“High crimes and misdemeanors” is the phrase in Article II, Section 4 of the U.S. Constitution that defines the grounds for removing the President, Vice President, and all civil officers of the United States. Across several episodes of The Bob Zadek Show, host Bob Zadek and guest Gene Healy, Vice President at the Cato Institute, examined the phrase’s origins and its application in early impeachment cases, while in a later episode Timothy Sandefur proposed rewriting the standard altogether.
The constitutional text and its ambiguities
Healy laid out the basic structure: 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 provides that the President, Vice President, and all civil officers shall be removed on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. He said most of the debate over interpretation concerns that last phrase, which he described as having several centuries of history before the drafting of the U.S. Constitution but as not translating easily into modern American English. Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018)
Zadek raised a textual point about the word “other” in the phrase, noting that some observers believe high crimes and misdemeanors must be at the same level as treason and bribery because the Constitution says “treason, bribery, or other.” Healy agreed that under an old canon of construction whatever follows treason and bribery has to be like treason or bribery, but said one must then decide what it means to be like treason or bribery—whether, for instance, the official had to be in the pay of a foreign government. He said the Founders did not interpret the language that narrowly, because showing up to work drunk and ranting like a maniac from the bench, in the case of Judge Pickering, was considered an impeachable offense. The New Royal Prerogative: Philip Hamburger on Administrative Law (2014)
Not a criminal process
Healy emphasized that impeachment is not a criminal process and does not require a crime. He said people commonly believe impeachment requires a technical violation of a criminal statute, a notion he called understandable but wrong, and noted that high crimes and misdemeanors in British law did not have to be, and often were not, statutory violations. He added that if an impeachable offense had required an actual federal criminal statute, impeachment would have been a 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. Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018)
Zadek underscored the point, observing that at ratification there were only three federal crimes, meaning a sitting president could only be impeached if guilty of treason, counterfeiting, or piracy. He said the predicate for impeachment had to be something beyond the plain commission of a crime, and that how much more than that is the subject of endless debate. He noted that only three presidents in American history were seriously exposed to impeachment and none was convicted in the Senate, leaving 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)
In a later episode, Healy framed impeachment as part legal and part political. The legal part, he said, is that the Constitution sets out a standard in Article II, Section 4, so one needs a theory of what the phrase means, even if the Supreme Court is never going to rule on whether something was a high crime and misdemeanor. The political part is that once something is judged an impeachable offense, that does not answer whether it is necessary, prudent, or a good idea to remove the president. He cited obstruction of justice as an impeachable offense, noting that Richard Nixon had articles of impeachment about obstruction of justice and was driven from office, and that Bill Clinton was impeached for obstruction of justice, but that the Senate decided in the Clinton case that removal was not warranted. He concluded that crimes are neither necessary nor sufficient to make an impeachable offense. Which Impeachment Movie Are You Watching? (2019)
Early precedents: Pickering and Chase
Healy said the first place to look for impeachment precedent is the first three cases, which occurred in the roughly fifteen years after ratification: Senator William Blount in 1797, federal judge John Pickering in 1803, and Associate Justice of the Supreme Court Samuel Chase the next year. He said these cases involved contemporaries of actual ratifiers and some people involved in drafting the Constitution, so they give a good idea of how high crimes and misdemeanors was interpreted. Only one of the three involved anything that could even arguably be called a crime. Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018)
Pickering, Healy said, was the first case to result in conviction and removal of a federal officer, and he was not guilty of any crime; he was impeached and removed for showing up to work drunk and ranting like a maniac from the bench. Healy called this an indication of how broad the interpretation was: it indicated demonstrating unfitness for high office, which can be demonstrated in any number of ways. Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018)
Chase, impeached in 1804 and tried in 1805, escaped removal by four votes. Healy said the bulk of his offenses was being an openly partisan Federalist from the bench: he gave a charge to a grand jury where he ranted against Jeffersonian Republicans and seemed to condemn the principles of the Declaration of Independence, and in various other trials had shown real partiality against small-r Republican defendants. None of this was a crime, but the Jeffersonians thought it demonstrated Chase’s unfitness to be a Justice of the Supreme Court. Healy concluded that the early cases show impeachment is not a narrow technical remedy directed against violations of the criminal law, but can be directed against anything that arguably shows unfitness to serve. Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018)
