What are “High Crimes & Misdemeanors”?

The following opinion was written by a former member of the United States House of Representatives:

“The words “high crimes and misdemeanors” of all precise and definitive meaning, making offences impeachable that are not indictable at all, either by common law or statute, is a world too wide. The same line of argument they followed to refute the extreme conclusion of their opponents applies with equal force to their own.

The history of the words in the convention that framed the Constitution, as narrated by (James) Madison, seems decisive of the controversy. The original proposition submitted was to make the President removable on impeachment and conviction “for mal or corrupt conduct,” or “for malpractice or neglect of duty.”

Afterwards, the clause was modified so as to read “for treason, bribery, or corruption,” and finally confined to “treason and bribery” alone. When, after being so amended, it was taken up once more for consideration, Colonel (George) Mason moved to add “mal-administration.”

“Madison objecting that so vague a term would be equivalent to a tenure during the pleasure of the Senate.”  *James Madison, America’s 4th President, was also known as the “Father of the Constitution.”

Mason withdrew the word and substituted ”other high crimes and misdemeanors against the State,” which was agreed to, and on the general revision the last three words were deleted as superfluous.

The progression of Constitutional terminology, re: ‘high crimes and misdemeanors’:

  1. Original proposition: “mal or corrupt conduct”
  2. Modified: malpractice or neglect of duty”
  3. Modified: “treason, bribery, or corruption”
  4. Modified: “treason and bribery” alone
  5. Proposition to amend: “treason, bribery and mal-administration
  6. Modified: “treason, bribery or other high crimes and misdemeanors against the States” The Final Clause: “treason, bribery or other high crimes and misdemeanors”

So that, if any construction of a constitutional provision by resorting to its origin and gestation was ever valid, the phrase “other high crimes and misdemeanors used in the Constitution must be held to mean only such malfeasance in office as constituted at common law a high crime or a high misdemeanor of a kindred grade, respectively, with treason or bribery.”—The Impeachment and Trial of Andrew Johnson, 17th President of the United States; by David Miller DeWitt; 1903. (U.S. Rep. David M. DeWitt; (D-NY) Attorney, Author.)

“Consider the 1868 impeachment of President Andrew Johnson, who escaped removal from office by one vote in the Senate. John F. Kennedy, in his 1955 book Profiles In Courage, celebrated Senator Edmund Ross’ swing vote for Johnson’s acquittal. Kennedy, echoing Madison’s fears of a Senate overthrowing Presidents for political reasons, declared that Ross “may well have preserved for ourselves and posterity Constitutional government in the United States.”—Smithsonian.
A political, partisan driven impeachment?
In this opinion, *former U.S. Representative Bob Barr, accurately predicted the outcome of the midterm elections: “Trump is headed for impeachment if Republicans don’t do these things to hold the House.” Fox News; June 13, 2018. *(1995-2003)
  1. The 1st President impeached: President Andrew Johnson was impeached (February, 1868) by the United States House of Representatives–on eleven Articles of impeachment for his supposed “high crimes and misdemeanors.” He was acquitted by the U.S. Senate on May 16, 1868.  ¹

“The impeachment and trial of Andrew Johnson had important political implications for the balance of federal legislative–executive power. It maintained the principle that Congress should not remove the President from office simply because its members disagreed with him over policy, style, and administration of the office.”  ¹

“What is Impeachment?”—A video from PragerU

“Forever Impeached”?

‘Impeached’ (to accuse) is a word that does not accurately describe its meaning when used in the context related to this matter. There has never been a U.S. President removed from office—as the result of a ‘House’ vote to impeach him. The removal of a President cannot occur unless the Senate convicts him of the charges alleged by the House. The Senate has the sole right to convict, or acquit. Considering this, the word ‘impeach’ (in a perfect world) should have no past tense meaning, in the absence of a Senate conviction.

“Nothing less than the gravest executive wrongdoing can justify impeachment. The Constitution leaves lesser wrongs to the political process and to public opinion.”—Memorandum Regarding Standards For Impeachment; October 2, 1998. (A memorandum generated during President Clinton’s impeachment proceedings)

“Article III of the Constitution of the United States guarantees that every person accused of wrongdoing has the right to a fair trial before a competent judge and a jury of one’s peers. The Fourth, Fifth, and Sixth Amendments to the Constitution provide additional protections for those accused of a crime. These include:

  • A guarantee that no person shall be deprived of life, liberty, or property without the due process of law
  • Protection against being tried for the same crime twice (“double jeopardy”)
  • The right to a speedy trial by an impartial jury
  • The right to cross-examine witnesses, and to call witnesses to support their case
  • The right to legal representation
  • The right to avoid self-incrimination
  • Protection from excessive bail, excessive fines, and cruel and unusual punishments—The Judicial Branch

2. The 2nd President impeached: President William ‘Bill’ Clinton was impeached on four Articles of impeachment by the United States House of Representatives on December 19, 1998. It was said that ‘Clinton had committed at least 11 felonies’. He was acquitted by the U.S. Senate on February 9, 1999.  ¹

Forever Acquitted?

3. The 3rd President impeached: President Donald J. Trump was impeached on two Articles of impeachment by the United States House of Representatives on December 18, 2019. At the trial in the U.S. Senate, he was found not guilty and acquitted of both charges (by a simple majority vote) on February 5th, 2020.

“Will Republicans move to expunge Trump’s impeachment if they win back the House?” Fox News; 2/7/2020. Read more about this here.

*President Nixon was not impeached. He resigned from the Presidency on August 9, 1974. Previous to his resignation, “the House Judicial Committee had approved three Articles of impeachment against him. The full House never voted on his impeachment.”—Smithsonian.

“The Democrats closed their eyes to the constitutional requirements for impeachment and decided they were going to impeach the President simply because they hated him and wanted to besmirch his record in order to make it more difficult for him to be re-elected.”—The Impeachment Debacle; by Dr. David Reagan. Read more from this article here.

“High crimes and misdemeanors” is a phrase from Section 4 of Article Two of the United States Constitution: “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.”  ¹