3

I have searched the internet for a coherent statement of the meaning of “high crimes and misdemeanors”, especially in the context of presidential impeachment. I have not been very successful. Summarizing the findings: the wording came after much argument and was finally just lifted from British law, British law appears to have taken an inclusive view as to what was impeachable (e.g. incompetence, drunkenness, ...), “high” means that offenses target the state (as in high treason).

Beyond that, I have no information. Pathetic. This is partly because most resources I found espoused a very partisan view of this contentious issue (e.g. what does Ann Coulter think in 2018 versus 1998).

Is there any reliable, timeless(I assume that this phrase is an example of “dead constitution”) interpretation? For example, what is a misdemeanor in this context? Presumably not a crime as crimes are separately treated in the phrase.

Some say that impeachment is “what congress wants it to be” but I am inclined not to accept this, especially if an impeachment trial is subject to judicial review (is it?)

I am ready to read so references are welcome.

  • 2
    Shorter answer: It is a political question and not justiciable. – ohwilleke Aug 7 '18 at 2:01
4

Is there any reliable, timeless(I assume that this phrase is an example of “dead constitution”) interpretation?

The Black's Law Dictionary (4th ed.) defines High crimes and misdemeanors (in its entry for Crimes) as

immoral and unlawful acts as are nearly allied and equal in guilt to felony, yet, owing to some technical circumstance, do not fall within the definition of "felony"

(citing U.S. cases).

Also, searching for "High crimes and misdemeanors" at leagle.com displays decisions involving that term. Although I am unsure whether any of the search results elaborates on the definition, one can certainly identify how the term relates to other concepts.

For instance, District of Columbia v. Trump, (Civil No. PJM 17-1596; Jul. 25, 2018) in its footnotes 23 and 31 reproduces a Constitutional provision which mentions the term. Locating where footnote 23 is referenced in the court decision, it reads that that article of the Constitution "already addresses the crime of bribery, making it an impeachable offense". Thus, one can infer that bribery is one example of high crimes and misdemeanors.

Some say that impeachment is “what congress wants it to be” but I am inclined not to accept this

That notion does not seem far-fetched. See Nixon v. U.S., 506 U.S. 224-227 (1993), stating that "On May 10, 1989, the House of Representatives adopted three articles of impeachment for high crimes and misdemeanors.". And, going back to District of Columbia v. Trump ruling, the same paragraph referring to footnote 23 depicts as

"highly unlikely that the Framers would have intended bribery to be both an impeachable offense and, at the same time, an activity Congress could consent to when a foreign government donor is involved"

which reinforces the notion that the Congress can determine --by consenting-- that certain act is not an impeachable offense, and hence not a high crime/misdemeanor either.

One of the main points I intend to make here and in other answers is that legal dictionaries like the Black's Law Dictionary and other free, online resources such as leagle.com can take you far when you need to conduct legal research.

Edited to add reference (per OP's comment 8/10/2018)

Two days after answering this question, libertylawsite.org released an article that provides historical context as well as references on this topic.

  • 1
    These two sources are valuable reference materials and I will consult them in future. However, the specific searches you mention do not seem to add a whole lot of clarity as they are mentions of the phrase without a lot of context. Ideally, we would have a self-contained explanation of the words, with historical context nd a detailed parsing. – abby yorker Aug 7 '18 at 5:57
  • @abbyyorker Maybe the two cases cited in the Black's Law entry provide more context. If no source provides a thorough coverage of the topic, you or someone interested could enrich the definition & context from the number of cases that use the term, and connecting the dots (see in my answer the purported nexus between bribery, impeachable offense, and that term); and possibly submit it for publication in a peer-reviewed Law journal. You know that journals welcome papers discussing a topic for which previous work is scarce or non-existent. – Iñaki Viggers Aug 7 '18 at 12:44
  • 1
    @abbyyorker Interestingly, The Original Meaning of "High Crimes and Misdemeanors" has been posed this morning at libertylawsite.org. The article provides context tracing back to the XVIII century, and it cites references which might be of your interest. – Iñaki Viggers Aug 8 '18 at 13:13
  • 1
    Inaki Viggers this is exactly what I was looking for. In fact, reading the (embarassing) Dershowitz book was a trigger for this question and your reference convincingly debunks it. If you want to phrase as an answer, I will validate it. – abby yorker Aug 10 '18 at 19:56
  • @abbyyorker Done. Glad that helped. – Iñaki Viggers Aug 10 '18 at 20:43
6

This is a non-justiciable political question. See Nixon v. United States, 506 U.S. 224 (1993) (a case involving a federal judge with the surname Nixon, not the U.S. President who resigned on August 8, 1974; Nixon at the time of his conviction and removal from office was a federal district court judge in Mississippi).

In other words, it means whatever the U.S. House of Representatives, in voting on the impeachment, and the U.S. Senate, in trying the impeachment, decides it means.

