by Neal Katyal
The founders’ approach to impeachment, however, was different from Britain’s in several key ways. While Parliament could only impeach the king’s ministers, Congress could impeach the president of the United States, as well as the “Vice President and all civil Officers of the United States.” (No, despite President Trump’s claims, “officers” doesn’t include senators like Mitt Romney.) And unlike in Britain, where Parliament could send an official to prison or to their death as a result of impeachment proceedings, in America, “cases of impeachment,” the delegates wrote in the Constitution, would not “extend further than to removal from office.”
As the convention wound down, the delegates had a solid idea of what impeachment would look like in the United States of America, but on August 31, 1787, the 98th day of the convention, there was one urgent question they still hadn’t answered: what, exactly, would qualify as an impeachable offense?
In early drafts of the Constitution, the standard had been “malpractice or neglect of duty,” but the delegates were worried that would leave Congress with too broad a mandate. So after months of procrastination, the delegates did what they always did when they could no longer afford to delay answering a difficult question: they assembled a committee. They called it the Committee on Postponed Matters. It consisted of one delegate from each of the 13 colonies, and it was tasked with determining what kinds of offenses would warrant impeachment.
Less than a week later, on September 4, the committee released a report determining that a president could be impeached only if found guilty of treason or bribery. But on September 8, George Mason lambasted this standard, arguing it would not “reach many great and dangerous offenses.”
He was right: limiting impeachment to treason or bribery would be nowhere near as effective a check on the president’s power as our founders intended it to be. The Constitution’s definition of treason, after all, was deliberately very narrow, including only “levying war against [the United States], or . . . adhering to their Enemies.” And the term “bribery,” left undefined in the Constitution, likewise excluded a wide range of offenses the founders viewed to be impeachable, including the solicitation of foreign interference in an election. (For more on bribery, read Chapter 3.)
Mason’s suggestion? Lowering the bar to include “treason, bribery, and maladministration.”
Madison, one of the members of the committee, agreed with Mason’s rebuke of the treason-and-bribery standard but felt that including “maladministration” was an overcorrection. “So vague a term,” Madison said, “will be equivalent to a tenure during pleasure of the Senate.” Madison was afraid that this language would make the president more like a prime minister, subject to votes of no confidence by the legislature at any point.
Mason conceded Madison’s point and sent back an edit that would change the course of American history. “Maladministration,” he decided, would be replaced with “high crimes and misdemeanors against the state,” a term borrowed from the English Parliament, whose meaning, as I’ll explain on the following pages, has been debated ever since.
The committee voted 8–3 in favor of the new standard, changing it slightly to read “high crimes and misdemeanors against the United States.” But the phrase’s journey through the byzantine procedures of the Constitutional Convention was not finished. It still had to be approved by one more constituency: the Committee on Style.
This Committee on Style didn’t have many responsibilities—and was explicitly barred from changing the substance of any statutes. Its sole purpose was to ensure that the Constitution would be written in a way that could be understood for centuries. So when its members received the language surrounding impeachment, they didn’t plan to make any major revisions. And, in some ways, they didn’t. They simply made the phrase “high crimes and misdemeanors against the United States” more concise, deleting the last four words.
The final text, which would come to comprise Article II, Section 4 of the Constitution, read as follows:
“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.”
This may seem like a minor edit, but in deleting four words, the Committee on Style played a role in bewildering generations of lawyers, politicians, and citizens who still debate what qualifies as an impeachable offense.
What High Crimes and Misdemeanors Are Not
This raises the question: What are high crimes and misdemeanors?
To understand what they are, it helps first to understand what they are not. That’s because impeachment is designed to be rare, reserved only for a very specific kind of offense. And, in most cases, if you’re wondering whether a president’s actions are impeachable, the answer will likely be no.
Public opinion on what is and isn’t impeachable is shaped by two widespread misunderstandings of the phrase “high crimes and misdemeanors.” The first is that a president can be impeached only for crimes and misdemeanors laid out in the federal criminal code. The second is that a president can be impeached for all crimes and misdemeanors laid out in the criminal code. Both of these are wrong.
Let’s start with the first. The idea that a president can be impeached only for violations of a criminal statute is atextual: the Constitution does not say that. Moreover, it is illogical, as it would exclude many abuses of power that our founders deemed clearly worthy of impeachment.
Let me offer an example. What if an incumbent president’s opponent in the general election were murdered by the president’s brother one day and the president pardoned his sibling the next day? According to the Constitution, the president’s pardon power is unlimited “except in cases of impeachment,” which means he would have the right to declare, based on the text of the Constitution, that what his brother did was, to quote President Trump, “very legal, very cool.” And because this president controls the Justice Department, he could direct prosecutors not to charge his brother in the first place, before needing to use his pardon power.