Zadek, in the earlier episode, made a similar argument about Pickering, saying the first federal official to be impeached was impeached because he was drunk a lot and abusive to those who appeared before him, and that since it was pre-prohibition, being drunk was not a crime. He noted that the Founders were all around in 1804 except Washington, who died in 1799, and that if they felt that was not sufficient grounds for impeachment, they kept it to themselves. The New Royal Prerogative: Philip Hamburger on Administrative Law (2014)
Maladministration and the Mason-Madison exchange
Zadek asked Healy whether he was in the George Mason camp that maladministration, which Mason proposed but Madison rejected, should lower the standard for impeachment. Healy described the exchange at the Constitutional Convention: Mason talked about the Warren Hastings trial that had just begun in England and said maladministration should be added to treason and bribery; Madison objected that it was too broad a standard; and they ended up with high crimes and misdemeanors. Healy said people make too much of that exchange, noting that nobody who ratified the Constitution saw it because Madison’s notes on the convention were not revealed for at least fifty years, and that the phrase high crimes and misdemeanors in British practice included maladministration. He added that Madison himself, after ratification, said several times that certain kinds of maladministration are impeachable. The New Royal Prerogative: Philip Hamburger on Administrative Law (2014)
Healy said he would not put it in terms of lowering the standard, but that the constitutional standard properly understood includes some forms of gross mismanagement—not ordinary run-of-the-mill negligence or not being able to do a great job, because the office is impossible and too big for any one person, but some forms of maladministration or gross negligence. He said people should be less emotional about the prospect of impeaching the president, comparing it to parliamentary systems where it is not a national trauma if a prime minister has to quit or is forced out by their own party over a long weekend. He said it is not a tragedy for the company if the CEO is replaced, and not a tragedy for the country if the CEO of the executive branch is replaced. The New Royal Prerogative: Philip Hamburger on Administrative Law (2014)
Zadek responded that he ached for that aspect of a parliamentary system, but noted the difference that the Prime Minister is not directly elected by the people while the president is, so impeachment is one branch of government undoing the will of the people. The New Royal Prerogative: Philip Hamburger on Administrative Law (2014)
Sandefur’s proposed amendment
In a 2021 episode, Timothy Sandefur discussed impeachment in the context of a libertarian constitution. He said the Constitution as written and originally intended was perfectly fine, but that misconceptions had grown up around how impeachment operates and needed to be clarified. His view was that there should be a heck of a lot more impeachment than there has ever been in American history, not just presidents but judges and others as well. Timothy Sandefur on The Libertarian Constitution (2021)
Sandefur said that during the impeachment then underway, the issue was whether a president could be impeached for something other than a crime or simply for being an unfit president, and that many people think that would be inappropriate when of course it is not. He said it is perfectly legitimate and should be done more often to impeach a president simply because his behavior renders him unfit for office. Timothy Sandefur on The Libertarian Constitution (2021)
He described amending their Constitution to add to the original language—treason, bribery, or other high crimes and misdemeanors—the phrase “or other behavior that renders them unfit for office.” He said there is no reason presidents should not have to mind that people are watching their behavior and keep within the boundaries of propriety. Under the theory that was circulating, he said, a president could have just left the country, moved to Sweden, and refused to answer his telephone, and then he could not be impeached because he had not committed any kind of crime—which he called ludicrous. Timothy Sandefur on The Libertarian Constitution (2021)
Zadek asked whether it would require behavior as president or whether pre-election behavior would count. Sandefur said pre-election behavior is a perfectly legitimate target and their language would allow a president to be impeached for it. Zadek asked whether a president could take the oath and then have impeachment proceedings start on the way off the platform, and Sandefur said yes, adding that he thought it would be a healthier nation if we did that. Timothy Sandefur on The Libertarian Constitution (2021)
Across episodes: the standard and its reform
The topic appears in four episodes spanning 2014 to 2021. In the 2014 and 2018 episodes, Healy developed the historical argument that high crimes and misdemeanors does not require a crime, drawing on Pickering, Chase, and the Mason-Madison exchange; the 2019 episode restated that framework and added the law-versus-politics distinction. The 2021 episode with Sandefur moved from interpretation to amendment, proposing to add unfitness for office as an explicit ground. The excerpts show a shift from defending the original standard’s breadth to proposing that it be rewritten.
What the sources do not cover
The excerpts do not state the outcome of the Blount impeachment, the full Senate vote in the Chase trial beyond the four-vote margin, or the specific articles adopted against any modern president. They do not give the text of any statute or the holding of any case. The excerpts also do not state whether Sandefur’s proposed amendment was adopted or how it was received.