[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 14. Impeachment Powers]
[Appendix]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 2247-2273]
CHAPTER 14
Impeachment Powers
D. HISTORY OF PROCEEDINGS
APPENDIX
Report by the Staff of the Impeachment Inquiry on the Constitutional
Grounds for Presidential Impeachment, Committee Print, Committee on the
Judiciary, 93d Cong. 2d Sess., Feb. 1974
I. Introduction
The Constitution deals with the subject of impeachment and
conviction at six places. The scope of the power is set out in Article
II, Section 4:
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.
Other provisions deal with procedures and consequences. Article I,
Section 2 states:
The House of Representatives . . . shall have the sole Power of
Impeachment.
Similarly, Article I, Section 3, describes the Senate's role:
The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or
Affirmation. When the President of the United States is tried, the
Chief Justice shall preside: And no Person shall be convicted
without the Concurrence of two thirds of the Members present.
The same section limits the consequences of judgment in cases of
impeachment:
Judgment in Cases of Impeachment shall not extend further than
to removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States: but the
Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.
Of lesser significance, although mentioning the subject, are:
Article II, Section 2:
The President . . . shall have Power to grant Reprieves and
Pardons for Offences against the United States, except in Cases of
Impeachment.
Article III, Section 2:
The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury. . . .
Before November 15, 1973 a number of Resolutions calling for the
impeachment of President Richard M. Nixon had been introduced in the
House of Representatives, and had been referred by the Speaker of the
House, Hon. Carl Albert, to the Committee on the Judiciary for
consideration, investigation and report. On November 15, anticipating
the magnitude of the Committee's task, the House voted funds to enable
the Committee to carry out its assignment and in that regard to select
an inquiry staff to assist the Committee.
On February 6, 1974, the House of Representatives by a vote of 410
to 4
[[Page 2248]]
``authorized and directed'' the Committee on the Judiciary ``to
investigate fully and completely whether sufficient grounds exist for
the House of Representatives to exercise its constitutional power to
impeach Richard M. Nixon, President of the United States of America.''
To implement the authorization (H. Res. 803) the House also
provided that ``For the purpose of making such investigation, the
committee is authorized to require . . . by subpoena or otherwise . . .
the attendance and testimony of any person . . . and . . . the
production of such things; and . . . by interrogatory, the furnishing
of such information, as it deems necessary to such investigation.''
This was but the second time in the history of the United States
that the House of Representatives resolved to investigate the
possibility of impeachment of a President. Some 107 years earlier the
House had investigated whether President Andrew Johnson should be
impeached. Understandably, little attention or thought has been given
the subject of the presidential impeachment process during the
intervening years. The Inquiry Staff, at the request of the Judiciary
Committee, has prepared this memorandum on constitutional grounds for
presidential impeachment. As the factual investigation progresses, it
will become possible to state more specifically the constitutional,
legal and conceptual framework within which the staff and the Committee
work.
Delicate issues of basic constitutional law are involved. Those
issues cannot be defined in detail in advance of full investigation of
the facts. The Supreme Court of the United States does not reach out,
in the abstract, to rule on the constitutionality of statutes or of
conduct. Cases must be brought and adjudicated on particular facts in
terms of the Constitution. Similarly, the House does not engage in
abstract, advisory or hypothetical debates about the precise nature of
conduct that calls for the exercise of its constitutional powers;
rather, it must await full development of the facts and understanding
of the events to which those facts relate.
What is said here does not reflect any prejudgment of the facts or
any opinion or inference respecting the allegations being investigated.
This memorandum is written before completion of the full and fair
factual investigation the House directed be undertaken. It is intended
to be a review of the precedents and available interpretive materials,
seeking general principles to guide the Committee.
This memorandum offers no fixed standards for determining whether
grounds for impeachment exist. The framers did not write a fixed
standard. Instead they adopted from English history a standard
sufficiently general and flexible to meet future circumstances and
events, the nature and character of which they could not foresee.
The House has set in motion an unusual constitutional process,
conferred solely upon it by the Constitution, by directing the
Judiciary Committee to ``investigate fully and completely whether
sufficient grounds exist for the House of Representatives to exercise
its constitutional power to impeach.'' This action was not partisan. It
was supported by the overwhelming majority of both political parties.
Nor was it intended to obstruct or weaken the presidency. It was
supported by Members firmly committed to the need for a strong
presidency and a healthy executive branch of our government. The House
of Representatives acted out of a clear sense of constitu
[[Page 2249]]
tional duty to resolve issues of a kind that more familiar
constitutional processes are unable to resolve.
To assist the Committee in working toward that resolution, this
memorandum reports upon the history, purpose and meaning of the
constitutional phrase, ``Treason, Bribery, or other high Crimes and
Misdemeanors.''
II. The Historical Origins of Impeachment
The Constitution provides that the President ``. . . shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.'' The framers could
have written simply ``or other crimes''--as indeed they did in the
provision for extradition of criminal offenders from one state to
another. They did not do that. If they had meant simply to denote
seriousness, they could have done so directly. They did not do that
either. They adopted instead a unique phrase used for centuries in
English parliamentary impeachments, for the meaning of which one must
look to history.
The origins and use of impeachment in England, the circumstances
under which impeachment became a part of the American constitutional
system, and the American experience with impeachment are the best
available sources for developing an understanding of the function of
impeachment and the circumstances in which it may become appropriate in
relation to the presidency.
A. The English Parliamentary Practice
Alexander Hamilton wrote, in No. 65 of The Federalist, that Great
Britain had served as ``the model from which [impeachment] has been
borrowed.'' Accordingly, its history in England is useful to an
understanding of the purpose and scope of impeachment in the United
States.
Parliament developed the impeachment process as a means to exercise
some measure of control over the power of the King. An impeachment
proceeding in England was a direct method of bringing to account the
King's ministers and favorites--men who might otherwise have been
beyond reach. Impeachment, at least in its early history, has been
called ``the most powerful weapon in the political armoury, short of
civil war.'' (1) It played a continuing role in the
struggles between King and Parliament that resulted in the formation of
the unwritten English constitution. In this respect impeachment was one
of the tools used by the English Parliament to create more responsive
and responsible government and to redress imbalances when they
occurred.(2)
---------------------------------------------------------------------------
1. Plucknett, ``Presidential Address'' reproduced in 3 Transactions,
Royal Historical Society, 5th Series, 145 (1952).
2. See generally C. Roberts, The Growth of Responsible Government in
Stuart England (Cambridge 1966).
