Stephen Gottlieb: Impeachment – The Legal Question

Apr 3, 2018

For the past two weeks we’ve talked about how impeachment changes the issues surrounding Donald Trump and the political impact of prior impeachments in America. Now we turn to the constitutional language: “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”[1]

Well before the Constitution was written, impeachment began as a wide-open power of the British House of Commons to prosecute people in the House of Lords. But the Commons largely limited themselves to statutory crimes so that the House of Lords would be more likely to convict.

Crossing the waters, colonial legislatures limited themselves to the behavior of public officials. Legislative impeachment of anyone other than public officials would encroach on the job of courts and give legislatures too much power over citizens at large. Impeachment, however, became an important tool in the colonists’ battle with the British Crown.

On independence, legislatures limited themselves to action that affected public duties or danger to the republic. The new governments were to be constrained by rules of fair dealing. Elections did not provide a sufficient check either against mob rule or official chicanery. And public officials were not entitled to dismantle the separation of powers among legislative, executive and judicial departments with separate and complementary duties.

By the time the Constitution was written, the basic elements of impeachment in the thirteen states were unethical conduct that endangered the public or the republic. Statutory penalties were for courts to adjudicate. Political penalties, like removal from office, would still be appropriate for impeachment even for statutory crimes. Impeachments prosecuted in that period included corruption, like bribery, breach of public trust like using powers for personal advantage or to injure others, misuse of power such as bullying private citizens, and undermining the republican character of government with its careful divisions into executive, legislative and judicial powers.

In the Convention, a committee suggested that officials could be removed “for neglect of duty, malversation, or corruption.” Malversation, somewhat redundantly, meant “improper or corrupt behavior in office.”  Before they could vote on it, another committee brought to the floor a proposal that officials could only be impeached for “treason or bribery.” George Mason believed that was much too narrow, and on September 8, 1787 he suggested adding maladministration as an additional ground. His proposal was defeated, but in response, he proposed the language we now have, “high crimes and misdemeanors,” and it passed. “Misdemeanors” had been mentioned but once during the Convention and only in the context of crimes at sea. A widely consulted legal text of the era, however, defined misdemeanor as “smaller faults and omissions of less consequence than ‘crimes.’” That definition seems broader than “maladministration” and could easily encompass “neglect of duty, malversation, or corruption.”[2] But then why were those terms taken out? In The Federalist, Hamilton explained that the grounds of impeachment came from “the abuse or violation of some public trust,”[3] essentially supporting Mason’s approach. Their view quickly became standard.

The larger point is that the Founders sought a method to protect the republican character of the Constitution, enable the legislature to stop corruption, and to make sure that the president would faithfully execute the laws, respect the rights of citizens and obey the checks on official power built into the Constitution and principles of republic government. That forms the basic understanding of what the impeachment clause was designed to accomplish, and why some presidents would need to be impeached. Proposed articles of impeachment should be compared to those great purposes.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School. A widely recognized constitutional scholar, he has served on the New York Civil Liberties Union board, the New York Advisory Committee to the U.S. Civil Rights Commission and was a US Peace Corps Volunteer in Iran. His latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

[1] U.S. Const., Art. II, §4. Strictly speaking, impeachment refers to the charges voted by the House of Representatives for trial in the Senate. Removal is the result of conviction by the Senate. Art. I, §2, ¶5 and §3, ¶6.

[2] See Records of the Federal Convention of 1787, vol. 2 at 550 (Max Farrand, ed., Yale U. Press, 1966); Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 (Yale U. Press 1984).

[3] Alexander Hamilton, James Madison and John Jay, The Federalist, No. 65 (Hamilton) at 396 (Clinton Rossiter ed., New American Library 1961).