high crimes and misdemeanors

is conduct which the Constitution established --- beyond serious dispute --- to extend far beyond mere criminal conduct. Why? Because any standard permitting the removal of presidents only for indictable crimes would leave the nation defenseless against the most dangerous kinds of presidential behavior.

The history of the phrase “high crimes and misdemeanors” and of how it entered our Constitution establishes beyond serious dispute that it extends far beyond mere criminal conduct. The practical reasoning is in some ways more important: A standard that permitted the removal of presidents only for indictable crimes would leave the nation defenseless against the most dangerous kinds of presidential behavior.

is intentionally open (or vague), because it recognizes that one never knew in advance what form the royal urge to autocracy might take or what sort of devilry corrupt or ambitious officials might be up to.

Great Britain has never had a written constitution. And Parliament has never sat down to write an impeachment statute with a neat definition of the behavior that could get a royal minister impeached. Rather, Parliament has carefully kept impeachment open-ended, recognizing that one never knew in advance what form the royal urge to autocracy might take or what sort of devilry corrupt or ambitious officials might be up to.

is a term whose usage dates back to 1386 and has been used to impeach a great many officials for a wide variety of misconduct which wasn’t technically criminal.

Over the centuries, Parliament impeached a good many people for a wide variety of misconduct. When it did, the articles of impeachment tended to describe the defendant’s behavior as “high crimes and misdemeanors,” a usage that dates back to 1386. Critically, a great deal of the misconduct Parliament deemed impeachable wasn’t criminal at all, at least in the sense of violating any preexisting criminal statute or constituting any judge-created common-law crime. I could provide examples in eye-glazing antiquarian detail. Suffice it to say that Parliament has impeached high officials for military mismanagement (Lord Latimer, 1376; the Earl of Suffolk, 1386; the Duke of Buckingham, 1626; and the Earl of Strafford, 1640), neglect of duty or sheer ineptitude (Attorney General Henry Yelverton; Lord Treasurer Middlesex, 1624; the Earl of Clarendon, 1667; Lord Danby, 1678; and Edward Seymour, treasurer of the Navy, 1680), and giving the sovereign bad advice, especially about foreign affairs (William de la Pole, 1450; Lords Oxford, Bolingbroke, and Strafford, 1715).

is the basis of a great many impeachments for noncriminal abuse of power, Warren Hastings in 1787 being a prime example.

Parliament has also impeached a good many officers for abuse of power, sometimes criminal, but oftentimes not. When the Constitutional Convention convened in Philadelphia in the summer of 1787, the English-speaking world was riveted by the commencement of impeachment proceedings against Warren Hastings, governor general of Bengal, on just such grounds. Few if any of the charges against Hastings were indictable crimes, but that was immaterial to Edmund Burke, the principal parliamentary prosecutor of Hastings. He said the charges “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”

is by no means limited only to technical crimes. Sometimes a high crime and misdemeanor is not a crime against forms, but against those eternal laws of justice, which are our rule and our birthright: offenses not in formal, technical language, but in reality, in substance and effect.

Edmund Burke, the principal parliamentary prosecutor of Hastings. He said the charges “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”

is a phrase not unfamiliar to the founders because the American colonies and the early state governments had conducted impeachments of their own for acts that were non-criminal.

Americans of the founding generation were familiar with the phrase “high crimes and misdemeanors” not merely because they were close students of the parliamentary history of the mother country, but also because both the American colonies and the early state governments had conducted impeachments of their own. For example, in 1774, just before the American Revolution, the Massachusetts colonial assembly impeached Chief Justice Peter Oliver for “certain High Crimes and Misdemeanors.” His offense? The decidedly noncriminal act of agreeing to accept a royal salary rather than the stipend appropriated by the Massachusetts legislature. The Oliver impeachment was a cause célèbre in both England and the colonies. John Adams is often credited with the idea of impeaching the judge. Among those voting to impeach Oliver were Sam Adams and John Hancock, as well as Nathaniel Gorham, who in 1787 was a delegate to the Constitutional Convention and chaired its early deliberations.

is a sturdy, familiar concept that was accepted into the Constitution as a compromise to George Mason between the overly limiting “treason or bribery” and the overly broad “maladministration”.

The phrase “high Crimes and Misdemeanors” entered the American Constitution because George Mason of Virginia was unhappy that, as the Constitutional Convention was drawing to a close, the class of impeachable offenses had been limited to “treason or bribery.” Mason wanted a much broader definition. He illustrated his point by arguing that Hastings’s offenses would not be covered by the proposed skimpy language. Mason’s first suggested addition—“maladministration”—was thought too expansive, whereupon he offered, and the convention accepted, that sturdy old English term of art “high Crimes and Misdemeanors.”

is a phrase that is at once flexible (because it requires case-by-case consideration), and also it offers 400 years of guidance in the form of prior practice with the term on which one could rely in identifying the kinds and degrees of misbehavior that ought to be impeachable.

The beauty of “high Crimes and Misdemeanors” from the perspective of the men of 1787 was that it provided both flexibility and some measure of guidance. Flexibility because it plainly pointed to the parliamentary practice of defining impeachable conduct on a case-by-case basis. Guidance because it incorporated, by reference, 400 years of prior practice on which one could rely in identifying the kinds and degrees of misbehavior that ought to be impeachable.

high crimes and misdemeanors, n.All

high crimes and misdemeanors