---------------------------------------------------------------------------
The long struggle by Parliament to assert legal restraints over the
unbridled will of the King ultimately reached a climax with the
execution of Charles I in 1649 and the establishment of the
Commonwealth under Oliver Cromwell. In the course of that struggle,
Parliament sought to exert restraints over the King by removing those
of his ministers who most effectively advanced the King's absolutist
purposes. Chief among them was
[[Page 2250]]
Thomas Wentworth, Earl of Strafford. The House of Commons impeached him
in 1640. As with earlier impeachments, the thrust of the charge was
damage to the state.(3) The first article of impeachment
alleged.(4)
---------------------------------------------------------------------------
3. Strafford was charged with treason, a term defined in 1352 by the
Statute of Treasons. 25 Edw. 3, stat. 5, c. 2 (1352). The
particular charges against him presumably would have been
within the compass of the general, or ``salvo,'' clause of that
statute, but did not fall within any of the enumerated acts of
treason. Strafford rested his defense in part on that failure;
his eloquence on the question of retrospective treasons
(``Beware you do not awake these sleeping lions, by the
searching out some neglected moth-eaten records, they may one
day tear you and your posterity in pieces: it was your
ancestors' care to chain them up within the barricadoes of
statutes; be not you ambitious to be more skillful and curious
than your forefathers in the art of killing.'' Celebrated
Trials 518 [Phila. 1837]) may have dissuaded the Commons from
bringing the trial to a vote in the House of Lords: instead
they caused his execution by bill of attainder.
4. J. Rushworth, The Tryal of Thomas Earl of Strafford, in 8
Historical Collections 8 (1686).
---------------------------------------------------------------------------
That he . . . hath traiterously endeavored to subvert the
Fundamental Laws and Government of the Realms . . . and in stead
thereof, to introduce Arbitrary and Tyrannical Government against
Law. . . .
The other articles against Strafford included charges ranging from
the allegation that he had assumed regal power and exercised it
tyrannically to the charge that he had subverted the rights of
Parliament.(5)
---------------------------------------------------------------------------
5. Rushworth, supra n. 4, at 8-9. R. Berger, Impeachment: The
Constitutional Problems 30 (1973), states that the impeachment
of Strafford ``. . . constitutes a great watershed in English
constitutional history of which the Founders were aware.''
---------------------------------------------------------------------------
Characteristically, impeachment was used in individual cases to
reach offenses, as perceived by Parliament, against the system of
government. The charges, variously denominated ``treason,'' ``high
treason,'' ``misdemeanors,'' ``malversations,'' and ``high Crimes and
Misdemeanors,'' thus included allegations of misconduct as various as
the kings (or their ministers) were ingenious in devising means of
expanding royal power.
At the time of the Constitutional (Convention the phrase ``high
Crimes and Misdemeanors'' had been in use for over 400 years in
impeachment proceedings in Parliament.(6) It first appears
in 1386 in the impeachment of the King's Chancellor, Michael de la
Pole, Earl of Suffolk.(7) Some of the charges may have
involved common law offenses.(8) Others
[[Page 2251]]
plainly did not: de la Pole was charged with breaking a promise he made
to the full Parliament to execute in connection with a parliamentary
ordinance the advice of a committee of nine lords regarding the
improvement of the estate of the King and the realm; ``this was not
done, and it was the fault of himself as he was then chief officer.''
He was also charged with failing to expend a sum that Parliament had
directed be used to ransom the town of Ghent, because of which ``the
said town was lost.'' (9)
---------------------------------------------------------------------------
6. See generally A. Simpson, A Treatise on Federal Impeachments 81-190
(Philadelphia, 1916) (Appendix of English Impeachment Trials);
M. V. Clarke, ``The Origin of Impeachment'' in Oxford Essays in
Medieval History 164 (Oxford, 1934). Reading and analyzing the
early history of English impeachments is complicated by the
paucity and ambiguity of the records. The analysis that follows
in this section has been drawn largely from the scholarship of
others, checked against the original records where possible.
The basis for what became the impeachment procedure
apparently originated in 1341, when the King and Parliament
alike accepted the principle that the King's ministers were to
answer in Parliament for their misdeeds. C. Roberts, supra n.
2, at 7. Offenses against Magna Carta, for example, were
failing for technicalities in the ordinary courts, and
therefore Parliament provided that offenders against Magna
Carta be declared in Parliament and judged by their peers.
Clarke, supra, at 173.
7. Simpson, supra n. 6, at 86; Berger, supra n. 5, at 61, Adams and
Stevens, Select Documents of English Constitutional History 148
(London, 1927).
8. For example, de la Pole was charged with purchasing property of
great value from the King while using his position as
Chancellor to have the lands appraised at less than they were
worth, all in violation of his oath, in deceit of the King and
in neglect of the need of the realm. Adams and Stevens, supra
n. 7, at 148.
9. Adams and Stevens, supra n. 7, at 148-150.
---------------------------------------------------------------------------
The phrase does not reappear in impeachment proceedings until 1450.
In that year articles of impeachment against William de la Pole, Duke
of Suffolk (a descendant of Michael), charged him with several acts of
high treason, but also with ``high Crimes and Misdemeanors,''
(10) including such various offenses as ``advising the King
to grant liberties and privileges to certain persons to the hindrance
of the due execution of the laws'' ``procuring offices for persons who
were unfit, and unworthy of them'' and ``squandering away the public
treasure.'' (11)
---------------------------------------------------------------------------
10. 4 Hatsell 67 (Shannon, Ireland, 1971, reprint of London 1796,
1818).
11. 4 Hatsell, supra n. 10, at 67, charges 2, 6 and 12.
---------------------------------------------------------------------------
Impeachment was used frequently during the reigns of James I (1603-
1625) and Charles I (1628-1649). During the period from 1620 to 1649
over 100 impeachments were voted by the House of
Commons.(12) Some of these impeachments charged high
treason, as in the case of Strafford; others charged high crimes and
misdemeanors. The latter included both statutory offenses, particularly
with respect to the Crown monopolies, and nonstatutory offenses. For
example, Sir Henry Yelverton, the King's Attorney General, was
impeached in 1621 of high crimes and misdemeanors in that he failed to
prosecute after commencing suits, and exercised authority before it was
properly vested in him.(13)
---------------------------------------------------------------------------
12. The Long Parliament (1640-48) alone impeached 98 persons. Roberts
supra n. 2, at 133.
13. 2 Howell State Trials 1135, 1136-37 (charges 1, 2 and 6). See
generally Simpson, supra n. 6, at 91-127; Berger, supra n. 5,
at 67-73.
---------------------------------------------------------------------------
There were no impeachments during the Commonwealth (1649-1660).
Following the end of the Commonwealth and the Restoration of Charles II
(1660-1685) a more powerful Parliament expanded somewhat the scope of
``high Crimes and Misdemeanors'' by impeaching officers of the Crown
for such things as negligent discharge of duties (14) and
improprieties in office.(15)
---------------------------------------------------------------------------
14. Peter Pett, Commissioner of the Navy, was charged in 1668 with
negligent preparation for an invasion by the Dutch, and
negligent loss of a ship. The latter charge was predicated on
alleged willful neglect in failing to insure that the ship was
brought to a mooring. 6 Howell State Trials 865, 866-67
(charges 1, 5).
15. Chief Justice Scroggs was charged in 1680, among other things, with
browbeating witnesses and commenting on their credibility, and
with cursing and drinking to excess, thereby bringing ``the
highest scandal on the public justice of the kingdom.'' 8
Howell State Trials 197, 200 (charges 7, 8).
