ArtII.S4.2.2 Impeachable Offenses: Historical Background

Article II, Section 4:

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.

The concept of impeachment and the standard of high crimes and misdemeanors1 originally stems from English Parliamentary practice. 2 The House of Commons impeached and tried before the House of Lords both private citizens and government officers, but not the Crown itself, for offenses considered beyond the reach of the common-law criminal courts. 3 The tool was used by Parliament to corral the power of the Crown and police political offenses committed by ministers and favorites of the King. 4 Impeachment applied to conduct that damaged the state or subverted the government. 5 The standard of high crimes and misdemeanors appears intended to address conduct involving an individual's abuse of power or office. 6 Punishment for a conviction could include a range of penalties, including imprisonment, fines, or even death. 7

The American colonies adopted their own impeachment procedures that informed the Framers' understanding of impeachment. 8 These traditions extended into state constitutions established during the early years of the Republic. During the years of 1776-1787, states adopted into their constitutions impeachment provisions that limited impeachment to government officials and restricted the punishment for impeachment to removal from office with the possibility of future disqualification from office. 9 At the state level, the body charged with trying an impeachment varied. 10

The standards for impeachments adopted at the Constitutional Convention were thus inspired by both English and colonial practice, but ultimately differed in structure from both these traditions. In particular, the Framers aimed to narrow the scope of impeachable offenses and persons subject to impeachment as compared to English practice. 11 For example, while according to English practice at the time of the Constitution's enactment, impeachment extended to anyone except a member of the royal family, the federal Constitution limited impeachment to federal government officers (including the President and Vice President). 12 In addition, whereas the English Parliament never formally defined the parameters of what counted as impeachable conduct, the Framers restricted impeachment to treason, bribery, and high crimes and misdemeanors. 13 In English practice, the Crown could pardon individuals following an impeachment conviction. 14 In contrast, the Framers restricted the pardon power from being applied to impeachments, rendering the impeachment process essentially unchecked by the executive branch. 15

The Framers also rejected a proposal made during the Constitutional Convention to include – in addition to treason and bribery 16maladministration as an impeachable offense, which would have presumably incorporated a broad range of common-law offenses. 17 Although maladministration was a ground for impeachment in many state constitutions at the time of the Constitution's drafting, 18 the Framers instead adopted the term high Crimes and misdemeanors from English practice. James Madison, at the Constitutional Convention, objected to the inclusion of maladministration as grounds for impeachment because such a vague impeachment standard would be equivalent to a tenure during pleasure of the Senate.19 Immediately thereafter, the Convention voted to include high crimes and misdemeanors instead. 20 Arguably, the Framers' rejection of such a broad term supports the view that congressional disagreement with a President's policy goals is not sufficient grounds for impeachment. 21

Of particular importance to the understanding of the practice in America were the roughly contemporaneous British impeachment proceedings of Warren Hastings, the governor general of India, which were transpiring at the time of the Constitution's formulation and ratification. 22 Hastings was charged with high crimes and misdemeanors, which included corruption and abuse of power. 23 At the Constitutional Convention, George Mason positively referenced the impeachment of Hastings. At that point in the Convention, a proposal to define impeachment as appropriate for treason and bribery was under consideration. George Mason objected, noting that treason would not cover the misconduct of Hastings. 24 Moreover, he thought impeachment should extend to attempts to subvert the Constitution.25 Accordingly, he proposed that maladministration be included as an impeachable offense, although, as noted above, this was eventually rejected in favor of high crimes and misdemeanors.26

The Framers thus ultimately considered impeachment to be an essential tool to hold government officers accountable for political crimes. 27 The representatives of the people were best placed to investigate the conduct of public men.28 Moreover, impeachment is an essential bulwark in the separation of powers for the legislature against the power of the executive and judicial branches. The President enjoys the power to appoint – with Senate approval – officers of the United States in the executive and judicial branches, as well as the authority to remove those in the executive branch. 29 Judicial officers, once appointed, maintain their positions for life. 30 Consequently, Congress's power of impeachment serves as a crucial legislative check on the potential encroach[ing] power of executive branch officers 31 and likewise guards against judicial usurpations on the authority of the legislature.32

