High Crimes and Misdemeanors Explained

What Acts Have Been Considered 'Impeachable Offenses?'

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Longley, Robert. "High Crimes and Misdemeanors Explained." ThoughtCo, May. 23, 2017, thoughtco.com/high-crimes-and-misdemeanors-definition-4140196. Longley, Robert. (2017, May 23). High Crimes and Misdemeanors Explained. Retrieved from https://www.thoughtco.com/high-crimes-and-misdemeanors-definition-4140196 Longley, Robert. "High Crimes and Misdemeanors Explained." ThoughtCo. https://www.thoughtco.com/high-crimes-and-misdemeanors-definition-4140196 (accessed September 19, 2017).
President Clinton and Hillary Clinton in front of White House Christmas Wreath
President Clinton and Hillary Rally to Fight Impeachment. Richard Ellis / Hulton Archive

“High Crimes and Misdemeanors” is the rather ambiguous phrase most often cited as grounds for the impeachment of U.S. federal government officials, including the President of the United States. What are High Crimes and Misdemeanors?

Background

Article II, Section 4 of the U.S. Constitution provides that, “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.”

The Constitution also provides the steps of the impeachment process leading to the possible removal from office of the president, vice president, federal judges, and other federal officials. Briefly, the impeachment process is initiated in the House of Representatives and follows these steps:

  • The House Judiciary Committee considers evidence, holds hearings, and if necessary, prepares articles of impeachment – the actual charges against the official.
  • If a majority of the Judiciary committee votes to approve the articles of impeachment, the full House debates and votes on them.
  • If a simple majority of the House votes to impeach the official on any or all of the articles of impeachment, then the official must then stand trial in the Senate.
  • If a two-thirds supermajority of the Senate votes to convict the official, the official is immediately removed from office. In addition, the Senate may also vote to forbid the official from holding any federal office in the future.

    While Congress has no power to impose criminal penalties, such as prison or fines, impeached and convicted officials may subsequently be tried and punished in the courts if they have committed criminal acts.

    The specific grounds for impeachment set by the Constitution are, “treason, bribery, and other high crimes and misdemeanors.” In order to be impeached and removed from office, the House and Senate must find that the official had committed at least one of these acts.

    To date, no federal official has faced impeachment based on grounds of treason. While one federal judge was impeached and removed from the bench for advocating in favor of succession and serving as a judge for the Confederacy during the Civil War, the impeachment was based on charges of refusing to hold court as sworn, rather than treason.

    Only two officials—both federal judges—have faced impeachment based on charges that specifically involved bribery or accepting gifts from litigants and both were removed from office.

    All of the other impeachment proceedings held against all federal officials to date have been based on charges of “high crimes and misdemeanors.”

    What are High Crimes and Misdemeanors?

    The term “high crimes” is often assumed to mean “felonies.” However, felonies are major crimes, while misdemeanors are less serious crimes. So under this interpretation, “high crimes and misdemeanors” would refer to any crime, which is not the case.

    Where Did the Term Come From?

    At the Constitutional Convention in 1787, the framers of the Constitution viewed impeachment to be an essential part of the system of separation of powers providing each of the three branches of government ways to check the powers of the other branches.

    Impeachment, they reasoned, would give the legislative branch one means of checking the power of the executive branch.

    Many of the framers considered Congress’ power to impeach federal judges to be of great importance, since they would be appointed for life. However, some of the framers opposed providing for the impeachment of executive branch officials, because the power of the president could be checked every four years by the American people through the electoral process.

    In the end, James Madison of Virginia convinced a majority of the delegates that being able to replace a president only once every four years did not adequately check the powers of a president who became physically unable to serve or abused the executive powers. As Madison argued, “loss of capacity, or corruption . . . might be fatal to the republic” if the president could be replaced only through an election.

    The delegates then considered the grounds for impeachment. A select committee of delegates recommended “treason or bribery” as the only grounds. However, George Mason of Virginia, feeling that bribery and treason were only two of the many ways a president could willfully harm the republic, proposed adding “maladministration” to the list of impeachable offenses.

    James Madison argued that “maladministration” was so vague that it might allow Congress to remove presidents based purely on a political or ideological bias. This, argued Madison, would violate the separation of powers by giving the legislative branch total power over the executive branch.