---------------------------------------------------------------------------
The phrase ``high Crimes and Misdemeanors'' appears in nearly all
of the comparatively few impeachments that occurred in the eighteenth
century. Many of the charges involved abuse of official power or trust.
For example, Edward, Earl of Oxford, was charged in 1701 with
``violation of his duty and trust'' in that,
[[Page 2252]]
while a member of the King's privy council, he took advantage of the
ready access he had to the King to secure various royal rents and
revenues for his own use, thereby greatly diminishing the revenues of
the crown and subjecting the people of England to ``grievous
taxes.''(16), Oxford was also charged with procuring a naval
commission for William Kidd, ``known to be a person of ill fame and
reputation,'' and ordering him ``to pursue the intended voyage, in
which Kidd did commit diverse piracies . . . being thereto encouraged
through hopes of being protected by the high station and interest of
Oxford, in violation of the law of nations, and the interruption and
discouragement of the trade of England.''(17)
---------------------------------------------------------------------------
16. Simpson, supra n. 6, at 144.
17. Simpson, supra n. 6, at 144.
---------------------------------------------------------------------------
The impeachment of Warren Hastings, first attempted in 1786 and
concluded in 1795,(18) is particularly important because
contemporaneous with the American Convention debates. Hastings was the
first Governor-General of India. The articles indicate that Hastings
was being charged with high crimes and misdemeanors in the form of
gross maladministration, corruption in office, and cruelty toward the
people of India.(19)
---------------------------------------------------------------------------
18. See generally Marshall, The Impeachment of Warren Hastings (Oxford,
1965).
19. Of the original resolutions proposed by Edmund Burke in 1786 and
accepted by the House as articles of impeachment in 1787, both
criminal and non-criminal offenses appear. The fourth article,
for example, charging that Hastings had confiscated the landed
income of the Begums of Oudh, was described by Pitt as that of
all others that bore the strongest marks of criminality,
Marshall, supra, n. 19, at 53.
The third article, on the other hand, known as the Benares
charge, claimed that circumstances imposed upon the Governor-
General duty to conduct himself ``on the most distinguished
principles of good faith, equity, moderation and mildness.''
Instead, continued the charge, Hastings provoked a revolt in
Benares, resulting in ``the arrest of the rajah, three
revolutions in the country and great loss, whereby the said
Hastings is guilty of a high crime and misdemeanor in the
destruction of the country aforesaid.'' The Commons accepted
this article, voting 119-79 that these were grounds for
impeachment. Simpson, supra n. 6, at 168-170; Marshall, supra
n. 19, at xv, 46.
---------------------------------------------------------------------------
Two points emerge from the 400 years of English parliamentary
experience with the phrase ``high Crimes and Misdemeanors.'' First, the
particular allegations of misconduct alleged damage to the state in
such forms as misapplication of funds, abuse of official power, neglect
of duty, encroachment on Parliament's prerogatives, corruption, and
betrayal of trust.(20) Second, the phrase ``high Crimes and
Misdemeanors'' was confined to parliamentary impeachments; it had no
roots in the ordinary criminal law,(21) and the particular
allegations of misconduct under that heading were not necessarily
limited to common law or statutory derelictions or crimes.
---------------------------------------------------------------------------
20. See, e.g., Berger, supra n. 5, at 70-71.
21. Berger, supra n. 5, at 62.
---------------------------------------------------------------------------
B. The Intention of the Framers
The debates on impeachment at the Constitutional Convention in
Philadelphia focus principally on its applicability to the President.
The framers sought to create a responsible though strong executive;
they hoped, in the words of Elbridge Gerry of Massachusetts, that ``the
maxim would never be adopted here that the chief Magistrate could do
[no] wrong.''(22) Impeachment was to be one of the central
elements of executive responsibility
[[Page 2253]]
in the framework of the new government as they conceived it.
---------------------------------------------------------------------------
22. The Records of the Federal Convention 66 (M. Farrand ed. 1911)
(brackets in original). Hereafter cited as Farrand.
---------------------------------------------------------------------------
The constitutional grounds for impeachment of the President
received little direct attention in the Convention; the phrase ``other
high Crimes and Misdemeanors'' was ultimately added to ``Treason'' and
``Bribery'' with virtually no debate. There is evidence, however, that
the framers were aware of the technical meaning the phrase had acquired
in English impeachments.
Ratification by nine states was required to convert the
Constitution from a proposed plan of government to the supreme law of
the land. The public debates in the state ratifying conventions offer
evidence of the contemporaneous understanding of the Constitution
equally as compelling as the secret deliberations of the delegates in
Philadelphia. That evidence, together with the evidence found in the
debates during the First Congress on the power of the President to
discharge an executive officer appointed with the advice and consent of
the Senate, shows that the framers intended impeachment to be a
constitutional safeguard of the public trust, the powers of government
conferred upon the President and other civil officers, and the division
of powers among the legislative, judicial and executive departments.
1. the purpose of the impeachment remedy
Among the weaknesses of the Articles of Confederation apparent to
the delegates to the Constitutional Convention was that they provided
for a purely legislative form of government whose ministers were
subservient to Congress. One of the first decisions of the delegates
was that their new plan should include a separate executive judiciary,
and legislature.(23) However, the framers sought to avoid
the creation of a too-powerful executive. The Revolution had been
fought against the tyranny of a king and his council, and the framers
sought to build in safeguards against executive abuse and usurpation of
power. They explicitly rejected a plural executive, despite arguments
that they were creating ``the foetus of monarchy,''(24)
because a single person would give the most responsibility to the
office.(25) For the same reason, they rejected proposals for
a council of advice or privy council to the executive (footnote
omitted).
---------------------------------------------------------------------------
23. 1 Farrand 322.
24. 1 Farrand 66.
25. This argument was made by James Wilson of Pennsylvania, who also
said that he preferred a single executive as ``giving most
energy dispatch and responsibility to the office.'' 1 Farrand
65.
---------------------------------------------------------------------------
The provision for a single executive was vigorously defended at the
time of the state ratifying conventions as a protection against
executive tyranny and wrongdoing. Alexander Hamilton made the most
carefully reasoned argument in Federalist No. 70, one of the series of
Federalist Papers prepared to advocate the ratification of the
Constitution by the State of New York. Hamilton criticized both a
plural executive and a council because they tend ``to conceal faults
and destroy responsibility.'' A plural executive, he wrote, deprives
the people of ``the two greatest securities they can have for the
faithful exercise of any delegated power''--``[r]esponsibility . . . to
censure and to punishment.'' When censure is divided and responsibility
uncertain, ``the restraints of public opinion . . . lose their
efficacy'' and ``the opportunity of discovering with facility and
clearness
[[Page 2254]]
the misconduct of the persons [the public] trust, in order either to
their removal from office, or to their actual punishment. in cases
which admit of it'' is lost.(26) A council, too, ``would
serve to destroy, or would greatly diminish, the intended and necessary
responsibility of the (Chief Magistrate himself.''(27) It
is, Hamilton concluded, ``far more safe [that] there should be a single
object for the jealousy and watchfulness of the people; . . . all
multiplication of the Executive is rather dangerous than friendly to
liberty.'' (28)
---------------------------------------------------------------------------
26. The Federalist No. 70, at 459-61 (Modern Library ea.) (A. Hamilton)
(hereinafter cited as Federalist). The ``multiplication of the
Executive,'' Hamilton wrote, ``adds to the difficulty of
detection'':
L The circumstances which may have led to any national
miscarriage of misfortune are sometimes so complicated that,
where there are a number of actors who may have had different
degrees and kinds of agency, though we may clearly see upon the
whole that there has been mismanagement, yet it may be
impracticable to pronounce to whose account the evil which may
have been incurred is truly chargeable.