Evidence of precisely what conduct the Framers and Ratifiers of the Constitution considered to constitute high crimes and misdemeanors is relatively sparse. At the North Carolina ratifying convention, James Iredell, later to serve as an associate Justice of the Supreme Court, noted the difficulty in defining what constitutes an impeachable offense, beyond causing injury to the government. 33 For him, impeachment was calculated to bring [offenders] to punishment for crime which is not easy to describe, but which every one must be convinced is a high crime and misdemeanor against government. [T]he occasion for its exercise will arise from acts of great injury to the community.34 He thought the President would be impeachable for receiving a bribe or act[ing] from some corrupt motive or other,35 but not merely for want of judgment.36 Similarly, Samuel Johnston, then the governor of North Carolina and later the state's first Senator, thought impeachment was reserved for great misdemeanors against the public.37

At the Virginia ratifying convention, a number of individuals claimed that impeachable offenses were not limited to indictable crimes. 38 For example, James Madison argued that were the President to assemble a minority of states in order to ratify a treaty at the expense of the other states, this would constitute a impeachable misdemeanor.39 And Virginia governor Edmund Randolph, who would later become the nation's first Attorney General, noted that impeachment was appropriate for a willful mistake of the heart, but not for incorrect opinions. 40 In addition, Randolph argued that impeachment was appropriate for a President's violation of the Foreign Emoluments Clause, which, he noted, guards against corruption. 41

James Wilson, delegate to the Constitutional Convention and later a Supreme Court Justice, delivered talks at the College of Philadelphia following the adoption of the federal Constitution concerning impeachment. He claimed that impeachment was reserved to political crimes and misdemeanors, and to political punishments.42 He argued that, in the eyes of the Framers, impeachments did not come within the sphere of ordinary jurisprudence. They are founded on different principles; are governed by different maxims; and are directed to different objects.43 Consequently, for Wilson, the impeachment and removal of an individual did not preclude a later trial and punishment for a criminal offense predicated on the same behavior. 44

At the time of ratification of the Constitution, the phrase high crimes and misdemeanors thus appears understood to have applied to uniquely political offenses, or misdeeds committed by public officials against the state. 45 Alexander Hamilton, in explaining the Constitution's impeachment provisions, described impeachable offenses as arising from the misconduct of public men, or in other words from the abuse or violation of some public trust.46 Such offenses were Political, as they relate chiefly to injuries done immediately to the society itself.47 In the centuries following the Constitution's ratification, precisely what behavior constitutes a high crime or misdemeanor has been the subject of much debate. 48

