The six constitutional provisions on impeachment are quoted: Article II, sections 4 and 2; Article I, sections 2 and 3; Article III, section 2.
After the House voted in February, 1974 to investigate the possibility of impeaching Nixon, the "Constitutional Grounds for Presidential Impeachment" report was prepared to provide information on precedents and constitutional principles.
The framers provided no fixed standard for impeachment grounds, and no abstract rules on conduct have been developed by the Supreme Court or through debates in the House. Only a full investigation can develop the facts. The report discusses the significance of the constitutional phrase "Treason, Bribery, or other high Crimes and Misdemeanors," conviction of which shall result in removal from office.
The Historical Origins of ImpeachmentEdit
"[H]igh Crimes and Misdemeanors" is a unique phrase which had been used for centuries in English parliamentary impeachments.
The English Parliamentary PracticeEdit
The impeachment procedure apparently stemmed from the acceptance, in 1341, by both King and Parliament that the King's ministers should be accountable to Parliament.
Parliament developed impeachment as a tool to control the King's power, bring to account his ministers (removing those promoting absolutist monarchy), and improve governmental responsibility and redress imbalances. Generally charges involved damage to the state, offenses against the system of government, and misconduct in expanding royal power. Impeachment charges against Thomas Wentworth in 1640 alleged that he had "traiterously endeavored to subvert the Fundamental Laws and Government... [and] to introduce Arbitrary and Tyrannical Government against Law...."
He was also charged with assuming regal power and exercising it tyrannically and subverting the rights of Parliament.
The phrase "high Crimes and Misdemeanors" first appears in 1386 in the impeachment of the King's Chancellor, Michael de la Pole, for corrupt real estate profiteering and for failing to carry out Parliamentary directives. In 1450 the phrase next appears in the impeachment of Michael's descendant William de la Pole. The related offenses included "advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of the laws," "procuring offices for persons who were unfit, and unworthy of them" and "squandering away the public treasure."
From 1620 to 1649 over 100 impeachments were done; those of them charging high crimes and misdemeanors involved statutory and non-statutory offenses. Sir Henry Yelverton, the King's Attorney General, was impeached in 1621 for failing to prosecute after commencing suits, and exercising authority before it had been properly vested in him.
After Charles II became King, Parliament expanded the scope of "high Crimes and Misdemeanors" to include negligent discharge of duties (Peter Pett's wilful neglect in loss of an unmoored ship, and poor preparation for an invasion by the Dutch) and improprieties in office (Chief Justice Scroggs allegedly browbeat witnesses, commented on their credibility, and cursed and drank to excess, bringing "the highest scandal on the public justice of the kingdom.")
Nearly all of the eighteenth century impeachments involved "high Crimes and Misdemeanors," and many involved abuse of official power or trust. Edward, Earl of Oxford, was charged with "violation of his duty and trust" for diverting royal rents and revenues to his own use, and with procuring a naval commission for William Kidd, whose piracies were "encouraged through hope of being protected by the high station and interest of Oxford, in violation of the law of nations, and the interruption and discouragement of the trade of England." Warren Hastings was impeached in 1795 for maladministration, corruption, and cruelty.
In English practice, "high Crimes and Misdemeanors" involved misconduct damaging the state through misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament's prerogatives, corruption, and betrayal of trust. The phrase was reserved for impeachment, having no roots in criminal law and was not necessarily limited to common law or statutory derelictions or crimes.
The Intention of the FramersEdit
Grounds for impeachment got little attention at the Constitutional Convention, but there is evidence that the framers were aware of the technical meaning of "high Crimes and Misdemeanors." They intended impeachment as a central element of executive responsibility, and a constitutional safeguard of the public trust, the governmental powers of the President and other civil officers, and the division of powers among the legislative, judicial, and executive departments.
The Purpose of the Impeachment RemedyEdit
The framers sought built in safeguards against executive abuse and usurpation of power. To avoid creating "the foetus of monarchy" they considered a plural executive, but rejected this and a proposal for a privy council because, as Alexander Hamilton put it, they tend "to conceal faults and destroy responsibility" and to protect the executive from the people's "two greatest securities... censure and punishment." Hamilton argued that divided censure loses "the opportunity of discovering with facility and clearness the misconduct."
James Wilson told the Pennsylvania convention that the President, though he wields great power, "yet not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment."
The provision making the executive removable upon impeachment and conviction for "mal-practice or neglect of duty" was unanimously adopted from the beginning of the Constitutional Convention. Edmund Randolph noted "The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands."
Adoption of "High Crimes and Misdemeanors"Edit
A later draft Constitution provided for removal upon impeachment and conviction for "treason or bribery." George Mason argued that this "will not reach many great and dangerous offenses.... Attempts to subvert the Constitution may not be Treason..."
Referring to the contemporary British impeachment of Warren Hastings (for maladministration, corruption and cruelty in his service as Governor-General of India) Mason proposed "maladministration" as a third ground. After James Madison objected that this vague term amounted to "tenure during pleasure of the Senate," Mason substituted "high crimes and misdemeanors agst. the State," which was adopted.
The framers were familiar with English parliamentary impeachments, with the term "high misdemeanor" (which they struck out of a draft on extradition on grounds that it was a limited technical term) and with Blackstone's Commentaries on the Laws of England. Blackstone's defined "high misdemeanors" as one term for offenses "against the king and government" the first of which was "mal-administration of such high officers, as are in public trust and employment." usually punished by the method of parliamentary impeachment." [sic]
The ancient law of treason distinguished between a "high" crime and an ordinary one, resulting in the term's later application to crimes injurious to the commonwealth--to the state and its constitution.