If there should be ``collusion between the parties
concerned, how easy it is to clothe the circumstances with so
much ambiguity, as to render it uncertain what was the precise
conduct of any of those parties?'' Id. at 460.
27. Federalist No. 70 at 461. Hamilton stated:
L A council to a magistrate, who is himself responsible
for what he does, are generally nothing better than a clog upon
his good intentions, are often the instruments and accomplices
of his bad, and are almost always a cloak to his faults. Id. at
462-63.
28. Federalist No. 70 at 462.
---------------------------------------------------------------------------
James Iredell, who played a leading role in the North Carolina
ratifying convention and later became a justice of the Supreme Court,
said that under the proposed Constitution the President ``is of a very
different nature from a monarch. He is to be . . . personally
responsible for any abuse of the great trust reposed in him.''
(29) In the same convention, William R. Davie, who had been
a delegate in Philadelphia, explained that the ``predominant
principle'' on which the Convention had provided for a single executive
was ``the more obvious responsibility of one person.'' When there was
but one man, said Davie, ``the public were never at a loss'' to fix the
blame.(30)
---------------------------------------------------------------------------
29. 4 J. Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 74 (reprint of 2d ea.)
(hereinafter cited as Elliot.)
30. Elliot 104.
---------------------------------------------------------------------------
James Wilson, in the Pennsylvania convention, described the
security furnished by a single executive as one of its ``very important
advantages'':
The executive power is better to be trusted when it has no
screen. Sir, we have a responsibility in the person of our
President; he cannot act improperly, and hide either his negligence
or inattention; he cannot roll upon any other person the weight of
his criminality; no appointment can take place without his
nomination; and he is responsible for every nomination he makes. .
. . Add to all this, that officer is placed high, and is possessed
of power far from being contemptible, yet not a single privilege is
annexed to his character; far from being above the laws, he is
amenable to them in his private character as a citizen, and in his
public character by impeachment.(31)
---------------------------------------------------------------------------
31. 2 Elliot 480 (emphasis in original).
---------------------------------------------------------------------------
As Wilson's statement suggests, the impeachability of the President
was considered to be an important element of his responsibility.
Impeachment had been in
[[Page 2255]]
cluded in the proposals before the Constitutional Convention from its
beginning.(32) A specific provision, making the executive
removable from office on impeachment and conviction for ``mal-practice
or neglect of duty,'' was unanimously adopted even before it was
decided that the executive would be a single person.(33)
---------------------------------------------------------------------------
32. The Virginia Plan, fifteen resolutions proposed by Edmund Randolph
at the beginning of the Convention, served as the basis of its
early deliberations. The ninth resolution gave the national
judiciary jurisdiction over ``impeachments of any National
officers.'' 1 Farrand 22.
33. 1 Farrand 88. Just before the adoption of this provision, a
proposal to make the executive removable from office by the
legislature upon request of a majority of the state
legislatures had been overwhelmingly rejected. Id. 87. In the
course of debate on this proposal, it was suggested that the
legislature ``should have power to remove the Executive at
pleasure''--a suggestion that was promptly criticized as making
him ``the mere creature of the Legislature'' in violation of
``the fundamental principle of good Government,'' and was never
formally proposed to the Convention. Id. 85-86.
---------------------------------------------------------------------------
The only major debate on the desirability of impeachment occurred
when it was moved that the provision for impeachment be dropped, a
motion that was defeated by a vote of eight states to
two.(34)
---------------------------------------------------------------------------
34. 2 Farrand 64, 69.
---------------------------------------------------------------------------
One of the arguments made against the impeachability of the
executive was that he ``would periodically be tried for his behavior by
his electors'' and ``ought to be subject to no intermediate trial, by
impeachment.'' (35) Another was that the executive could
``do no criminal act without Coadjutors [assistants] who may be
punished.'' (36) Without his subordinates, it was asserted,
the executive ``can do nothing of consequence,'' and they would ``be
amenable by impeachment to the public Justice.'' (37)
---------------------------------------------------------------------------
35. 2 Farrand 67 (Rufus King). Similarly, Gouverneur Morris contended
that if an executive charged with a criminal act were
reelected, ``that will be sufficient proof of his innocence.''
Id. 64.
It was also argued in opposition to the impeachment
provision, that the executive should not be impeachable
``whilst in office''--an apparent allusion to the constitutions
of Virginia and Delaware, which then provided that the governor
(unlike other officers) could be impeached only after he left
office. Id. See 7 Thorpe, The Federal and State Constitutions
3818 (1909) and 1 Id. 566. In response to this position, it was
argued that corrupt elections would result, as an incumbent
sought to keep his office in order to maintain his immunity
from impeachment. He will ``spare no efforts or no means
whatever to get himself reelected,'' contended William R. Davie
of North Carolina. 2 Farrand 64. George Mason asserted that the
danger of corrupting electors ``furnished a peculiar reason in
favor of impeachments whilst in office'': ``Shall the man who
has practised corruption & by that means procured his
appointment in the first instance, be suffered to escape
punishment, by repeating his guilt?'' Id. 65.
36. 2 Farrand 64.
37. 2 Farrand 54.
---------------------------------------------------------------------------
This latter argument was made by Gouverneur Morris of Pennsylvania,
who abandoned it during the course of the debate, concluding that the
executive should be impeachable.(38) Before Morris changed
his position, however, George Mason had replied to his earlier
argument:
---------------------------------------------------------------------------
38. ``This Magistrate is not the King but the prime-Minister. The
people are the King.'' 2 Farrand 69.
---------------------------------------------------------------------------
Shall any man be above justice? Above all shall that man be
above it, who can commit the most extensive injustice? When great
crimes were committed he was for punishing the principal as well as
the Coadjutors.(39)
---------------------------------------------------------------------------
39. 2 Farrand 65.
[[Page 2256]]
---------------------------------------------------------------------------
James Madison of Virginia argued in favor of impeachment stating
that some provision was ``indispensable'' to defend the community
against ``the incapacity, negligence or perfidy of the chief
Magistrate.'' With a single executive, Madison argued, unlike a
legislature whose collective nature provided security, ``loss of
capacity or corruption was more within the compass of probable events,
and either of them might be fatal to the Republic.'' (40)
Benjamin Franklin supported impeachment as ``favorable to the
executive''; where it was not available and the chief magistrate had
``rendered himself obnoxious,'' recourse was had to assassination. The
Constitution should provide for the ``regular punishment of the
Executive when his misconduct should deserve it, and for his honorable
acquittal when he should be unjustly accused.(41) Edmund
Randolph also defended ``the propriety of impeachments'':
---------------------------------------------------------------------------
40. 2 Farrand 65-66.
