Sat. Jan 25th, 2020

The Life and Liberty Report

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High crimes and misdemeanors

4 min read
Misdemeanor

At the Constitutional Convention, delegates considered the president impeachable for the following reasons:

  • “Misfeasance” (Bedford)
  • “At pleasure [of Congress]” (Sherman)
  • Being “unfit” and corrupt (Mason)
  • Being “Criminal in the eyes of the majority” (Madison & Wilson)
  • “Mal-practice or neglect of duty” (Williamson and Davie)
  • “Malpractices or neglect of duty” (Committee of the whole)
  • “Mal- and corrupt conduct” (Madison)
  • “Incapacity, negligence, or perfidy” (Madison)

In forming the actual language and workings of impeachment, the delegates settled on the British model: “Treason, Bribery, or other high Crimes and Misdemeanors.”

Alexander Hamilton confirmed the convention’s reliance on the British model in Federalist #65. Impeachment was solely the role of Parliament, to hold functionaries under the sovereign king in check. (In the American republic, the people are the sovereign, under God. The president is our impeachable hired servant.)

The British House of Commons once initiated over one hundred impeachments in a thirty-year period. The 1621 attorney general under the king was charged with “high crimes and misdemeanors” for mismanagement of his duties, such as failure to prosecute suits he had commenced. The Earl of Oxford in 1701 was charged with “high crimes and misdemeanors” for “violation of his duty and trust” in exploiting his office for private gain, and for commissioning a person of low character (a pirate) for the navy. Others were charged with “high crimes and misdemeanors” for disregarding Parliament, abusing power, or neglecting duty. The charges were not limited to common law, statute, nor ordinary criminal behavior. (See a history here.)

Based on its historical origin, “high crimes and misdemeanors” refers to the “high crime” of misbehavior in high office, not a codified crime or infraction.

Even Webster’s 1828 dictionary defines “misdemeanor” in a broad manner:


    MISDEME’ANOR, n. Ill behavior; evil conduct; fault; mismanagement.
    1. In law, an offense of a less atrocious nature than a crime. Crimes and misdemeanors are mere synonymous terms; but in common usage, the word crime is made to denote offenses of a deeper and more atrocious dye, while small faults and omissions of less consequence are comprised under the gentler name of misdemeanors.


Surprisingly, Webster’s 1828 defines “crime” more loosely than commonly understood:


    CRIME, n. [L., Gr. , to separate, to judge, to decree, to condemn.]

    1. An act which violates a law, divine or human; an act which violates a rule of moral duty; an offense against the laws of right, prescribed by God or man, or against any rule of duty plainly implied in those laws. A crime may consist in omission or neglect, as well as in commission, or positive transgression. The commander of a fortress who suffers the enemy to take possession by neglect, is as really criminal, as one who voluntarily opens the gates without resistance.

    But in a more common and restricted sense, a crime denotes an offense, or violation of public law, of a deeper and more atrocious nature; a public wrong; or a violation of the commands of God, and the offenses against the laws made to preserve the public rights; as treason, murder, robbery, theft, arson, &c. The minor wrongs committed against individuals or private rights, are denominated trespasses, and the minor wrongs against public rights are called misdemeanors[.]


Secondly, Webster’s 1828 defines “crime” as: “Any great wickedness; iniquity; wrong.”

By this standard, impeachable “crimes” and “misdemeanors” are any immoral act—whether it be swearing, lying, infidelity, exploitation, abusing persons verbally, or anything that would never be tolerated by an employer (in this case, the American people) in their employee (the president). But more seriously, impeachability becomes ever more necessitated with severe neglect of duty or failure to enforce the law to protect “all persons,” as the Constitution requires. Lack of enforcement of the law is the ultimate crime, particularly when it results in the deaths of millions of a nation’s children. But anything is impeachable, if Congress so determines. The House has sole discretion over when to pursue impeachment. The Senate then considers removal, at a high threshold of 2/3rds of that body.

The founders enacted this process for a reason: to preserve the republic with a layer of accountability. At the constitutional convention, delegate Elbridge Gerry “urged the necessity of impeachments”: “a good magistrate will not fear them,” he said. “A bad one ought to be kept in fear of them.” Interestingly, the convention placed no penalty on Congress for misusing impeachment for political advantage. Hamilton in Federalist #65 said, “there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” (Emphasis added) Yet the founders thought it worth the risk. Better to over-use impeachment than to lack the ability to remove a misbehaving civil servant.

Hamilton continued: “What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves?” Wherever impeachment is used, said Hamilton, it acts “as a bridle in the hands of the legislative body upon the executive servants of the government.”

Such a restraint is only possible with boldness, not timidity. Impeachment must be commonplace—a continuous threat that keeps civil servants in check.

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