The Personal Website of Mark W. Dawson
Containing His Articles, Observations, Thoughts, Meanderings,
and some would say Wisdom (and some would say not).
Impeachment Hearings III - High Crimes and Misdemeanors
Most Americans believe they understand the meaning of “High crimes and Misdemeanors” but they do not understand what our Founding Father meant by this term. And our Founding Fathers' understanding of this phrase is important so as to determine if an impeachable offense has occurred. High crimes and Misdemeanors was first used (and misused) in Britain in the latter half of the 14th century as explained by the Wikipedia article on “High crimes and Misdemeanors”:
“The impeachment of the King's Chancellor, Michael de la Pole, 1st Earl of Suffolk in 1386 was the first case to use this charge. One charge under this heading alleged that de la Pole broke a promise to Parliament to follow the advice of a committee regarding improvement of the kingdom. Another charge said that because he failed to pay a ransom for the town of Ghent, the town fell to the French.
The 1450 impeachment of William de la Pole, 1st Duke of Suffolk, a descendant of Michael, was the next to allege charges under this title. He was charged with using his influence to obstruct justice as well as cronyism and wasting public money. Other charges against him included acts of high treason.
Impeachment fell out of use after 1459, but Parliament revived it in the early 17th century to try the King's ministers. In 1621, Parliament impeached the King's Attorney General, Sir Henry Yelverton for high crimes and misdemeanors. The charges included failing to prosecute after starting lawsuits and using authority before it was properly his.
After the Restoration the scope of the charge grew to include negligence, and abuse of power or trust while in office. For example, charges in the impeachment of Edward Russell, 1st Earl of Orford in 1701 included many violations of trust in his positions. In this case, he abused his position in the Privy Council to make profits for himself; as Treasurer of the Navy he embezzled funds; and as Admiral of the Fleet he got a commission for the pirate William Kidd.”
English Common Law was utilized to determine High crimes and misdemeanors, but it was defined very vaguely, so vaguely that is was often misconstrued and used inappropriately. Our Founding Fathers were well aware of this, but they had an understanding based on a famous law book as stated below:
“Sir William Blackstone, in his famous 1765 treatise, Commentaries on the Laws of England – the most widely possessed and read law book in America at the time of the framing of the Constitution and a respected resource of many of the Constitution’s framers – discussed ordinary criminal law and impeachment proceedings separately, in different sections of the fourth book of his epic treatise. While the province of impeachment and the province of the criminal law both involved punishment for “Public Wrongs” – and both employed the words “crimes” and “misdemeanors” – impeachment involved public wrongs of a distinctly different sort. Book IV divides the treatment of different types of public wrongs into numerous subheadings. The terms “crimes” and “misdemeanors” are set forth as general descriptors for public wrongs in Chapter 1. But successive chapters then deal separately with different specific types of offenses.
Significantly, wrongs punishable by impeachment are discussed distinctly in Chapter 9, entitled “Of Misprisions and Contempts, affecting the King and Government.” There, Blackstone employed the term “high misdemeanors” in a specialized sense. The “first and principal” illustration of “high misdemeanors,” Blackstone wrote, is “the mal-administration of such high officers, as are in public trust and employment. This is usually punished by the method of parliamentary impeachment.”
Keep Blackstone’s identification of “high misdemeanors” with “mal-administration” of high officers in mind. It comes back around in the Constitutional Convention’s discussion of the language that ultimately became the Constitution’s impeachment standard.
Chapter 10, entitled “Of Offences against Public Justice” describes another set of offenses punishable by impeachment: the “negligence of public officers, entrusted with the administration of justice.” Blackstone condemns, in strong terms, a particular “offence against public justice, which is a crime of deep malignity,” and especially so because “there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution.” That offence is “the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office.” All such offences against public justice could be prosecuted “either by impeachment in parliament” or, depending upon the rank of the offender, “by information in the court of king’s bench.” Such misconduct was “sure to be severely punished” with penalties including forfeiture of office.
Again, in Chapter 19, Blackstone distinguished among “Courts of a Criminal Jurisdiction” and referred to the jurisdiction of parliamentary impeachment as concerned with “high misdemeanors” committed by high officials or peers:
For, though in general the union of the legislative and judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either dares not or cannot punish.
The upshot is clear: As a matter of English practice and authoritative commentary by the mid eighteenth century, impeachment embraced offenses involving official misconduct not necessarily punishable by the ordinary criminal law.”
My comment on this is at the time of the adoption of the U.S. Constitution the only definitive answer to the question of “What constitutes Treason, Bribery, and High crimes and misdemeanors?” is the answer on treason. Treason is defined in the U.S. Constitution as:
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Nowhere in the Constitution is Bribery or High crimes and misdemeanors defined. There were no Federal Statutes defining “bribery” at the time the Constitution was adopted, as the statutes had not yet been written. And to utilize today’s statues on bribery would lead to a misinterpretation of what the Founding Fathers meant by impeachable bribery. And to this day there are no statutes regarding "High crimes and misdemeanors”. Therefore, we need to examine what the Founding Fathers understood what was “Bribery, and High crimes and misdemeanors” to determine if an impeachable offense occurred.
I am no legal or historical scholar and, therefore, it would be inappropriate for me to comment on the historical or legal interpretation of what constitutes “Treason, Bribery, and High crimes and misdemeanors?” I have, however, read books and many articles on this topic. For an excellent legal and historical perspective on this subject, I would recommend that you read Professor Jonathan Turley’s written “House Testimony on Impeachment” for an intellectual and reasoned treatise on this subject.
