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Other High Crimes and Misdemeanors

Article II. Section. 4. Of the United States Constitution states:

“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.”

When most people think about the term “high Crimes and Misdemeanors”, they are often confused or unknowing of the meaning of the modifier ‘high’. They also make the mistake of misconstruing the conjunction ‘and’, as the proper interpretation should be ‘High Crimes or High Misdemeanors’. The question is then, what do the terms ‘High Crimes’ and ‘High Misdemeanors’ mean.

In the article, “What does ‘high crimes and misdemeanors’ mean?” by Joseph M. Bessette and Gary J. Schmitt, they provide three Key Points of what they believe about the Constitutions meaning of impeachment:

“The framers did not give an extended explanation of what constitutes “high crimes and misdemeanors.” However, through an analysis of the text of the Constitution, the Constitutional Convention, the ratification debates, and British and American impeachment precedents, it is possible to reach a broad understanding of what behavior is covered by those terms.

The key to unlocking that understanding in the case of the presidency is that the office is one of powers whose ends and limits are fixed by a specific set of duties. High crimes and misdemeanors are not limited to actual crimes but extend to an abuse or violation of the public trust in carrying out those duties.

By judging the actions of executive and judicial officials against the standard of their constitutional duties and broad public responsibilities, the impeachment process serves three great ends: It removes from office those who have forfeited their right to serve, protecting the public from further depredations; it induces others to act in accord with their high public responsibilities; and it provides the citizenry with a vital lesson in the principles of constitutional democracy.”

In the article, “The Original Meaning of "High Crimes and Misdemeanors" by Michael Stokes Paulsen, he states:

“Here’s the key point in summary: the evidence of original meaning overwhelmingly supports the conclusion that, at the time of the framing of the U.S. Constitution, the composite term “high Crimes and Misdemeanors” was a well-established, familiar legal term of art that the framers consciously borrowed from longstanding English practice and usage dating back four centuries. That meaning was not so much “vague” as simply broad: a sweeping delegation of power and responsibility to the legislative bodies entrusted with the impeachment power. The term “high Crimes and Misdemeanors” had a broad meaning in English practice and in the American understanding, confiding to the two houses of the national legislature (under the U.S. Constitution, the House and the Senate, exercising their respective roles in the impeachment process) a sweeping range of power to punish what those political bodies determined to be misconduct or abuse of power by executive and judicial officers of a wide variety of types.”

In another article, “New Evidence on the Constitution’s Impeachment Standard: “high . . . Misdemeanors” Means Serious Crimes” by Robert G. Natelson, he takes a narrower approach to impeachments as requiring criminal actions:

“The constitutional phrase “high misdemeanors” means non-capital, but serious, crimes, whether statutory or at common law, state or federal. “High misdemeanors” is a higher standard than abuse of power, violation of the public trust, or disregard of the national interest—even though, of course, criminal behavior may breach those standards as well.”

He found that “high misdemeanors” encompassed treason, other felonies, and also crimes that were serious, but not so serious that they merited the death penalty, as felonies usually did. High misdemeanors that were not felonies were punished with incarceration, stiff fines, and the pillory. Examples of high misdemeanors that were not felonies were bribery, assault, and attempted murder.

However, he also notes that other interpretations are possible:

“Each interpreted the impeachment standards somewhat differently. Professor Jonathan Turley advocated the most exacting test. He argued that high misdemeanors are acts that “reach a similar level of gravity and seriousness” as criminal activity. Professor Noah Feldman defined high crimes and misdemeanors as comprising “abuses of power and public trust connected to the office of the presidency.” Professor Michael Gerhardt contended that high crimes and misdemeanors encompassed, among other infractions, political crimes, abuse of power, breaches of the public trust and “serious injuries to the Republic.” Professor Pamela S. Karlan argued that subverting an election and disregarding the public interest were both impeachable offenses.”

Professor Jonathan Turley, in his article “No, President Biden Should Not Be Impeached For Lax Border Security”, relates impeachment to President Biden’s actions and inactions on Illegal Immigration on the southern border:

“An impeachment over the border crisis would be based on a type of maladministration or negligence theory. The danger of such a broad, ill-defined standard is obvious. It would convert the impeachment clause into a type of vote of no confidence and allow the removal of a president whenever the opposing party gains enough votes in the two houses. That is why I previously disagreed with calls for impeachment over Afghanistan and other such debacles. It is also the reason the Framers rejected these broader standards.”

As can be seen from the above excerpts and from the articles hyperlinked at the end of this article, there is much scholarly dispute as to the meaning of the term “high Crimes and Misdemeanors” in the Constitution.

My own opinion is that if we restrict high Crimes and Misdemeanors to only actual crimes, we run the risk of a President who does not faithfully execute the laws as passed by Congress or ignores Supreme Court rulings. Under this situation, the President is not keeping their Oath of Office to “…faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

It is true that all Presidents have exceeded their authorities or interpreted their authorities beyond what many would consider propriety. However, these excesses have not often been so serious as to call into question the republican nature of our government, nor the dissolution of the balance of powers between the Executive, Legislative, and Judicial Branches of our government. It is only when these issues arise that we need to consider the removal of a President by impeachment and conviction under the interpretation of abuse or dereliction of duty as “high Crimes and Misdemeanors”. To not do so would allow a lawless President to govern, which is antithetical to our Constitution. Such impeachment and conviction are never to be done lightly as this would also be antithetical to our Constitutional ideas. We would also run the risk of a President who would merely serve at “the pleasure of the Senate”, as noted by James Madison in the debate on the impeachment clause of the Constitution. However, this risk must be balanced out by the risk of losing our Constitutional Republic to a lawless President.

Therefore, I could support the impeachment and conviction of a President for violating their Oath of Office, but only under the extraordinary circumstances in which the President endangers our Constitutional Republic by their actions or inactions.

The four articles that I utilized in the creation of this Article can be read at:

While they all are longish articles, they are well worth the read to fully understand Constitutional Impeachment.