemeanors in British law did not have to be, and often were not, statutory violations, and it was understood early on that this was not a requirement for impeachment in the U.S. system Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).
Healy draws the conclusion sharply: impeachment is not a criminal process, it does not require a crime, and crimes are neither necessary nor sufficient to make out an impeachable offense The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).
The three federal crimes at ratification
Bob Zadek emphasizes Healy’s point by way of a counterfactual. If the Founders were saying by implication that the only predicate for impeaching and convicting a president was the commission of a crime, then at the time the Constitution was ratified there were only three federal crimes, which means a sitting president could only be impeached if he was guilty of treason, counterfeiting, or piracy. Zadek calls it a wonderful parlor game to ask how many presidents would have been found guilty of one of those three and only three federal crimes, and concludes that the predicate for impeachment had to be something beyond the plain commission of a crime Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).
Healy makes the same structural argument: had high crimes and misdemeanors required an actual technical violation of a federal criminal statute, impeachment would have been a pretty useless remedy at the outset, because there were only a handful of federal crimes mentioned in the Constitution and very few federal criminal laws on the books at the outset. On that reading, an impeachable offense that had to be a crime would have made impeachment a dead letter from the very start after ratification Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).
Legal and political
Asked what frame of mind should govern — political, criminal, or something else — Healy answers that impeachment is part legal and part political. The legal part is that the Constitution sets out the Article II, Section 4 standard, so a theory of what the phrase means is required. The political part is that once something is decided to be an impeachable offense within the meaning of the constitutional language, that does not solve all the problems The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).
Healy illustrates the division with obstruction of justice. The legal part can tell you what is an impeachable offense, and on obstruction of justice he thinks the answer would be yes: Richard Nixon had articles of impeachment about obstruction of justice and was driven from office, and Bill Clinton was impeached for obstruction of justice. But that does not answer whether it is necessary, prudent, or a good idea to remove the president. In the Clinton case, the Senate decided it was not. He describes all sorts of prudential judgments and, frankly, rank partisan political judgments going into the politics part, and summarizes the whole as a mixed operation of law and politics The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).
The coup framing
Zadek takes up the language used by Republicans and by pundits or alleged pundits — that something is nothing short of a coup d’état — and calls the word scary though not the context. He observes that a coup d’état is kind of ineffective if somebody picked by the president and of the same party then becomes president, that he is not sure there is a lot of drama or change if Donald Trump is replaced by Vice President Pence, and that the coup framing is utterly absurd with regard to impeachment The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).
He then poses the framing question directly: there has been a lot of discussion that impeachment is a political process, not a criminal law process, and that impeachment is undoing the will of the people manifest by an election. He asks whether impeachment should be looked at as a political process, nothing other than another notch up from the House or the Senate censuring the president The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).
The removal power and the will of the people
In a later episode, Zadek sets out the Founders’ awareness of impeachment and the debate during the drafting of the Constitution. He notes that James Madison was perhaps the principal author, that 55 men sat in Philadelphia for four and a half months and worked over the Constitution, and that they felt the absolute need to provide for the removal of a popularly elected official from office — to thwart, if you will, the will of the people. He asks what the Constitution says about how we undo the will of the people, and answers his own question: not much Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).
Healy supplies the structural answer: the House has the sole power of impeachment, the Senate has the sole power to try impeachments and remove federal officers, and Article II, Section 4 states the removal standard Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).
Precedent
Zadek observes that the “how much more than that” is the subject of endless debate which cannot be resolved because of the history of the country. Only three presidents in our history were seriously exposed to impeachment, and none was convicted in the Senate, so if you rely upon precedent there is a dearth of precedent on the law of impeachment Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).
Across episodes: the same question in two episodes
The excerpts show the same question — whether impeachment is legal, political, or criminal — argued in more than one episode. The 2014 episode and the 2019 episode carry the same exchange between Zadek and Healy, with Healy’s answer that impeachment is part legal and part political, that it is not a criminal process, and that crimes are neither necessary nor sufficient to make out an impeachable offense. The 2018 episode adds the historical and structural material: the sole powers of the House and Senate, the British history of the phrase, the three federal crimes at ratification, and the dearth of precedent. The excerpts show no development or change in the position advanced; Healy’s formulation is consistent across the treatments, and the later material elaborates rather than revises it.
What the sources do not cover
The excerpts do not state what Article II, Section 4 says beyond the removal standard as Healy recites it, nor do they identify any case in which a court construed the clause. They do not give the outcome of any Senate trial beyond the statement that the Senate decided removal was not warranted in the Clinton case, and they do not name the articles or the votes. The excerpts also do not state the date or terms of any statute, the full text of the provision, or any amendment bearing on it.