But, since U.S. Senate trials of Presidential impeachments must be presided over by the Chief Justice of the United States (see U.S. Constitution, Article I, § 3, clause 6), so that particular judge's opinion regarding what it means may have some influence on the proceedings. The procedures aspects of an impeachment set out in that clause states that:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside:

And no Person shall be convicted without the Concurrence of two thirds of the Members present.

  • I wonder what impact the presiding justice can have on the trial. That person is not an elected member of the senate, of course, and this seems to point to some sort of justiciability. But I wonder if the judge's role in the "trial" is anywhere laid out? – abby yorker May 23 at 23:42
  • 1
    @abbyyorker I think they don't actually do much. The Senate, I believe, has all the power to decide how the trial shall proceed, what evidence to allow, how much time to spend on topics, etc. The Chief Justice, I think, mostly acts to administer these decisions, and is largely in a ceremonial position. Clinton's trial (and eventual acquittal) would be a good example. – zibadawa timmy May 23 at 23:46
  • @zibadawa timmy: I wonder if the role of the judge is not created by the judge him(her)self. I guess that in a normal trial, the judge's role is well established and that the role is immense. If the role is not spelled out anywhere for presidential impeachment, wouldn't that role, like everything else, be subject to the partisan politics, in this case of the judge? – abby yorker May 24 at 0:05
1

The notion that an impeachment need not be (to borrow a phrase from a different setting and context) adequately premised is currently the the law of the land. It's been decided in Nixon v US (1993) that impeachments are not justiciable.

However, given the fact that this decision is fairly modern and that its implications have not had any significant legal or historical consequences, it maybe challengeable.

One of the key consideration on which the decision rests is that the Constitution gives the Senate the "sole power" to try all impeachments.

Nixon challenged the applicability of the word "sole" to the determination of whether a matter is justiciable. His challenge was based on 2 considerations.

The court rejected both considerations. However, the reason for rejecting the 2nd of these consideration is demonstrably false.

The court stated

Petitioner also contends that the word "sole" should not bear on the question of justiciability because Art. II, § 2, cl. 1, of the Constitution grants the President pardon authority "except in Cases of Impeachment." He argues that such a limitation on the President's pardon power would not have been necessary if the Framers thought that the Senate alone had authority to deal with such questions. But the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is "[a]n executive action that mitigates or sets aside punishment for a crime." Black's Law Dictionary 1113 (6th ed. 1990). Authority in the Senate to determine procedures for trying an impeached official, unreviewable by the courts, is therefore not at all inconsistent with authority in the President to grant a pardon to the convicted official. The exception from the President's pardon authority of cases of impeachment was a separate determination by the Framers that executive clemency should not be available in such cases.

Thus the only reference given for this determination is a definition in a legal dictionary.

This particular definition (and therefore the rejection) is premised on a wrong fact though.

A Presidential pardon can be given before a trial. For example, Casper Weinberger was pardoned before trial in December of 1992. Nixon v US was heard in October of 1992 and decided in 1993.

This gives room to challenge the decision as a whole.

Unless another reason is discovered for why "sole power to try" takes away the court's power to review constitutionality of this particular act of Congress, Madison v Marbury may apply. And that would give the court the power to further interpret the meaning of "high crimes and misdemeanors."

  • Pardoning before or mid-trial or punishment doesn't change the fact that the pardon hasn't overturned a judgment. It has eliminated the possibility for punishment and the need to render a judgment (accepting the pardon is accepting guilt in the alleged crimes, though in most cases this is just an academic distinction). So in some sense it does usurp the tribunal's function, but there's lots of evidence that this was a permitted feature. The Founders were concerned that the Executive would need such an immediate, overriding clemency power to deal with rebels and restore peace, for example. – zibadawa timmy May 23 at 23:41
  • "The notion that an impeachment need not be (to borrow a phrase from a different setting and context) adequately premised is currently the the law of the land. It's been decided in Nixon v US (1993) that impeachments are not justiciable." Would this law necessarily apply to a presidential impeachment, which seems to have the "special" circumstance of being presided over by a supreme court justice. Was any judge presiding over Nixon? – abby yorker May 23 at 23:45
  • @abby yorker President Nixon was not impeached. He resigned. Nixon in the case of Nixon v DOJ was an impeached Federal judge with the same last name as the former President. – grovkin May 24 at 2:51
  • @zibadawatimmy a trial is as much a chance for a defendant to clear their name as it is a chance for the government to punish the guilty. If a pardon only removed the ability to impose a punishment, it would not be possible without a guilty plea or a finding of guilt. I am not sure if the distinction is as academic as you claim. – grovkin May 24 at 3:01
  • @zibadawatimmy There are various privileges which are lost by someone convicted of a Federal crime. There may also be compensatory claims against people found guilty. And while loss of privilege maybe viewed as a punishment, compensatory claims are more akin to demands to repay debt. Having said that, if you have a source which shows that one must accept a guilty plea to receive a pardon, it would be informative. It would also mean that one can reject a pardon (in order to clear one's name at trial). And it's not clear that this is the case. – grovkin May 24 at 3:09

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.