So why did the Framers even bother including a standard such as “high Crimes and Misdemeanors”? Given that Congress can so easily warp this language, what was it meant to achieve?
To put the question in context, many constitutions with an impeachment process don’t follow the American approach. Some jurisdictions, including twelve US states, say nothing at all. In Georgia, for example, the House wields “the sole power to vote impeachment charges,” but isn’t told by its constitution when impeachment is proper.6 This manner of writing a constitution embraces the political judgment that must be made and doesn’t try to constrain it. A radically different approach—uncommon in the US, but popular abroad—is to declare that all criminal violations or unconstitutional acts are grounds for impeachment. That strategy has been embraced by Argentina, Germany, India, South Africa, and Poland, among others. A third option, seen by some as a middle ground, is to enumerate specific acts that qualify as impeachable. Like many constitutions worldwide, the US Constitution takes this approach to “Treason” and “Bribery.”
Finally, a constitution can define impeachable offenses using an open-ended standard. The US Constitution employs the phrase “high Crimes and Misdemeanors.” Many American state constitutions follow a similar approach in their impeachment clauses, though with different standards of wrongdoing. For example, Pennsylvania targets “misbehavior,” New Jersey aims at “misdemeanor[s],” and Massachusetts forbids “misconduct and mal-administration.”7 These terms, and their synonyms, can also be found in a fistful of foreign constitutions—often modified by adjectives such as grave and high. Nations that have adopted this constitutional strategy include Nigeria, Palau, Sierra Leone, and Russia.
As a matter of constitutional design, choosing an impeachment standard from among these options involves delicate trade-offs. Looking to the language used in our Constitution, there’s no denying that the phrase “high Crimes and Misdemeanors” is vague. While not quite a Rorschach test, these words are pliable. Under the right circumstances, politicians could credibly contend that they mean all sorts of things that shouldn’t actually be accepted as grounds for undoing the results of an election.
Yet in writing a constitution meant for the ages, there are compelling reasons to favor an adaptable, flexible standard. To start, it would be impossible to anticipate every act that might someday require impeachment—particularly given that the Impeachment Clause applies not only to the president and federal judges, but also to many other senior executive branch officials. And even if creating such a list were somehow possible, it wouldn’t be desirable to write a constitution that way. As Chief Justice John Marshall explained in 1819, a well-written constitution cannot “partake of the prolixity of a legal code.” Rather, its nature “requires only that its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”8
In practice, moreover, the decision to specify “high Crimes and Misdemeanors” wasn’t an empty choice. This formulation inevitably frames our national discussion of impeachment. It guides, though it doesn’t always resolve, investigations and political assessments of alleged misconduct. For generations, those words have shaped popular expectations about removing a president. And those expectations have disciplined politicians. As Representative Brad Sherman explained in December 2017, “We’re more or less a democracy. There are 320 million people out there. When they hear the term ‘high crimes and misdemeanors,’ their reaction is, ‘Show me the crime.’”9 Sherman added, “The legal theoreticians will tell you that impeachment is just a matter of politics. I’m a politician, and I’m here to tell you that it’s a matter of legal analysis.”
In truth, impeachment blends legal, political, and many other kinds of judgment. But as Sherman’s remarks indicate, a broad cross-section of the public has grasped that the Constitution demands wrongdoing of a very high order to justify impeachment. With centuries of experience under our belt, it’s safe to say that a requirement of truly bad acts has generally been taken seriously. We don’t live in a system where political differences alone bring an end to four-year presidential terms.
By and large, that’s a good thing. The Impeachment Clause is one of the Constitution’s architectural cornerstones. Because it identifies a key feature of US governmental structure, its stability and predictability are important. To raise or lower the impeachment bar is to move the nation closer to an imperial presidency or a parliamentary system. Especially now that Americans’ daily lives can be affected so directly by the president and his relationship to Congress, tinkering with the impeachment standard is serious business. Tossing it up for grabs would risk significant political instability.
In a narrow sense, Gerald Ford was correct: Congress’s word on impeachments is final. Although he found that idea liberating, exactly the opposite is true. If Congress errs here, the American people must live forever with the consequences. No deus ex machina will magically appear to set the system straight. That makes it more important, not less, that Congress interpret the requirement of “high Crimes and Misdemeanors” in good faith. Doing otherwise would involve a severe betrayal of trust and could have disturbing consequences for the future of the Republic.
Article II, Section 4 of the Constitution provides: “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.” Most Americans are at least roughly familiar with this language. Like few other lines in the Constitution, it has penetrated and shaped public consciousness.