41. 2 Farrand 65.
---------------------------------------------------------------------------
The Executive will have great opportunitys of abusing his
power; particularly in time of war when the military force, and in
some respects the public money will be in his hands. Should no
regular punishment be provided it will be irregularly inflicted by
tumults & insurrections.(42)
---------------------------------------------------------------------------
42. 2 Farrand 67.
The one argument made by the opponents of impeachment to which no
direct response was made during the debate was that the executive would
be too dependent on the legislature--that, as Charles Pinckney put it,
the legislature would hold impeachment ``as a rod over the Executive
and by that means effectually destroy his independence.''
(43) That issue, which involved the forum for trying
impeachments and the mode of electing the executive, troubled the
Convention until its closing days. Throughout its deliberations on ways
to avoid executive subservience to the legislature, however, the
Convention never reconsidered its early decision to make the executive
removable through the process of impeachment (footnote omitted).
---------------------------------------------------------------------------
43. 2 Farrand 66.
---------------------------------------------------------------------------
2. adoption of ``high crimes and misdemeanors''
Briefly, and late in the Convention, the framers addressed the
question how to describe the grounds for impeachment consistent with
its intended function. They did so only after the mode of the
President's election was settled in a way that did not make him (in the
words of James Wilson) ``the Minion of the Senate.'' (45)
---------------------------------------------------------------------------
45. 2 Farrand 523.
---------------------------------------------------------------------------
The draft of the Constitution then before the Convention provided
for his removal upon impeachment and conviction for ``treason or
bribery.'' George Mason objected that these grounds were too limited:
Why is the provision restrained to Treason & bribery only?
Treason as defined in the Constitution will not reach many great
and dangerous offenses. Hastings is not guilty of Treason. Attempts
to subvert the Constitution may not be Treason as above defined--As
bills of attainder which have saved the British Constitution are
forbidden, it is the more necessary to extend: the power of
impeachments.(46)
---------------------------------------------------------------------------
46. 2 Farrand 550.
Mason then moved to add the word ``maladministration'' to the other
two grounds.
[[Page 2257]]
Maladministration was a term in use in six of the thirteen state
constitutions as a ground for impeachment, including Mason's home
state of Virginia.(47)
---------------------------------------------------------------------------
47. The grounds for impeachment of the Governor of Virginia were ``mal-
administration, corruption, or other means, by which the safety
of the State may be endangered.'' 7 Thorpe, The Federal and
State Constitution 3818 (1909).
---------------------------------------------------------------------------
When James Madison objected that ``so vague a term will be
equivalent to a tenure during pleasure of the Senate,'' Mason withdrew
``maladministration'' and substituted ``high crimes and misdemeanors
agst. the State,'' which was adopted eight states to three, apparently
with no further debate.(48)
---------------------------------------------------------------------------
48. 2 Farrand 550. Mason's wording was unanimously changed later the
same day from ``agst. the State'' to ``against the United
States'' in order to avoid ambiguity. This phrase was later
dropped in the final draft of the Constitution prepared by the
Committee on Style and Revision, which was charged with
arranging and improving the language of the articles adopted by
the Convention without altering its substance.
---------------------------------------------------------------------------
That the framers were familiar with English parliamentary
impeachment proceedings is clear. The impeachment of Warren Hastings,
Governor-General of India, for high crimes and misdemeanors was voted
just a few weeks before the beginning of the Constitutional Convention
and George Mason referred to it in the debates.(49)
Hamilton, in the Federalist No. 65, referred to Great Britain as ``the
model from which [impeachment] has been borrowed.'' Furthermore, the
framers were well-educated men. Many were also lawyers. Of these, at
least nine had studied law in England.(50)
---------------------------------------------------------------------------
49. Id.
50. R. Berger, Impeachment: The Constitutional Problems 87, 89 and
accompanying notes (1973).
---------------------------------------------------------------------------
The Convention had earlier demonstrated its familiarity with the
term ``high misdemeanor.'' (51) A draft constitution had
used ``high misdemeanor'' in its provision for the extradition of
offenders from one state to another.(52) The Convention,
apparently unanimously struck ``high misdemeanor'' and inserted ``other
crime,'' ``in order to comprehend all proper cases: it being doubtful
whether `high misdemeanor' had not a technical meaning too
limited.(53)
---------------------------------------------------------------------------
51. As a technical term, a ``high'' crime signified a crime against the
system of government, not merely a serious crime. ``This
element of injury to the commonwealth--that is, to the state
itself and to its constitution--was historically the criterion
for distinguishing a `high' crime or misdemeanor from an
ordinary one. The distinction goes back to the ancient law of
treason, which differentiated `high' from `petit' treason.''
Bestor, Book Review, 49 Wash. L Rev. 255, 263-64 (1973). See 4
W. Blackstone, Commentaries 75.
52. The provision (article XV of Committee draft of the Committee on
Detail) originally read: ``Any person charged with treason,
felony or high misdemeanor in any State, who shall flee from
justice, and shall be found in any other State, shall, on
demand of the Executive power of the State from which he fled,
be delivered up and removed to the State having jurisdiction of
the offence.'' 2 Farrand 187-88.
This clause was virtually identical with the extradition
clause contained in article IV of the Articles of
Confederation, which referred to ``any Person guilty of, or
charged with treason, felony, or other high misdemeanor in any
state. . . .''
53. 2 Farrand 443.
---------------------------------------------------------------------------
The ``technical meaning'' referred to is the parliamentary use of
the term ``high misdemeanor.'' Blackstone's Commentaries on the Laws of
England--a work cited by delegates in other portions of the
Convention's deliberations and which Madison later described (in the
Virginia ratifying convention) as ``a book which is in every man's
hand'' (54)--included ``high misdemeanors'' as one term
[[Page 2258]]
for positive offenses ``against the king and government.'' The ``first
and principal'' high misdemeanor, according to Blackstone, was ``mal-
administration of such high officers, as are in public trust and
employment,'' usually punished by the method of parliamentary
impeachment.(55)
---------------------------------------------------------------------------
54. 3 Elliott 501.
55. 4 Blackstone's Commentaries 121 (emphasis omitted).
---------------------------------------------------------------------------
``High Crimes and Misdemeanors'' has traditionally been considered
a ``term of art,'' like such other constitutional phrases as ``levying
war'' and ``due process.'' The Supreme Court has held that such phrases
must be construed, not according to modern usage, but according to what
the framers meant when they adopted them.(56) Chief Justice
Marshall wrote of another such phrase:
---------------------------------------------------------------------------
56. See Murray v. Hoboken Land Co., 52 U.S. (18 How.) 272 (1856),
Davidson v. New Orleans, 96 U.S. 97 (1878); Smith v. Alabama,
124 U.S. 465 (1888).
---------------------------------------------------------------------------
It is a technical term. It is used in a very old statute of
that country whose language is our language, and whose laws form
the substratum of our laws. It is scarcely conceivable that the
term was not employed by the framers of our constitution in the
sense which had been affixed to it by those from whom we borrowed
it.(57)
---------------------------------------------------------------------------
57. United States v. Burr, 25 Fed. Cas. 1, 159 (No. 14, 693) (C.C.D.
Va. 1807).