In my article “Justice and the Rule of Law in America” I point out that without the Rule of Law, there can be no Justice. But the Rule of Law requires that several concepts and tenets be enforced for Justice to prosper. These concepts and tenets are “Etched in Stone”. The concepts are; Due Process; Speedy Trial; Presumption of Innocence; Trial by Jury; Burden of Proof on Prosecutor or Plaintiff; and No Burden on Defense, while the tenets are; An Independent Judiciary; Probable Cause; Equality Under the Law; Equal Protection of the Laws; Pursuit of Justice; Pardons and Commutations; Full Faith and Credit; and Contract Law Enforcement. All of these were necessary to preserve Human Rights, Constitutional Rights, Liberty, Freedom, and Equal Justice for All. They are not only appropriate and necessary in judicial proceedings but should be kept in mind in all our non-judicial governmental proceedings.
While impeachment proceedings do not occur in a judicial process the concepts and tenants are applicable, as these concepts and tenants are needed to protect the Human and Constitutional rights of the accused. Without following these concepts and tenants it is all too possible for the questioner to “Attack the Messenger” with baseless, unfounded, incomplete or inaccurate accusations or allegations. It may also allow a witness or expert to make baseless, unfounded, incomplete or inaccurate accusations or allegations against others who are not involved in the process, or do not or cannot have the opportunity to defend themselves. It is also necessary for the accused to avail themselves of these concepts and tenants to be able to refute the charges or justify their actions. Without keeping these concepts and tenants in mind any actions by Congress could be considered a de facto “Bill of Attainder” which is expressly forbidden by the Constitution.
The other issue that I would comment on is the question of whether a crime needs to be committed for impeachment to occur. To that question, I would respond that I do not believe that a crime is necessary for impeachment. However, if a crime was not committed then the offensive must be so egregious, grave or serious as to make the person unfit to lead or serve a people dedicated to liberty and freedom. But this bar must be set high enough to not make impeachment a weapon for political disagreements.
President Gerald Ford was quoted as saying that High crimes and misdemeanors are whatever Congress says it is. But President Ford was not a Constitutional scholar, nor did he appreciate the consequences of adopting such a standard for High crimes and misdemeanors. For if we adopt such a standard then anything a President, Executive Officer, or Justice or Judge does that Congress disapproves of can be impeachable. It would also make impeachment a common recourse for disagreements with the Executive and Judicial branches of government. This could also tie-up governmental actions in impeachment processes, as well as give undo pause to decision making within the Executive and Judicial branches. This would in effect make the Legislative Branch of government superior to the Executive and Judicial branches of government, and the other branches subservient to the whims of Congress, which is not what our Founding Fathers intended.
Impeachment of a President or Vice-President is the most consequential action of a Congress, as it overturns the will of the electorate. Without sound reasoning and popular support of the reasoning of impeachment, it could lead to civil strife. It should never be decided for political reasons, but only for the impeachable harm it may cause to society as Stanford law school professor Pamela Karlan has written about the impeachment clauses (despite her testimony to the House Judiciary Committee):
“The Framers meant for the phrase ‘high crimes and misdemeanors’ to signify only conduct that seriously harms the public and seriously compromises the officer’s ability to continue. If the phrase is given a less rigorous interpretation, it could allow Congress to influence and control the President and the courts.”
Principle often takes us to a place where we would prefer not to be. In the 1868 impeachment of President Andrew Johnson, when sitting in judgment of a president they loathed and despised, seven Republican Senators that are known as the “Republican Recusants” found themselves facing principle. However, they took an oath of office to preserve, protect, and defend the Constitution, and not to the President nor to their constituents. One of the greatest among them, Lyman Trumbull (R-IL) explained his fateful decision to vote against Johnson’s impeachment charges even at the cost of his own career:
“Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes … no future President will be safe who happens to differ with the majority of the House and two-thirds of the Senate … I tremble for the future of my country. I cannot be an instrument to produce such a result; and at the hazard of the ties even of friendship and affection, till calmer times shall do justice to my motives, no alternative is left me…”
Finally, I would like to quote from Professor Jonathan Turley’s written “House Testimony on Impeachment” conclusion:
In this age of rage, many are appealing for us to simply put the law aside and “just do it” like this is some impulse-buy Nike sneaker. You can certainly do that. You can declare the definitions of crimes alleged are immaterial and this is an exercise of politics, not law. However, the legal definitions and standards that I have addressed in my testimony are the very thing dividing rage from reason. Listening to these calls to dispense with such legal niceties, brings to mind a famous scene with Sir Thomas More in “A Man For All Seasons.”
In a critical exchange, More is accused by his son-in-law William Roper of putting the law before morality and that More would “give the Devil the benefit of law!” When More asks if Roper would instead “cut a great road through the law to get after the Devil?,” Roper proudly declares “Yes, I’d cut down every law in England to do that!” More responds by saying “And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
Let us not let our rage influence our reasoning on impeachment, for if we do, I tremble for the future of our country.
Note - I have included the opening testimony to the House Judiciary Committee of Pamela S. Karlan, Noah Feldman, and Michael Gerhardt on this subject for reference purposes. However, I believe that these statements are lacking in reasoned and intelligent discourse (especially as compared to the opening statement of Jonathan Turley), and they are a good example of the problems I have discussed in my Observation on "Political Discourse".