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High Crimes and Misdemeanors

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Part of The Constitution and the courts.

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Every episode (3)

Who argued it

Gene Healy ×2 · John Rothmann

Donald Trump · Constitutional Law · Executive Power · Impeachment

Background

The constitutional phrase

Article II, Section 4 provides that the President, Vice President, and all civil officers of the United States shall be removed on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Gene Healy, Vice President at the Cato Institute, told Bob Zadek that most of the interpretive debate centers on that last phrase, which carries several centuries of history before the drafting of the U.S. Constitution Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

Zadek raised the canon of construction under which the words following treason and bribery must be like treason or bribery. Healy accepted the canon but said one must still decide what it means to be like treason or bribery, asking whether it requires that the official be in the pay of a foreign government. He concluded that the Founders did not read the language that narrowly Which Impeachment Movie Are You Watching? (2019).

Not a criminal process

Healy’s central claim is that impeachment is not a criminal process and does not require a crime. He noted that high crimes and misdemeanors in British law did not have to be statutory violations, and that if the phrase had required a technical violation of a federal criminal statute, impeachment would have been a useless remedy at the outset, since 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 pressed the point with a parlor game: at ratification there were only three federal crimes, so a president could only have been impeached for treason, counterfeiting, or piracy. He observed that only three presidents in American history were seriously exposed to impeachment, and none was convicted in the Senate, leaving a dearth of precedent Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

Healy described impeachment as part legal and part political. The legal part requires a theory of what the phrase means; the political part involves prudential and partisan judgments once an offense is found impeachable. He cited obstruction of justice as an impeachable offense, noting that Richard Nixon faced articles of impeachment for it and Bill Clinton was impeached for it, while the Senate decided in the Clinton case that removal was not warranted Which Impeachment Movie Are You Watching? (2019).

The early cases

Healy directed attention to the first three impeachment cases: Senator William Blount in 1797, federal judge John Pickering in 1803, and Associate Justice Samuel Chase the next year. Only one of the three involved anything that could arguably be called a crime. Pickering, the first to result in conviction and removal, was impeached for showing up to work drunk and ranting from the bench Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

Zadek put Pickering’s impeachment in 1804, noting that being drunk was not a crime before Prohibition, and that the Founders were still alive and kept any objection to themselves Which Impeachment Movie Are You Watching? (2019).

Chase, impeached in 1804 and tried in 1805, escaped removal by four votes. His offenses consisted largely of being an openly partisan Federalist from the bench, including a grand jury charge against Jeffersonian Republicans. Healy said none of this was a crime, but the Jeffersonians thought it demonstrated Chase’s unfitness to serve Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

From these cases Healy drew the conclusion that high crimes and misdemeanors are behaviors demonstrating unfitness for office and a violation of the public trust, not grave betrayals on the order of a treason conviction Which Impeachment Movie Are You Watching? (2019).

Maladministration and the Convention

Zadek asked whether Healy belonged to the George Mason camp favoring a lower standard. Healy recounted the exchange at the Constitutional Convention in which Mason, citing the Warren Hastings trial in England, proposed adding maladministration to treason and bribery; Madison objected that it was too broad, and the convention settled on high crimes and misdemeanors Which Impeachment Movie Are You Watching? (2019).

Healy argued that people make too much of that exchange, since Madison’s notes were not revealed for at least fifty years and nobody who ratified the Constitution saw it. He noted that Madison himself later said certain kinds of maladministration are impeachable, and concluded that the standard properly understood includes some forms of gross mismanagement, though not ordinary negligence Which Impeachment Movie Are You Watching? (2019).

Healy also compared impeachment to the replacement of a head of government in a parliamentary system, saying it is not a tragedy for the country when the chief executive is replaced. Zadek responded that the difference is that a prime minister is not directly elected by the people, so impeachment undoes the will of the people Which Impeachment Movie Are You Watching? (2019).

Across episodes

The topic recurs across four episodes, with Gene Healy as the constant guest in three of them and Timothy Sandefur in the fourth. The early treatment stresses that the standard is broad and that impeachment is not a criminal process; the later treatment adds a proposal to amend the Constitution explicitly. In the 2021 episode, Sandefur said he and his co-authors thought the original Constitution was fine but that misconceptions had grown up around impeachment, and that there should be far more impeachment than America has ever had, of judges as well as presidents Timothy Sandefur on The Libertarian Constitution (2021).

Sandefur said their amended text adds to treason, bribery, or other high crimes and misdemeanors the phrase “or other behavior that renders them unfit for office.” He offered the hypothetical of a president who moved to Sweden and refused to answer his telephone, who could not be impeached under a crime-requirement theory. Asked by Zadek whether pre-election behavior would qualify, Sandefur said it would, and that a president could be impeached on the way off the platform after taking the oath Timothy Sandefur on The Libertarian Constitution (2021).

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