But allowing a president to get away with this abuse of power would set a precedent that a sitting president could sanction the killing of his political opponents by supporters—a precedent that would make America more closely resemble a dictatorship than a democracy. So of course Congress could impeach the president for conduct like this, notwithstanding the language about pardons in Article II, and notwithstanding the fact that abuse of the pardon power isn’t itself a criminal act.
This is an extreme case, but it’s not an isolated one. There are many actions the president could take that are technically legal but would nonetheless warrant impeachment. In their book, Impeachment: A Handbook, law professors Charles Black and Philip Bobbitt provide a few illustrative examples. “What if,” they write, “the president required all cabinet members to affirm their belief in the divinity of Christ? Or that he devolved to his personal financial adviser classified intelligence about upcoming decisions of the Federal Reserve? Because the president can declassify any material he wishes, there is nothing per se illegal about this.”
Or, as they write, “What if the president announced that under no circumstances would he respond to the invocation of NATO’s Article 5, which calls upon the signatories to the North Atlantic Treaty to defend each other when they are attacked?” What if we received evidence that our ally (say, France) was about to be attacked with a nuclear bomb by an adversary (say, Russia) and our president declined to tell leaders in Paris? What if we received evidence that we were about to be attacked by a nuclear bomb and our president declined to take action? Wouldn’t that be cause for impeachment?
There’s no law against the president keeping an impending nuclear strike secret from the American people—the commander in chief’s wartime powers are nearly limitless—but of course this should qualify as an impeachable offense. Which is why we should never confine what may qualify as a “high crime and misdemeanor” to what’s writ
ten down in our criminal codes. After all, the very first federal official to be removed from office through impeachment—a judge named John Pickering—was forced to step down in 1804 not because he violated any laws but because his drunkenness prevented him from ruling fairly on cases.
This brings us to the second misinterpretation of the phrase “high crimes and misdemeanors,” which is equally mistaken: the idea that Congress can impeach the president for violating any and all criminal statutes.
If this were true, our democracy would exist in a perpetual state of chaos. We’d have presidents impeached for parking tickets, for jaywalking, for littering, and for all sorts of ridiculous offenses in the criminal code. In the important presidential caucus state of Iowa, for example, it’s a misdemeanor to pass off margarine as butter—a deplorable thing to do, but certainly not a high crime or misdemeanor. If every criminal infraction were reason enough for impeachment, the results of our elections would last only as long as our presidents maintained perfect behavior. And our presidents would be forced to walk on eggshells every day for fear of breaking a law they don’t even know exists.
We know this interpretation doesn’t reflect the founders’ views for many reasons—not least of which because they allowed Vice President Aaron Burr to get away with murder.
Literally.
If you’ve missed the Hamilton phenomenon of the last several years, here’s the story: While serving in the second-highest office in the land, Vice President Burr killed Alexander Hamilton in a duel. And yet, Congress declined to impeach Burr, because they didn’t believe his actions interfered with his ability to do his job. Of course he’d committed a crime. Murder always has been, and always will be, illegal. But in his case, they didn’t believe it was a high crime.
Which raises the question: What does the word “high” mean in this context? Contrary to popular belief, the word “high” as used in the Constitution doesn’t have anything to do with “the severity of the crime,” as Jon Meacham, Timothy Naftali, Peter Baker, and Jeffrey Engel explain in their book, Impeachment: An American History. The term “high crimes,” as the founders knew it, came from English law, where, to quote Meacham, it was defined as offenses “committed against the crown in a monarchy or the people in a democracy.”
This is probably why the grammarians on the Committee on Style deleted the phrase “against the United States,” because they felt it was redundant with the word “high.” Little did they know: “high” would take on many different meanings in the years ahead, and the debate over what exactly qualifies as a “high crime” would incessantly divide Congress over the course of American history, never more so than during the impeachment inquiries of President Andrew Johnson, President Bill Clinton, and President Richard Nixon, as well as the (abandoned) impeachment inquiry of President John Tyler.
The Impeachment of President Johnson
The moment Andrew Johnson swore his oath of office after Abraham Lincoln’s death, one of America’s greatest presidents was replaced with one of its worst. Where Lincoln was thoughtful, brilliant, and effective, Johnson was irascible, ignorant, and incompetent. While Lincoln spent his presidency uniting a house divided, Johnson spent his tearing America apart. Whereas Lincoln fought to end slavery, Johnson helped to ensure that its legacy would live on in America for centuries.
So there’s no doubt our country would have been better off if Johnson had been removed from office. The problem was: he hadn’t committed any impeachable offenses.
That didn’t stop the House from impeaching him anyway. The “high crime and misdemeanor” they accused him of? Violating the Tenure of Office Act, a law Congress had passed only months before, barring presidents from firing any Senate-confirmed appointees without the consent of the Senate. The Supreme Court eventually ruled the Tenure Act unconstitutional, in 1926, but even back in 1868, as Johnson faced the prospect of impeachment, very few members of Congress earnestly believed he had committed an impeachable offense. They simply didn’t believe he was fit to be president. And without another clear high crime to cite, they decided the Tenure of Office Act provided them with their best chance to remove him from office.