Let’s start by considering the definition of “Treason.” Even a cursory glance at the Constitution reveals that the Framers took this term very seriously: it’s the first impeachable offense listed in Article II, and it’s the only criminal offense defined in the Constitution itself. Specifically, while establishing federal judicial power, Article III declares that “treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The Constitution then proceeds to create a special rule of evidence for this offense: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” As if that’s not enough, the Constitution then limits the sentences that can be imposed: “Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” Put simply, Congress can’t punish a traitor by disabling his successors from claiming their inheritance. In the United States, treason doesn’t corrupt the bloodline.
These elaborate rules reflect lessons that the Framers had learned from English history. To protect political dissent, they devoted considerable energy to carefully limiting the law of treason. This Americanized doctrine outlaws just two forms of perfidy: (1) levying war against the United States and (2) adhering to the nation’s enemies, giving them aid and comfort. On their face, these are exceptionally serious and dangerous offenses. They necessarily involve an unforgivable betrayal of the nation and its people. A president found to have committed such acts couldn’t conceivably remain in power. If he remained in office, no apologies or alternative restraints would alleviate the continuing danger he posed. Once a traitor, always a traitor.
Under Donald Trump, impeachment talk has been riddled with sometimes careless insinuations of treason. Most of those allegations relate to legally questionable dealings between Trump advisors and foreign powers—seemingly with his knowledge or tacit approval. In the estimation of many experts, though, it’s highly unlikely that the law of treason as such will play a major role in the continuing Trump saga. Indeed, scholars specializing in the subject would find it quite surprising if formal accusations of treason featured prominently in any presidential impeachment of the twenty-first century.
/> With regard to levying war, it’s awfully hard to imagine an American president using armed force in an attempt to overthrow the government he heads. But historically, that is what courts have required: an assemblage of people who used actual force or violence to execute a treasonable design against the government. And even if this requirement could be met by proof of cyberattacks, we doubt an American president and his co-conspirators would hack into government agencies to achieve distinctively warlike objectives. For purposes of the Treason Clause, there’s a big difference between hacking into voting machines to change electoral outcomes (not treason) and hacking into the Pentagon to launch missiles at New York City (certainly treason).
That leaves only treason consisting of “aid and comfort” to our “enemies.” Although the world is full of powers with hostile intentions, few of them qualify as “enemies” in the relevant sense. As Professor Carlton Larson explains the conventional view, “an enemy is a nation or an organization with whom the United States is in a declared or open war.”10 We haven’t engaged in a “declared” war since World War II. In contrast, we’ve had many states of open war, including against Korea, Vietnam, Iraq, and Afghanistan. At the moment, America’s unquestioned “enemies” are limited to the likes of Al Qaeda, the Taliban, and ISIS. We very much doubt that any president is likely to lend “aid and comfort” to these groups.
Some commentators have argued that Russia also ranks among our “enemies.” They contend that Russia engaged in open cyberwarfare against the United States when it hacked into American computers and weaponized the resulting information to interfere with the 2016 election. This argument raises interesting and important questions about the circumstances under which cyberattacks create a state of war for purposes of the Treason Clause. For the time being, however, continued legal uncertainty about whether it is treasonous to lend “aid and comfort” to Russia militates against basing an impeachment on this theory.
In most cases, it likely would be easy enough to avoid these thorny issues, since formal acts of treason aren’t the only form of betrayal that can properly subject a president to impeachment. It is beyond doubt that a president can be removed from office for knowingly colluding, conspiring, or otherwise working with foreign powers against the national security interests of the United States. For example, if the president improperly conspired with a hostile nation to interfere with a US election or weaken US policy on matters of strategic importance, that conduct would be impeachable in its own right. While the Constitution defines treason narrowly for purposes of criminal prosecution, this rule does not impliedly prohibit Congress from concluding that other betrayals of the nation qualify as “high Crimes and Misdemeanors.”
Turning to “Bribery,” the Constitution nowhere defines this term. Nor did federal law do so until 1853, when Congress passed the first bribery statute of general application. (Before then, federal prohibitions focused mainly on people who bribed judges.) A well-developed body of federal bribery law now exists, but this jurisprudence is an imperfect guide for interpreting the Impeachment Clause. Because these highly technical doctrines mix politics with broadly-applicable criminal law, Congress and the Supreme Court have painstakingly micromanaged them. The result is a set of rules that may sometimes fail to capture improper exchanges that the Framers intended to make impeachable.
Indeed, the Supreme Court has recently led an effort to narrow and revise federal bribery law as applied to government officials. In its most prominent decision, McDonnell v. United States, the Court explained that a broader definition of bribery would permit unaccountable federal agents to chill democracy by “cast[ing] a pall of potential prosecution” over interactions between local officials and their constituents.11 Yet that important policy concern in criminal law is almost entirely inapplicable to impeachment. When impeachment charges are filed, there’s no shortage of political accountability. And Congress, unlike prosecutors and juries, is more than capable of sensing when an apparent quid pro quo arrangement crossed the line. McDonnell thus exemplifies why it makes little sense to blindly transplant federal bribery law—or other criminal law doctrines—into the Impeachment Clause.