    George Mason agreed with Madison and proposed “high crimes and misdemeanors against the state.” In the end, the convention reached a compromise and adopted “treason, bribery, or other high crimes and misdemeanors” as it appears in the Constitution today.

    In the Federalist Papers, Alexander Hamilton explained the concept of impeachment to the people, defining impeachable offenses as “those offences 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.”

    According to the History, Arts, and Archives of the House of Representatives, impeachment proceedings against federal officials have been initiated more than 60 times since the Constitution was ratified in 1792. Of those, fewer than 20 have resulted in actual impeachment and only eight – all federal judges – have been convicted by the Senate and removed from office.

    The “high crimes and misdemeanors” alleged to have been committed by the impeached judges have included using their position for financial gain, showing overt favoritism to litigants, income tax evasion, the disclosure of confidential information, unlawfully charging people with contempt of court, filing false expense reports, and habitual drunkenness.

    To date, only three cases of impeachment have involved presidents: Andrew Johnson in 1868, Richard Nixon in 1974, and Bill Clinton in 1998. While none of them were convicted in the Senate and removed from office through impeachment, their cases help reveal Congress’ likely interpretation of “high crimes and misdemeanors.”

    Andrew Johnson

    As the lone U.S. Senator from a Southern state to remain loyal to the Union during the Civil War, Andrew Johnson was chosen by President Abraham Lincoln to be his vice-presidential running mate in the 1864 election. Lincoln had believed Johnson, as vice president, would help in negotiating with the South. However, shortly after taking over the presidency due to Lincoln’s assassination in 1865, Johnson, a Democrat, ran into trouble with the Republican-dominated Congress over the Reconstruction of the South.

    As fast as Congress passed Reconstruction legislation, Johnson would veto it. Just as quickly, Congress would override his veto. The growing political friction came to a head when Congress, over Johnson’s veto, passed the long ago repealed Tenure of Office Act, which required the president to get the approval of Congress to fire any executive branch appointee that had been confirmed by Congress.

    Never one to back down to Congress, Johnson immediately fried Republican secretary of war, Edwin Stanton. Though Stanton’s firing clearly violated the Tenure of Office Act, Johnson simply stated that the considered the act to be unconstitutional. In response, the House passed 11 articles of impeachment against Johnson as follows:

    • Eight for violations of the Tenure of Office Act;
    • One for using improper channels to send orders to executive branch officers;
    • One for conspiring against Congress by publicly stating that Congress did not truly represent the Southern states; and
    • One for failure to enforce various provisions of the Reconstruction Acts.

    The Senate, however, voted on only three of the charges, finding Johnson not guilty by a single vote in each case.

    While the charges against Johnson are considered to have been politically motivated and not worthy of impeachment today, they serve as an example of actions that have been interpreted as “high crimes and misdemeanors.”

    Richard Nixon

    Shortly after Republican President Richard Nixon had easily won reelection to a second term in 1972, it was revealed that during the election, persons with ties to the Nixon campaign had broken into the Democratic Party national headquarters at the Watergate Hotel in Washington, D.C.

    While it was never proven that Nixon had known about or ordered the Watergate burglary, the famed Watergate tapes – voice recordings of Oval Office conversations – would confirm that Nixon had personally attempted to obstruct the Justice Department’s Watergate investigation. On the tapes, Nixon is heard suggesting paying the burglars “hush money” and ordering the FBI and CIA to influence the investigation in his favor.

    On July 27, 1974, the House Judiciary Committee passed three articles of impeachment charging Nixon with obstruction of justice, abuse of power, and contempt of Congress by his refusal to honor the committee’s requests to produce related documents.

    While never admitting having a role in either the burglary or the cover-up, Nixon resigned on August 8, 1974, before the full House voted on the articles of impeachment against him. “By taking this action,” he said in a televised address from the Oval Office, “I hope that I will have hastened the start of the process of healing which is so desperately needed in America.”

    Nixon’s vice president and successor, President Gerald Ford eventually pardoned Nixon for any crimes he may have committed while in office.

    Interestingly, the Judiciary Committee had refused to vote on a proposed article of impeachment charging Nixon with tax evasion because the members did not consider it to be an impeachable offense.

    The committee based its opinion of a special House staff report titled, Constitutional Grounds for Presidential Impeachment, which concluded, “Not all presidential misconduct is sufficient to constitute grounds for impeachment. . . . Because impeachment of a President is a grave step for the nation, it is predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.”