Footnotes

  1.  Jump to essay-1For more on the historical background of the impeachment clauses, ArtIII.S1.2.1.2Good Behavior Clause: Historical Background; ArtI.S2.C5.1.2The Power of Impeachment: Historical Background; ArtI.S3.C6.1.2The Power to Try Impeachments: Historical Background.
  2.  Jump to essay-2See The Federalist No. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961); Raoul Berger, Impeachment: The Constitutional Problems 54 (1973); H. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 4 (Comm. Print 1974) [hereinafter Constitutional Grounds].
  3.  Jump to essay-3Berger, supra note 2, at 59; Constitutional Grounds, supra note 2, at 4. The availability of impeachment in England appears to have depended on whether the offense endangered the government or society. See Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805 3 (1984).
  4.  Jump to essay-4Constitutional Grounds, supra note 2, at 4–5.
  5.  Jump to essay-5Id. (citing John Rushworth, The Tryal of Thomas Earl of Stafford, in 8 Historical Collections 8 (1686)).
  6.  Jump to essay-6Id. at 4–6.
  7.  Jump to essay-7Berger, supra note 2, at 67.
  8.  Jump to essay-8See Hoffer & Hull, supra note 3, at 15–26.
  9.  Jump to essay-9See id. at 68–95; see, e.g., Mass. Const. of 1780 § 2, art. VIII; § 3, art. VI; New York Const. of 1777 art. XXXIII.
  10.  Jump to essay-10See Gordon S. Wood, The Creation of the American Republic 141 (1969); see, e.g., N.Y. Const. of 1777 arts. XXXII–XXXIII (providing that impeachments be tried before a court composed of Senators, judges of the Supreme Court, and the chancellor).
  11.  Jump to essay-11See Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 908–12 (1999).
  12.  Jump to essay-1215 The American and English Encyclopedia of Law 1061, 1064 (David S. Garland & Lucius P. McGehee eds., 1900).
  13.  Jump to essay-13Id. at 1066 (David S. Garland & Lucius P. McGehee eds., 1900). Further, the English House of Lords could convict on a bare majority, while the Framers required a two-thirds vote of the Senate to remove an officer. Id. at 1071. The House of Lords could also require any punishment upon conviction, while the federal Constitution limits the results of impeachment to removal from office and, potentially, disqualification from holding federal office in the future. Id. at 1072. Finally, British judges could be removed for a variety of reasons, while impeachment is the sole remedy to remove federal judges under the Constitution.
  14.  Jump to essay-1415 The American and English Encyclopedia of Law, supra note 12, at 1071–72.
  15.  Jump to essay-15See U.S. Const. art. II, § 2, cl. 1 (providing that the President shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment).
  16.  Jump to essay-162 James Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 508 (Gaillard Hunt & James Brown Scott eds., 1987).
  17.  Jump to essay-172 The Records of the Federal Convention of 1787, at 550 (Max Farrand ed., 1911); see Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 14–15 (1989).
  18.  Jump to essay-18Gerhardt, Constitutional Limits, supra note 17, at 29; Constitutional Grounds, supra note 2, at 11; Charles Black, Impeachment 29 (1974).
  19.  Jump to essay-192 Records of the Federal Convention of 1787, supra note 17, at 550; Black, supra note 17, at 29–30.
  20.  Jump to essay-202 Records of the Federal Convention of 1787, note 17, at 64–65; Black, supra note 17, at 28.
  21.  Jump to essay-21Black, supra note 17, at 30.
  22.  Jump to essay-22Constitutional Grounds, supra note 2, at 7; Hoffer & Hull, supra note 3, at 113–15.
  23.  Jump to essay-23Constitutional Grounds, supra note 2, at 7; Hoffer & Hull, supra note 3, at 113–15.
  24.  Jump to essay-242 The Records of the Federal Convention of 1787, note 17, at 550.
  25.  Jump to essay-25Id.
  26.  Jump to essay-26See supra ArtII.S4.2.2Impeachable Offenses: Historical Background and accompanying notes.
  27.  Jump to essay-27See The Federalist No. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  28.  Jump to essay-28Id.
  29.  Jump to essay-29U.S. Const. art. II, § 2, cl. 2.
  30.  Jump to essay-30Id. art. III, § 1.
  31.  Jump to essay-31See The Federalist No. 66 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  32.  Jump to essay-32See Id. No. 81.
  33.  Jump to essay-33See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 19 (2000).
  34.  Jump to essay-344 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 113 (Jonathan Elliot ed., 1827) [hereinafter Elliot's Debates] (North Carolina, statement of James Iredell).
  35.  Jump to essay-35Id. at 127.
  36.  Jump to essay-36Id. at 126.
  37.  Jump to essay-37Id. See Gerhardt, supra note 33, at 19.
  38.  Jump to essay-38See id..
  39.  Jump to essay-391 Elliot's Debates, supra note 34, at 500.
  40.  Jump to essay-402 id. at 401.
  41.  Jump to essay-41David Robertson, Debates and Other Proceedings of the Convention of Virginia 345 (2d ed. 1805).
  42.  Jump to essay-42James Wilson, Lectures on Law, reprinted in, 1 The Works of James Wilson 426 (Robert Green McCloskey ed., 1967).
  43.  Jump to essay-43Id. at 408.
  44.  Jump to essay-44Id.
  45.  Jump to essay-45Gary L. McDowell, High Crimes and Misdemeanors: Recovering the Intentions of the Founders, 67 Geo. Wash. L. Rev. 626, 638 (1999); Berger, supra note 2, at 59–61.
  46.  Jump to essay-46The Federalist No. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  47.  Jump to essay-47Id.
  48.  Jump to essay-48Compare H.R. Rep. No. 105-830, at 110–18 (1998) (majority views), with id. at 204 (minority views). See Gary L. McDowell, High Crimes and Misdemeanors: Recovering the Intentions of the Founders, 67 Geo. Wash. L. Rev. 626, 627 (1999); Laurence H. Tribe, Defining High Crimes and Misdemeanors: Basic Principles, 67 Geo. Wash. L. Rev. 712, 717 (1999).