Neglected 18th-century legal sources have cleared up the long disputed meaning of “high . . . Misdemeanors” as that term appears in the Constitution. The result is to resolve a long-standing dispute over whether non-criminal behavior is impeachable.
The answer is “no.”
Federal officials can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” Founding-era evidence tells us that “high” modifies “Misdemeanors” as well as “Crimes.”
The meaning of “high . . . Misdemeanors” has been argued for many years, as shown by the disparate views among four law professors who testified at the impeachment hearings on President Trump. However, no one seems to have examined 18th century law books (other than Blackstone’s Commentaries) for an answer.
Rob Natelson is the first to do so. He found that “high misdemeanors” encompassed treason, other felonies, and also crimes that were serious, but not so serious that they merited the death penalty, as felonies usually did. High misdemeanors that were not felonies were punished with incarceration, stiff fines, and the pillory. Examples of high misdemeanors that were not felony were bribery, assault, and attempted murder.
Thus, the Constitution’s phrase gives one example of a high crime (treason), one example of a non-felony high misdemeanor (bribery), and two general phrases to cover other crimes in those categories.
The article, while heavily footnoted, is relatively short for a work of legal scholarship because the sources are so unequivocal. You can read the article here.