the concern that the executive not become too beholden to Congress, some delegates suggested a narrower and more objective standard that stressed the gravity of impeachment: The president would be removable only for treason or bribery. But this was clearly insufficient, failing to account for an array of corrupt and incompetent actions not necessarily related to either cupidity or treachery.
Such condemnable conduct was not merely foreseeable in the abstract. The Framers had a concrete, contemporaneous example: the sensational impeachment trial in Parliament of Warren Hastings, Britain’s governor-general in India. The primary proponent of Hastings’s impeachment was Edmund Burke, the renowned Whig parliamentarian, political philosopher, and supporter of the American Revolution. Burke extensively charged Hastings with “high crimes and misdemeanors,” the ancient British standard for removing malfeasant public officials. While some of Hastings’s offenses involved bribery, most related to extortion, heavy-handed corruption, trumped-up prosecutions (resulting in death and other severe punishments), the allegedly reckless conduct of warfare, and what we would today call “human rights” abuses against the indigenous people of England’s Indian domains. Far from treasonous, Hastings’s actions were intended to preserve and strengthen the British Empire’s position (even if, to Burke’s mind, their wanton immorality and disregard for Indian sensibilities arguably weakened it).8
The impeachment inquiry on Hastings’s governance formally began in 1786, and articles against him in the House of Commons were voted the next year, only a few weeks before the Philadelphia convention. Mason noted the spectacle in positing that the executive would be inadequately restrained if impeachment were limited to treason and bribery: “Treason as defined in the Constitution will not reach many great and dangerous offenses. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason[.]” After the delegates finally agreed to add “high crimes and misdemeanors” to treason and bribery as grounds for impeachment, Hamilton explained that Great Britain provided “the model from which [impeachment] has been borrowed.”9
“High crimes and misdemeanors” was not Mason’s first choice. He argued for “maladministration,” the term used in the impeachment provisions of several state constitutions. Blackstone’s Commentaries on the Laws of England, a magisterial legal treatise that profoundly influenced the Framers, described “maladministration of such high officers, as are in public trust and employment” as the “first and principal” of the “high misdemeanors”—offenses “against the king and government” that were punished by “parliamentary impeachment.”10 “Maladministration” was indeed close to the concept the delegates had in mind, but Madison had reservations about its vagueness. A promiscuous construction of the term could devolve into legislative dominance over the executive, going well beyond the objective of empowering Congress to deal decisively with a president who had demonstrated himself truly unfit. Mason responded to Madison’s concerns by amending his proposal to “high crimes and misdemeanors,” which had the benefit of being a venerable term of art.11 This standard was adopted by the convention and enshrined in the Constitution.12
All public officials are certain to err at times, and chief executives, who make the most consequential decisions, can err egregiously. Nor will it be uncommon for presidents to abuse their powers to a limited extent, whether because of venal character or because it is often the president’s burden to navigate between Scylla and Charybdis. Comparatively few presidents, though, will prove dangerously unfit for high office. Thus, impeachment was designed to be neither over- nor under-inclusive. “High crimes and misdemeanors,” complementing treason and bribery, was an apt resolution. It captures severe derelictions of duty that could fatally compromise our constitutional order, but eschews impeachments based on trifling irregularities.
As Burke made clear, “high crimes and misdemeanors” had been used by the British Parliament for centuries. The Constitutional Rights Foundation elaborates:
Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.13
“High crimes and misdemeanors” is a concept rooted not in statutory offenses fit for criminal court proceedings, but in damage done to the societal order by persons in whom great public trust has been reposed. Hamilton described impeachable offenses as those
which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.14 [Emphasis in original.]
Mason fixed on betrayal of the president’s fiduciary duty and oath of allegiance to our system of government, saying that “attempts to subvert the Constitution” would be chief among the “many great and dangerous offences” beyond treason and bribery for which removal of the president would be warranted. It is noteworthy for our purposes that the Framers regarded the mere attempt to subvert the Constitution, whether successful or not, as a sufficiently heinous breach of trust to warrant removal by impeachment.
What distinguishes impeachment from judicial proceedings and technical legal processes is its political aspect. As the Constitution Society’s Jon Roland points out, it was immaterial whether the offenses cited in articles of impeachment “were prohibited by statutes”; what mattered were “the obligations of the offender. . . . The obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.”15
This explanation echoes Joseph Story’s elaboration on the “political character” of impeachment in his seminal 1833 treatise, Commentaries on the Constitution. Justice Story noted that while “crimes of a strictly legal character” would be included, the removal power
has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits and rules and principles of diplomacy, or departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations of foreign as well as domestic political movements; and in short, by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence.16
An essential attribute of criminal laws is definitiveness. Our jurisprudence mandates that the laws put a person of ordinary intelligence on notice about what is prohibited. Otherwise, law enforcement becomes capricious and tyrannical. “High crimes and misdemeanors,” by contrast, is a concept neither conceived for nor applicable to quotidian law enforcement. It is redolent of oath, honor, and fiduciary obligation. These notions, conveying positive duties, are more demanding of the public officials than the clear prohibitions of the criminal law. They are also more abstract: It is not as easy to divine what duty calls for in the various situations a public official confronts as it is to say whether a given private citizen’s course of conduct satisfies the essential elements of a penal statute.