---------------------------------------------------------------------------
3. grounds for impeachment
Mason's suggestion to add ``maladministration,'' Madison's
objection to it as ``vague,'' and Mason's substitution of ``high crimes
and misdemeanors agst the State'' are the only comments in the
Philadelphia convention specifically directed to the constitutional
language describing the grounds for impeachment of the President.
Mason's objection to limiting the grounds to treason and bribery was
that treason would ``not reach many great and dangerous offences''
including ``[a]ttempts to subvert the Constitution.'' (58)
His willingness to substitute ``high Crimes and Misdemeanors,''
especially given his apparent familiarity with the English use of the
term as evidenced by his reference to the Warren Hastings impeachment,
suggests that he believed ``high crimes and Misdemeanors'' would cover
the offenses about which he was concerned.
---------------------------------------------------------------------------
58. 2 Farrand 550.
---------------------------------------------------------------------------
Contemporaneous comments on the scope of impeachment are persuasive
as to the intention of the framers. In Federalist No. 65, Alexander
Hamilton described the subject of impeachment as:
Lthose 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.(59)
---------------------------------------------------------------------------
59. The Federalist No. 65 at 423-24 (Modern Library ed.) (A. Hamilton)
(emphasis in original).
Comments in the state ratifying conventions also suggest that those
who adopted the Constitution viewed impeachment as a remedy for
usurpation or abuse of power or serious breach of trust. Thus, Charles
Cotesworth Pinckney of South Carolina stated that the impeachment power
of the House reaches ``those who behave amiss, or betray their public
trust.'' (60) Edmund Randolph said in the Virginia
convention that the President may be impeached if he ``misbehaves.''
(61)
[[Page 2259]]
He later cited the example of the President's receipt of presents or
emoluments from a foreign power in violation of the constitutional
prohibition of Article I, section 9.(62) In the same
convention George Mason argued that the President might use his
pardoning power to ``pardon crimes which were advised by himself'' or,
before indictment or conviction, ``to stop inquiry and prevent
detection.'' James Madison responded:
---------------------------------------------------------------------------
60. 4 Elliot 281.
61. 3 Elliot 201.
62. 3 Elliot 486.
---------------------------------------------------------------------------
[I]f the President be connected, in any suspicious manner, with
any person, and there be grounds to believe he will shelter him,
the House of Representatives can impeach him; they can remove him
if found guilty. . . .(63)
---------------------------------------------------------------------------
63. 3 Elliot 497-98. Madison went on to say, contrary to his position
in the Philadelphia convention, that the President could be
suspended when suspected, and his powers would devolve on the
Vice President, who could likewise be suspended until impeached
and convicted, if he were also suspected. Id. 498.
In reply to the suggestion that the President could summon the
---------------------------------------------------------------------------
Senators of only a few states to ratify a treaty, Madison said,
Were the President to commit any thing so atrocious . . . he
would be impeached and convicted, as a majority of the states would
be affected by his misdemeanor.(64)
---------------------------------------------------------------------------
64. 3 Elliot 500. John Rutledge of South Carolina made the same point,
asking ``whether gentlemen seriously could suppose that a
President, who has a character at stake, would be such a fool
and knave as to join with ten others [two-thirds of a minimal
quorum of the Senate] to tear up liberty by the roots, when a
full Senate were competent to impeach him.'' 4 Elliot 268.
Edmund Randolph referred to the checks upon the President:
It has too often happened that powers delegated for the purpose
of promoting the happiness of a community have been perverted to
the advancement of the personal emoluments of the agents of the
people; but the powers of the President are too well guarded and
checked to warrant this illiberal aspersion.(65)
---------------------------------------------------------------------------
65. 3 Elliot 117.
Randolph also asserted, however, that impeachment would not reach
errors of judgment: ``No man ever thought of impeaching a man for an
opinion. It would be impossible to discover whether the error in
opinion resulted from a willful mistake of the heart, or an
involuntary fault of the head.'' (66)
---------------------------------------------------------------------------
66. 3 Elliot 401.
---------------------------------------------------------------------------
James Iredell made a similar distinction in the North Carolina
convention, and on the basis of this principle said, ``I suppose the
only instances, in which the President would be liable to impeachment,
would be where he has received a bribe, or had acted from some corrupt
motive or other.'' (67) But he went on to argue that the
President must certainly be punishable for giving false information to
the Senate. He is to regulate all intercourse with foreign powers, and
it is his duty to impart to the Senate every material intelligence he
receives. If it should appear that he has not given them full
information, but has concealed important intelligence which he ought to
have communicated, and by that means induced them to enter into
measures injurious to their country, and which they would not have
consented to had the true state of things been disclosed to them--in
this case, I ask whether, upon an impeachment for a misdemeanor upon
such
[[Page 2260]]
an account, the Senate would probably favor him.(68)
---------------------------------------------------------------------------
67. 4 Elliot 126.
68. 4 Elliot 127.
---------------------------------------------------------------------------
In short, the framers who discussed impeachment in the state
ratifying conventions, as well as other delegates who favored the
Constitution,(69) implied that it reached offenses against
the government, and especially abuses of constitutional duties. The
opponents did not argue that the grounds for impeachment had been
limited to criminal offenses.
---------------------------------------------------------------------------
69. For example, Wilson Nicholas in the Virginia convention asserted
that the President ``is personally amenable for his mal-
administration'' through impeachment, 3 Elliot 17; George
Nicholas in the same convention referred to the President's
impeachability if he ``deviates from his duty,'' id. 240.
Archibald MacLaine in the South Carolina convention also
referred to the President's impeachability for ``any
maladministration in his office,'' 4 Elliot 47; and Reverend
Samuel Stillman of Massachusetts referred to his impeachability
for ``malconduct,'' asking, ``With such a prospect, who will
dare to abuse the powers vested in him by the people?'' 2
Elliot 169.
---------------------------------------------------------------------------
An extensive discussion of the scope of the impeachment power
occurred in the House of Representatives in the First Session of the
First Congress. The House was debating the power of the President to
remove the head of an executive department appointed by him with the
advice and consent of the Senate, an issue on which it ultimately
adopted the position, urged primarily by James Madison, that the
Constitution vested the power exclusively in the President. The
discussion in the House lends support to the view that the framers
intended the impeachment power to reach failure of the President to
discharge the responsibilities of his office.(70)
---------------------------------------------------------------------------
70. Chief Justice Taft wrote with reference to the removal power debate
in the opinion for the Court in Myers v. United States, that
constitutional decisions of the First Congress ``have always
been regarded, as they should be regarded, as of the greatest
weight in the interpretation of that fundamental instrument.''