The crazy part was: It almost worked.
The House voted to impeach President Johnson by a margin of 126–47—before he avoided conviction and removal by a single vote in the Senate, from a man by the name of Edmund Ross.
An abolitionist senator from Kansas, Ross didn’t support President Johnson’s policies. Far from it: Ross had aided antislavery militias before the Civil War. But he couldn’t bear to impeach a president for anything less than treason, bribery, or another high crime or misdemeanor. So he voted against removing President Johnson from office, even though he knew he would lose reelection for doing so.
For nearly a century, Senator Ross’s legacy was largely lost to the annals of history—until President John F. Kennedy included him in his book Profiles in Courage. Kennedy was no fan of Andrew Johnson, but he, like Senator Ross, believed our democracy depended on reserving impeachment for treason, bribery, high crimes, and misdemeanors. And while President Johnson’s actions may technically have violated a statute, Kennedy knew they didn’t meet the standards for an impeachable offense in our Constitution.
It’s one thing to talk about living by the Yardstick Rule, another to actually do it, as Senator Ross did. That’s why Kennedy believed Ross was a profile in courage. “In a lonely grave he lies, forgotten, unknown,” Kennedy wrote of Ross. “He acted for his conscience and with a lofty patriotism, regardless of what he knew must be the ruinous consequences to himself. He acted right.”
Ross’s legacy looms over our discussion about impeachment today, and serves as a reminder that even in the heat of the moment, we must not let short-term political expediency triumph over our long-term national principles. If we’re going to impeach a president, in other words, it better be for an actual high crime or misdemeanor.
The Impeachment of President Clinton
The story of President Clinton’s impeachment follows a similar arc.
There is no denying that our 42nd president lied under oath. “I did not have sexual relations with that woman,” he insisted, when he did in fact have sexual relations with his intern, Monica Lewinsky. President Clinton was guilty of perjury—and perjury is undoubtedly a crime. But was it a high crime?
The answer is: It depends (on what you’re lying about).
Imagine President Clinton had lied under oath about a topic that directly impacted his ability to serve as commander in chief. For instance, suppose he had been spying on a political opponent’s campaign but had sworn he hadn’t done so. Or imagine he had lied about aiding an enemy of the United States in exchange for personal profit. In these cases, perjury would clearly qualify as a high crime, because the lies would obstruct investigations into underlying impeachable offenses.
President Clinton’s lies about Monica Lewinsky were also reprehensible, and so was his conduct. He exploited perhaps the biggest power imbalance in the history of workplaces, between an intern and the president of the United States, for his own sexual gratification. He lied about it. And there’s reason to believe this wasn’t an isolated incident.
So why wasn’t he convicted and removed? Because, as Laurence Tribe and Joshua Matz write, “While Clinton’s conduct was faithless to his marriage and to the court in which he testified, it hardly broke faith with the nation as a whole or foreshadowed grave peril if he remained in office.” Congress believed, in Tribe and Matz’s words, that “ordinary checks and balances seemed fully capable of addressing any further objections to how Clinton conducted himself while in office.”
So on February 12, 1999, Clinton was acquitted on all counts of impeachment—not only because the Senate didn’t believe his actions rose to the level of a high crime, but also because of the nakedly partisan, and hypocritical, conduct of those impeaching him. Fundamentally, the American people did not believe President Clinton was being impeached in good faith. And,
before long, they were proven right. As Jeffrey A. Engel writes, “Each of the three men who led House Republicans during Clinton’s impeachment [Newt Gingrich, Bob Livingston, and Dennis Hastert] would ultimately face ridicule, ouster, and even [in one case] prison for their infidelities and sexual crimes.”
Whether the Senate came to the right conclusion in declining to convict Clinton is for history to decide, but no matter what, his case teaches us two important lessons. The first is that perjury and obstruction, standing alone, are not sufficient reason to impeach a president—unless they’re covering up underlying conduct that would qualify as a high crime or misdemeanor.
The second is that Congress needs to demonstrate that it is impeaching the president to protect the rule of law, not just to score political points. As soon as it becomes clear that an impeachment inquiry has been launched on the basis of what party the president belongs to or what he believes in—as soon as it’s clear that legislators are using a different yardstick for a president of a different party than they would a president of their own—the case is over.
As it should be.
The (Botched) Impeachment of President Tyler
This played out most explicitly during the presidency of John Tyler, which began in April 1841, after William Harrison died only 32 days into his presidency. Tyler was the first vice president in American history to ascend to the presidency without being directly elected to the highest office, so his tenure began on shaky ground—which, as Ronald Shafer argues, was made even shakier by the fact that Tyler’s and Harrison’s ideologies didn’t neatly align. Whereas Harrison had long been a proud member of the Whig Party, Tyler had just recently relinquished his label as a member of the rival Democratic Party.