Above: House Speaker Kevin McCarthy (R.-Calif.)
This essay first appeared in the Sept. 15, 2023 Epoch Times.
For an audio version read by the author, please click here.
House Speaker Kevin McCarthy has announced an impeachment inquiry into the conduct of President Joe Biden. “Impeachment,” of course, doesn’t necessarily mean removal from office. Impeachment is the House of Representatives’ formal accusation, much like a criminal indictment. The Senate tries the case and decides whether to convict and remove.
Most prior impeachments have been dominated by quarrels about when the Constitution allows impeachment. These quarrels may comprise one reason the Senate has never convicted an impeached president.
In 2019, during hearings on the first impeachment of President Donald Trump, four expert witnesses testified on the meaning of the Constitution’s term, “high … Misdemeanors.” Each of the four experts disagreed with the others. None of them made a wholly convincing case.
In 2020, I published conclusions from new research that clarified the actual meaning of “high Misdemeanors” (pdf). No one has attempted to rebut my conclusions.
The research shows beyond serious doubt that in the first Trump impeachment the House adopted an overly broad definition of “high misdemeanors.” In other words, the impeachment was illegitimate. The House arguably made the same mistake as well in the second Trump impeachment.
In their current inquiry, House investigators should be careful not to repeat the errors of their predecessors.
The British and the Framers
Understanding the Constitution’s impeachment and removal procedure requires knowing some history.
The broad outlines of the procedure came from Great Britain. In Britain, impeachment was used to remove the ministers the king or queen relied on. Kings and queens could not themselves be impeached.
The process was this: The lower chamber of Parliament, the House of Commons, would accuse (impeach) a minister or former minister of “breach of trust” and/or “high crimes and [high] misdemeanours” [sic]. In British impeachment proceedings, these phrases amounted to something like our modern term “breach of fiduciary duty” (pdf).
The House of Commons then transmitted its “articles of impeachment” to the House of Lords. The Lords would try the accused. In some cases trials continued for years. After the trial, the Lords voted. They could convict, remove, and punish by a bare majority. There were no limits to possible punishment.
The Constitution’s framers decided against proposing a hereditary or lifetime monarch. Instead, they opted for a president indirectly elected for a short term. But the framers also wanted the president to be almost as independent of Congress as the British king was of Parliament. They feared that Congress might use impeachment and threats of impeachment to subordinate him.
Some framers—such as Gouverneur Morris of Pennsylvania—initially opposed any presidential impeachment procedure. They thought that if the chief executive was to serve only a short term, the way to remove him was to defeat him for reelection. But other framers (including, eventually, Morris) recognized that there had to be some way to remove a criminal president before the end of his term.
So in this respect, as in so many others, the framers compromised.
The Constitution’s Impeachment Rules
The Constitution’s impeachment-and-trial procedure was much more restrictive than British practice. Specifically:
- The House of Representatives, unlike the British House of Commons, could impeach only for the commission of one of four itemized offenses;
- Only the president, vice president, and “civil Officers of the United States” could be impeached—not legislators or prior officials.
- The Senate, like the House of Lords, tried impeachments. But conviction in the Senate required a vote by “two thirds of the Members present”—not merely a majority of the members voting.
- Unlike in Britain, punishment was limited to removal from office and disqualification from future federal office.
The Constitution’s four listed grounds for impeachment were (1) treason, (2) bribery, (3) other high crimes, and (4) “high … Misdemeanors.” The Constitution carefully limited “treason” by defining it with a phrase from an old English statute that restricted treason to fighting or assisting a literal war against the country.
“Bribery” meant accepting something of value for a political decision, even if the bribed person ultimately didn’t deliver what was promised. “High Crimes” were felonies, punishable (in theory, if not always in practice) by death. Examples included treason, murder, rape, and arson.
Constitutional writers have long understood the meaning of the terms “Treason,” “Bribery,” and high Crimes.” But the phrase “high Misdemeanors” was a subject of controversy.
The nature of a “high misdemeanor” was disputed during the first Trump impeachment, as it was disputed in prior presidential impeachments.
However, we now know the answer, because I unearthed it in my 2020 research. More on that in a moment.
There were several reasons why the experts were confused on the issue. One reason was that they relied too much on British impeachment precedents, without sufficiently taking account of the Constitution’s adoption of a much more restricted procedure. (I confess to making this mistake myself prior to my 2020 research.)
Additionally, most writers on the Constitution don’t examine enough sources. In particular, few are familiar with the 18th-century jurisprudence and legal system relied on by the American Founders. Few ever examine a law book other than William Blackstone’s “Commentaries.”
This failure to check the legal sources was encouraged by an error in the most important modern book on impeachments. In that book, the author claimed that the phrase “high misdemeanor” wasn’t a term used in Founding-era law. I discovered that this claim was completely wrong. In fact, the phrase “high misdemeanor” appeared widely in criminal law. And it was the criminal law definition the Founders imported into the Constitution—not the loose usage in British impeachment practice.
The Meaning of ‘High Misdemeanor’
In 18th-century Anglo-American law, the word “misdemeanor” technically denoted any crime. A “high misdemeanor” and its synonyms (“misprison,” “great misdemeanor”) technically included both felonies and those serious crimes punishable by jail, steep fines, and other penalties short of death. In the more common usage adopted in the Constitution, however, those terms excluded capital felonies and denoted only very serious, but non-capital, crimes. Examples of high misdemeanors were attempted murder, receiving stolen goods, assault, and bribery.
Thus, the Constitution’s phrase “Treason, Bribery, or other high Crimes and Misdemeanors” lists one high crime (“Treason”), one high misdemeanor (“Bribery”), and then adds a catch-all phrase covering other crimes in those two general categories.
By requiring proof of a serious crime before a president could be impeached, the Founders guarded against impeachment being employed by Congress to subordinate the president to its will.
Lessons for the Biden Impeachment
Those conducting the Biden impeachment must be careful not to overreach, as their predecessors did in the Trump impeachments. If investigators uncover clear evidence that President Biden accepted bribes in exchange for political favors, then they have a valid basis for impeachment.
But they shouldn’t clutter the articles of impeachment with allegations of mere malpractice or malfeasance. For example, President Biden’s failure to enforce immigration laws is both inexcusable and in violation of his constitutional obligation to “take Care that the Laws be faithfully executed.” But it’s not impeachable.
Concentrating only on the bribery issue also offers impeachment proponents a big political benefit: It’s easy to understand. This is vital in an environment in which the national media are overwhelmingly pro-Biden. The media will do what they can to obfuscate the charges and impugn the motives of the accusers. Keeping the charge simple and clearly criminal can help the accusers cut through the media fog and explain their case to the average citizen.