272 U.S. 52, 174-75 (1926).
---------------------------------------------------------------------------
Madison argued during the debate that the President would be
subject to impeachment for ``the wanton removal of meritorious
officers.'' (71) He also contended that the power of the
President unilaterally to remove subordinates was ``absolutely
necessary'' because ``it will make him in a peculiar manner,
responsible for [the] conduct'' of executive officers. It would,
Madison said,
---------------------------------------------------------------------------
71. 1 Annals of Cong. 498 (1789).
Lsubject him to impeachment himself, if he suffers them to
perpetrate with impunity high crimes or misdemeanors against the
United States, or neglects to superintend their conduct, so as to
check their excesses.(72)
---------------------------------------------------------------------------
72. Id. 372-73.
Elbridge Gerry of Massachusetts, who had also been a framer though
he had opposed the ratification of the Constitution, disagreed with
Madison's contentions about the impeachability of the President. He
could not be impeached for dismissing a good officer, Gerry said,
because he would be ``doing an act which the Legislature has submitted
to his discretion.(73) And he should not be held responsible
for the acts of subordinate officers, who were themselves subject to
impeachment and should bear their own responsibility.(74)
---------------------------------------------------------------------------
73. Id. 502.
74. Id. 535-36. Gerry also implied, perhaps rhetorically, that a
violation of the Constitution was grounds for impeachment. If,
he said, the Constitution failed to include provision for
removal of executive officers, an attempt by the legislature to
cure the omission would be an attempt to amend the
Constitution. But the Constitution provided procedures for its
amendment, and ``an attempt to amend it in any other way may be
a high crime or misdemeanor, or perhaps something worse.'' Id.
503.
---------------------------------------------------------------------------
[[Page 2261]]
Another framer, Abraham Baldwin of Georgia, who supported Madison's
position on the power to remove subordinates, spoke of the President's
impeachability for failure to perform the duties of the executive. If,
said Baldwin, the President ``in a fit of passion'' removed ``all the
good officers of the Government'' and the Senate were unable to choose
qualified successors, the consequence would be that the President
``would be obliged to do the duties himself; or, if he did not, we
would impeach him, and turn him out of office, as he had done others.''
(75)
---------------------------------------------------------------------------
75. Id. John Vining of Delaware commented: ``The President. What are
his duties? To see the laws faithfully executed; if he does not
do this effectually, he is responsible. To whom? To the people.
Have they the means of calling him to account, and punishing
him for neglect? They have secured it in the Constitution, by
impeachment, to be presented by their immediate
representatives; if they fail here, they have another check
when the time of election comes round.'' Id. 572.
---------------------------------------------------------------------------
Those who asserted that the President has exclusive removal power
suggested that it was necessary because impeachment, as Elias Boudinot
of New Jersey contended, is ``intended as a punishment for a crime, and
not intended as the ordinary means of re-arranging the Departments.''
(76) Boudinot suggested that disability resulting from
sickness or accident ``would not furnish any good ground for
impeachment; it could not be laid as treason or bribery, nor perhaps as
a high crime or misdemeanor.'' (77) Fisher Ames of
Massachusetts argued for the President's removal power because ``mere
intention [to do a mischief] would not be cause of impeachment'' and
``there may be numerous causes for removal which do not amount to a
crime.'' (78) Later in the same speech Ames suggested that
impeachment was available if an officer ``misbehaves'' (79)
and for ``mal-conduct.'' (80)
---------------------------------------------------------------------------
76. Id. 375.
77. Id.
78. Id. 474.
79. Id. 475.
80. Id. 477. The proponents of the President's removal power were
careful to preserve impeachment as a supplementary method of
removing executive officials. Madison said impeachment will
reach a subordinate ``whose bad actions may be connived at or
overlooked by the President.'' Id. 372. Abraham Baldwin said:
``The Constitution provides for--what? That no bad man
should come into office. . . . But suppose that one such could
be got in, he can be got out again in despite of the President.
We can impeach him, and drag him from his place . . . .'' Id.
558.
---------------------------------------------------------------------------
One further piece of contemporary evidence is provided by the
Lectures on Law delivered by James Wilson of Pennsylvania in 1790 and
1791. Wilson described impeachments in the United States as ``confined
to political characters, to political crimes and misdemeanors, and to
political punishment.'' (81) And, he said:
---------------------------------------------------------------------------
81. Wilson, Lectures on Law, in 1 The Works of James Wilson 426 (R.
McCloskey ed. 1967).
---------------------------------------------------------------------------
The doctrine of impeachments is of high import in the
constitutions of free states. On one hand, the most powerful
magistrates should be amenable to the law: on the other hand,
elevated characters should not be sacrificed merely on account of
their elevation. No one should be secure while he violates the
constitution and the laws: every one should be secure while he
observes them.(82)
---------------------------------------------------------------------------
82. Id. 425.
[[Page 2262]]
---------------------------------------------------------------------------
From the comments of the framers and their contemporaries, the
remarks of the delegates to the state ratifying conventions, and the
removal power debate in the First Congress, it is apparent that the
scope of impeachment was not viewed narrowly. It was intended to
provide a check on the President through impeachment, but not to make
him dependent on the unbridled will of the Congress.
Impeachment, as Justice Joseph Story wrote in his Commentaries on
the Constitution in 1833, applies to offenses of ``a political
character'':
Not but that crimes of a strictly legal character fall within
the scope of the power . . . but that it has a more enlarged
operation, and reaches, what are aptly termed political offenses,
growing out of personal misconduct or gross neglect, or usurpation,
or habitual disregard of the public interests, in the discharge of
the duties of political office. These are so various in their
character, and so indefinable in their actual involutions, that it
is almost impossible to provide systematically for them by positive
law. They must be examined upon very broad and comprehensive
principles of public policy and duty. They must be judged of by the
habits and rules and principles of diplomacy, or departmental
operations and arrangements, of parliamentary practice, of
executive customs and negotiations of foreign as well as domestic
political movements; and in short, by a great variety of
circumstances, as well those which aggravate as those which
extenuate or justify the offensive acts which do not properly
belong to the judicial character in the ordinary administration of
justice, and are far removed from the reach of municipal
jurisprudence.(83)
---------------------------------------------------------------------------
83. 1 J. Story Commentaries on the Constitution of the United States,
Sec. 764, at 559 (5th ed. 1905).
---------------------------------------------------------------------------
C. The American Impeachment Cases
Thirteen officers have been impeached by the House since 1787: one
President, one cabinet officer, one United States Senator, and ten
Federal judges.(84) In addition there have been numerous
resolutions and investigations in the House not resulting in
impeachment. However, the action of the House in declining to impeach
an officer is not particularly illuminating. The reasons for failing to
impeach are generally not stated, and may have rested upon a failure of
proof, legal insufficiency of the grounds, political judgment, the
press of legislative business, or the closeness of the expiration of
the session of Congress. On the other hand, when the House has voted to
impeach an officer, a majority of the Members necessarily have
concluded that the conduct alleged constituted grounds for
impeachment.(85)
---------------------------------------------------------------------------
84. Eleven of these officers were tried in the Senate. Articles of
impeachment were presented to the Senate against a twelfth
(Judge English), but he resigned shortly before the trial. The
thirteenth (Judge Delahay) resigned before articles could be
drawn.