In defining “Bribery,” it’s more helpful to ask why the Constitution singled out this offense (alongside treason). As we explained in Chapter 1, the Framers feared insidious foreign influence most of all. Gouverneur Morris thus warned that the president “may be bribed by a greater interest to betray his trust.”12 “No one,” Morris added, “would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay.” But the Framers’ concern about betrayal wasn’t limited to foreign powers and foreign money. Categorical rules against bribery spoke to the conditions of possibility for a liberal society in which the people were truly sovereign. As Professor Akhil Amar notes, “bribery—secretly bending laws to favor the rich and powerful—involves official corruption of a highly malignant sort, threatening the very soul of a democracy committed to equality under the law.”13 What kind of republic could America be if leaders answered only to the selfish interests of those who paid them off?
The Framers were so anxious about bribes that they built a multilayer defense system. First, in Article 1, Section 9, Clause 8, they banned federal officials from accepting any presents, emoluments, offices, or titles from foreign governments unless Congress affirmatively consented. This rule was designed to guard against unconscious division of loyalty. Further, by banning foreign emoluments, the Framers sought to prevent circumstances in which bribery might occur but be impossible to detect. Next, in Article II, Section 1, Clause 7, the Framers banned the president from accepting any emoluments from states and the federal government itself. That strict rule ensured the president wouldn’t be improperly swayed by private inducements from domestic officials. Finally, the Framers struck directly at the core evil: quid pro quo bargains. By writing bribery into the Impeachment Clause, they ensured that the nation could expel a leader who would sell out its interests to advance his own.
This background must frame our interpretation of “Bribery.” The ultimate question is whether a president exchanged money or other favors with the intent of influencing some official action or inaction. The corrupt exercise of power in exchange for a personal benefit defines impeachable bribery. That’s self-evidently true whenever the president receives bribes to act a certain way. But it’s also true when the president offers bribes to other officials—for example, to a federal judge, a legislator, or a member of the Electoral College (a possibility that terrified the Framers). In either case, the president is fully complicit in a grave degradation of power, and he can never again be trusted to act as a faithful public servant. While instances of outright bribery now seem rare—or hard to prove—this rule remains vital in an age of presidential kleptocracy. At the very least, it anchors our understanding of how corruption may threaten the Constitution.
The Framers had good reason to single out “Treason” and “Bribery,” and to declare them impeachable. Fortunately, these offenses have historically played a negligible role in cases of presidential impeachment. Their main function in such proceedings has been to inform the meaning of their textual neighbor, “high Crimes and Misdemeanors.” It’s to that topic we now turn.
Few terms in constitutional law have been so fiercely contested as “high Crimes and Misdemeanors.” Whenever impeachment talk emerges, the great minds of the nation race to explain why the president has (or has not) committed such offenses. Often, though, these “analyses” are merely political attacks drenched in Madison quotes. It’s hard to write about impeachment without a crushing awareness of unfolding events. Even general discussions of impeachable conduct are inevitably shaped by views on the sitting president.
That’s long been a feature (and a bug) of the US system. In selecting an imprecise standard, the Framers delegated to future generations a duty to decide what conduct is beyond the pale. Those decisions, in turn, aren’t made in a void. They’re always situated
in unfolding political drama and shaped by reactions to the most recent experience of tyranny. Because many of the rules, norms, and habits that discipline our chief executive are fluid and contested, so are the outer limits on tolerable uses of power. Deciding when a president has gone too far calls for a present-day judgment based on political principle, legal theory, and moral vision.
It’s therefore unsurprising that Americans have long disagreed over what it means to commit “high Crimes and Misdemeanors.” In the pre–Civil War period alone, federal legislators called for impeachment over a dizzying array of offenses. A nonexhaustive list from that period includes (1) John Adams’s extradition of a mutinous British Navy sailor to England, amid rumors that the sailor was a captured American; (2) Thomas Jefferson’s supposed “deliberate neglect” in failing to appoint a Collector of the Port of Boston; (3) Andrew Jackson’s contested decision to withdraw federal deposits from the Bank of the United States; (4) John Tyler’s alleged misuse of the veto power; (5) Franklin Pierce’s refusal to intervene militarily against pro-slavery forces in “Bleeding Kansas”; and (6) James Buchanan’s suspected involvement in corrupt deals with members of Congress.
In each of these cases, opinions varied wildly on what kinds of presidential misconduct qualified as impeachable. Some politicians hinted that nothing short of declaring a monarchy would suffice. Others insisted that any unconstitutional act by the president required immediate impeachment. Even in the early years of the Republic, when Framers filled the ranks of government, disagreements on this basic question were common.
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