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, or, as Hamilton defined, “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”  

Notably, Webster’s 1828 dictionary defines “misdemeanor” broadly:


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, impeachment becomes 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 (nonfeasance) is a high crime—perhaps the ultimate.  Nonfeasance was one of the charges against King George by the American colonists: “He has abdicated Government here by declaring us out of his Protection.” According to our Declaration of Independence, failure to protect all persons, equally, in their unalienable rights is the basis for revolution—so of course it is a crime worthy of removal from office.

In the interest of preserving a government based on the ideals of the Declaration of Independence, anything is impeachable, if Congress so determines. The House has sole discretion in this area. The Senate then considers removal, at a high threshold of 2/3rds of that body.  If we don’t like their result, the remedy is in our hands at the ballot box.

The founders enacted this process for a reason: to preserve the republic with a layer of accountability. Impeachment power was designed to be used, not ignored. 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 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.” (Federalist 65, emphasis added)  This was the unavoidable consequence of placing the sole power of removal in the Senate: “[T]he demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.”  (Ibid.)  Yet the founders thought it worth the risk.  Better to over-use impeachment than perish from its lack or under-use.  As delegate Hugh Williamson said in the convention’s impeachment debate, “there was more danger of too much lenity, than of too much rigor, towards the President.”

Indeed, 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 much more common—in order to fulfill its design as a continuous threat that keeps civil servants in check.  

 

 


Updated 1-31-2020

Siena Hoefling
sienahoefling@gmail.com
Siena Hoefling is the Executive Director for Equal Protection for Posterity

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