    Bill Clinton

    First elected in 1992, President Bill Clinton was reelected in 1996. Scandal in Clinton’s administration began during his first term when the Justice Department appointed an independent counsel to investigate the president’s involvement in “Whitewater,” a failed land development investment deal that had taken place in Arkansas some 20 years earlier. 

    The Whitewater investigation blossomed to include scandals including Clinton’s questionable firing of members of the White House travel office, referred to as “Travelgate,” the misuse of confidential FBI records, and of course, Clinton’s infamous illicit affair with White House intern Monica Lewinsky.

    In 1998, a report to the House Judiciary Committee from Independent Counsel Kenneth Starr listed 11 potentially impeachable offenses, all related only to the Lewinsky scandal.

    The Judiciary Committee passed four articles of impeachment accusing Clinton of:

    • Perjury in his testimony before a grand jury assembled by Starr;
    • Providing “perjurious, false and misleading testimony” in a separate lawsuit related to the Lewinsky affair;
    • Obstruction of justice in an attempt to “delay, impede, cover up and conceal the existence” of evidence; and
    • Abuse and misuse of presidential powers by lying to the public, misinforming his cabinet and White House staff to gain their public support, wrongly claiming executive privilege, and refusing to respond to the committee’s questions.

    Legal and constitutional experts who testified at the Judiciary Committee hearing gave differing opinions of what “high crimes and misdemeanors” might be.

    Experts called by congressional Democrats testified that none of Clinton’s alleged acts amounted to “high crimes and misdemeanors” as envisioned by the framers of the Constitution.

    These experts cited Yale Law School professor Charles L. Black’s 1974 book, Impeachment: A Handbook, in which he argued that impeaching a president effectively overturns an election and thus the will of the people. As a result, Black reasoned, presidents should be impeached and removed from office only if proven guilty of “serious assaults on the integrity of the processes of government,” or for “such crimes as would so stain a president as to make his continuance in office dangerous to public order.”

    Black’s book cites two examples of acts that, while federal crimes, would not warrant the impeachment of a president: transporting a minor across state lines for “immoral purposes” and obstructing justice by helping a White House staff member conceal marijuana.

    On the other hand, experts called by congressional Republicans argued that in his acts related to the Lewinsky affair, President Clinton had violated his oath to uphold the laws and failed to faithfully carry out his duties as the government’s chief law enforcement officer.

    In the Senate trial, where 67 votes are required to remove an impeached official from office, only 50 Senators voted to remove Clinton on charges of obstruction of justice and only 45 Senators voted to remove him on the charge of perjury. Like Andrew Johnson a century before him, Clinton was acquitted by the Senate.

    Last Thoughts on ‘High Crimes and Misdemeanors’

    In 1970, then-Representative Gerald Ford, who would become president after the resignation of Richard Nixon in 1974, made a notable statement about the charges of “high crimes and misdemeanors” in impeachment.

    After several failed attempts to convince the House to impeach a liberal Supreme Court justice, Ford stated that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Ford reasoned that “there are few fixed principles among the handful of precedents.”

    According to constitutional lawyers, Ford was both right and wrong. He was right in the sense that the Constitution does give the House the exclusive power to initiate impeachment. The vote of the House to issue articles of impeachment cannot be challenged in the courts.

    However, the Constitution does not give Congress the power to remove officials from office due to political or ideological disagreements. In order to ensure the integrity of the separation of powers, the framers of the Constitution intended that Congress should use its impeachment powers only when executive officials had committed “treason, bribery, or other high crimes and misdemeanors” which substantially damaged the integrity and effectiveness of government. 

    Format
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    Your Citation
    Longley, Robert. "High Crimes and Misdemeanors Explained." ThoughtCo, May. 23, 2017, thoughtco.com/high-crimes-and-misdemeanors-definition-4140196. Longley, Robert. (2017, May 23). High Crimes and Misdemeanors Explained. Retrieved from https://www.thoughtco.com/high-crimes-and-misdemeanors-definition-4140196 Longley, Robert. "High Crimes and Misdemeanors Explained." ThoughtCo. https://www.thoughtco.com/high-crimes-and-misdemeanors-definition-4140196 (accessed September 19, 2017).