The Supreme Court has held that a "term of art" must be construed not according to modern usage but according to what the framers meant.
Grounds for ImpeachmentEdit
At the convention George Mason included in his list of desired grounds for impeachment "attempts to subvert the Constitution." He apparently believed "high Crimes and misdemeanors" covered this. Alexander Hamilton had related the impeachable offenses to "abuse or violation of some public trust" or "injuries done immediately to the society itself."
At the North Carolina ratifying convention James Iredell advocated punishment "for giving false information to the Senate," describing a situation in which a President "concealed important intelligence... and by that means induced them to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them...." Discussion in state conventions implied that impeachment reached offenses against the government, and abuses against constitutional duties.
In the first Congress, James Madison argued that a President should be impeached for "wanton removal of meritorious officers" or "if he suffers them to perpetrate with immunity high crimes and misdemeanors against the United States, or neglects to supervise their conduct...."
Justice Joseph Story wrote in 1833 that impeachment applies to "political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests...."
The American Impeachment CasesEdit
Those impeached between 1787 and 1974 include one President, one cabinet officer, one US Senator, and ten Federal judges. The provision in Article III, Section 1 that judges "shall hold their Office during good Behaviour," does not limit the precedential relevance of the judicial impeachments. Impeachable misconduct involves three categories:
- exceeding the constitutional bounds of the powers of the office in derogation of the powers of another branch of government
- behaving in a manner grossly incompatible with the proper function and purpose of the office
- employing the power of the office for an improper purpose or for personal gain
Exceeding the Powers of the Office in Derogation of Those of Another Branch of GovernmentEdit
In 1797 the first American impeachment charged Senator William Blount with
- compromising the neutrality of the USA in inciting Indians in Florida and Louisiana to serve British interests by attacking Spanish settlers
- attempting to oust the President's appointed Indian agent, thereby intruding on the President's powers.
In 1868 President Andrew Johnson was impeached for exceeding the power of his office. Believing the Tenure of Office Act to be unconstitutional, Johnson had violated it by removing Secretary of War Edwin Stanton from office without the advice and consent of the Senate. The issue was the constitutional division of executive and legislative power.
Behaving in a Manner Grossly Incompatible with the Proper Function and Purpose of the OfficeEdit
Judges were impeached for intoxication on the job, for "arbitrary, oppressive, and unjust" rulings, for favoritism, and for joining the Confederacy. Two impeachments of judges in the 1930's alleged that favoritism affects public confidence in the courts.
Employing the Power of the Office for an Improper Purpose or for Personal GainEdit
Vindictive use of power was alleged in three impeachments of judges after they jailed or threatened to jail critics. Six impeachments alleged the appearance of financial impropriety or use of the office for personal gain. Secretary of War William Belknap was impeached after conduct that probably constituted accepting a bribe.
Criminal conduct is alleged in less than one third of the articles of impeachment adopted, and a third of those involved Andrew Johnson's Tenure of Office Act violations. Much more common is the complaint that the officer has violated his duties or his oath or has seriously undermined public confidence in his ability to perform his official functions. That judges have brought their courts or the judicial system into disrepute is a frequent allegation. In the impeachment of President Johnson, allegations that he acted "unmindful of the high duties of his office and of his oath of office" appeared in nine articles, and several mentioned his constitutional duty to take care that the laws be faithfully executed.
Some impeachments involved a "course of conduct" or combined disparate charges into a single article. Sometimes individual charges seem in isolation to be relatively trivial. While the Senate votes on each article after trial, and need only convict on one article to remove, the House appears to consider the individual offenses less important than the total conduct of the official. Impeachment is meant to reach a broad variety of conduct that is both serious and incompatible with the duties of the office.
The Criminality IssueEdit
The framers intended that impeachment should address grave misconduct that injures or abuses our constitutional institutions and form of government. The phrase "high Crimes and Misdemeanors" has an historical meaning different from the meanings of the words "crimes" and "misdemeanors." Since the fourteenth century "high Crimes and Misdemeanors" has meant a range of criminal and non-criminal offenses against the institutions and fundamental principles of government. George Mason, who proposed use of the phrase, stated his intent to encompass "[a]ttempts to subvert the Constitution."
Post-convention statements and writings of Alexander Hamilton, James Wilson, and James Madison show that they regarded impeachment as a remedy for offenses against constitutional government, and not a device limited to criminal offenses. The purpose is not to punish but to maintain constitutional government. Impeachment calls a President to account for abusing powers that only a President possesses.
Impeachment is a constitutional remedy addressed to serious offenses that subvert the structure of government, or undermine the integrity of office or the Constitution, and thus are "high" crimes as the word was used in English impeachments. The phrase "high Crimes and Misdemeanors" was known by the framers to refer to the historical process of impeachment in England and its limitation of royal prerogative and setting controls on the abuse of ministerial and judicial power.
While insistent that the executive should not be dominated by the legislature, the framers wanted a process for dealing with executive excesses. In the English practice and in several American impeachments no criminal allegations were made. Emphasis has been on conduct that undermined the integrity of office, involved disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, or adverse impact on the system of government.
Three Presidential duties are explicitly recited in the Constitution:
- "To take Care that the Laws be faithfully executed"
- "to faithfully execute the office of the President of the United States"
- "preserve, protect, and defend the Constitution of the United States"
The first two duties are affirmative. The third includes the duty not to abuse his powers or transgress their limits--not to violate the rights of citizens, such as those guaranteed by the Bill of Rights, and not to act in derogation of powers vested elsewhere by the Constitution.
Conduct as a whole must be considered, not isolated events. Impeachment is predicated only on conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.