85. Only four of the thirteen impeachments--all involving judges--have
resulted in conviction in the Senate and removal from office.
While conviction and removal show that the Senate agreed with
the House that the charges on which conviction occurred stated
legally sufficient grounds for impeachment, acquittals offer no
guidance on this question, as they may have resulted from a
failure of proof, other factors, or a determination by more
than one third of the Senators (as in the Blount and Belknap
impeachments) that trial or conviction was inappropriate for
want of jurisdiction.
---------------------------------------------------------------------------
Does Article III, Section 1 of the Constitution, which states that
judges ``shall
[[Page 2263]]
hold their Offices during good Behavior,'' limit the relevance of the
ten impeachments of judges with respect to presidential impeachment
standards as has been argued by some? It does not. The argument is that
``good behavior'' implies an additional ground for impeachment of
judges not applicable to other civil officers. However, the only
impeachment provision discussed in the Convention and included in the
Constitution is Article II, Section 4, which by its expressed terms,
applies to all civil officers, including judges, and defines
impeachment offenses as ``Treason, Bribery, and other high Crimes and
Misdemeanors.''
In any event, the interpretation of the ``good behavior'' clause
adopted by the House has not been made clear in any of the judicial
impeachment cases. Whichever view is taken, the judicial impeachments
have involved an assessment of the conduct of the officer in terms of
the constitutional duties of his office. In this respect, the
impeachments of judges are consistent with the three impeachments of
nonjudicial officers.
Each of the thirteen American impeachments involved charges of
misconduct incompatible with the official position of the officeholder.
This conduct falls into three broad categories: (1) exceeding the
constitutional bounds of the powers of the office in derogation of the
powers of another branch of government; (2) behaving in a manner
grossly incompatible with the proper function and purpose of the
office; and (3) employing the power of the office for an improper
purpose or for personal gain.(86)
---------------------------------------------------------------------------
86. A procedural note may be useful. The House votes both a resolution
of impeachment against an officer and articles of impeachment
containing the specific charges that will be brought to trial
in the Senate. Except for the impeachment of Judge Delahay, the
discussion of grounds here is based on the formal articles.
---------------------------------------------------------------------------
1. exceeding the powers of the office in derogation of those of another
branch of government
The first American impeachment, of Senator William Blount in 1797,
was based on allegations that Blount attempted to incite the Creek and
Cherokee Indians to attack the Spanish settlers of Florida and
Louisiana, in order to capture the territory for the British. Blount
was charged with engaging in a conspiracy to compromise the neutrality
of the United States, in disregard of the constitutional provisions for
conduct of foreign affairs. He was also charged, in effect, with
attempting to oust the President's lawful appointee as principal agent
for Indian affairs and replace him with a rival, thereby intruding upon
the President's supervision of the executive branch.(87)
---------------------------------------------------------------------------
87. After Blount had been impeached by the House, but before trial of
the impeachment, the Senate expelled him for ``having been
guilty of a high misdemeanor, entirely inconsistent with his
public trust and duty as a Senator.''
---------------------------------------------------------------------------
The impeachment of President Andrew Johnson in 1868 also rested on
allegations that he had exceeded the power of his office and had failed
to respect the prerogatives of Congress. The Johnson impeachment grew
out of a bitter partisan struggle over the implementation of
Reconstruction in the South following the Civil War, Johnson was
charged with violation of the Tenure of Office Act, which purported to
take away the President's authority to remove members of his own
cabinet and specifically provided that violation would be a ``high
misdemeanor,'' as well as a crime. Believing the Act unconstitutional,
Johnson re
[[Page 2264]]
moved Secretary of War Edwin M. Stanton and was impeached three days
later.
Nine articles of impeachment were originally voted against Johnson,
all dealing with his removal of Stanton and the appointment of a
successor without the advice and consent of the Senate. The first
article, for example, charged that President Johnson,
Lunmindful of the high duties of this office, of his oath of
office, and of the requirement of the Constitution that he should
take care that the laws be faithfully executed, did unlawfully, and
in violation of the Constitution and laws of the United States,
order in writing the removal of Edwin M. Stanton from the office of
Secretary for the Department of War.(88)
---------------------------------------------------------------------------
88. Article one further alleged that Johnson's removal of Stanton was
unlawful because the Senate had earlier rejected Johnson's
previous suspension of him.
Two more articles were adopted by the House the following day.
Article Ten charged that Johnson, ``unmindful of the high duties of his
office, and the dignity and proprieties thereof,'' had made
inflammatory speeches that attempted to ridicule and disgrace the
Congress.89 Article Eleven charged him with attempts to
prevent the execution of the Tenure of Office Act, an Army
appropriations act, and a Reconstruction act designed by Congress ``for
the more efficient government of the rebel States.'' On its face, this
article involved statutory violations, but it also reflected the
underlying challenge to all of Johnson's post-war policies.
---------------------------------------------------------------------------
89. Quoting from speeches which Johnson had made in Washington, D.C.,
Cleveland, Ohio and St. Louis, Missouri, article ten pronounced
these speeches ``censurable in any, [and] peculiarly indecent
and unbecoming in the Chief Magistrate of the United States.''
By means of these speeches, the article concluded, Johnson had
brought the high office of the presidency ``into contempt,
ridicule, and disgrace. to the great scandal of all good
citizens.''
---------------------------------------------------------------------------
The removal of Stanton was more a catalyst for the impeachment than
a fundamental cause.90 The issue between the President and
Congress was which of them should have the constitutional--and
ultimately even the military--power to make and enforce Reconstruction
policy in the South. The Johnson impeachment, like the British
impeachments of great ministers, involved issues of state going to the
heart of the constitutional division of executive and legislative
power.
---------------------------------------------------------------------------
90. The Judiciary Committee had reported a resolution of impeachment
three months earlier charging President Johnson in its report
with omissions of duty, usurpations of power and violations of
his oath of office, the laws and the Constitution in his
conflict of Reconstruction. The House voted down the
resolution.
---------------------------------------------------------------------------
2. behaving in a manner grossly incompatible with the proper function
and purpose of the office
Judge John Pickering was impeached in 1803, largely for
intoxication on the bench.(91) Three of the articles alleged
errors in a trial in violation of his trust and duty as a judge; the
fourth charged that Pickering, ``being a man of loose morals and
intemperate habits,'' had appeared on the bench during the trial in a
state of total intoxication and had used profane language. Seventy-
three years later another judge, Mark Delahay, was impeached for
intoxication both on and
[[Page 2265]]
off the bench but resigned before articles of impeachment were adopted.
---------------------------------------------------------------------------
91. The issue of Pickering's insanity was raised at trial in the
Senate, but was not discussed by the House when it voted to
impeach or to adopt articles of impeachment.
---------------------------------------------------------------------------
A similar concern with conduct incompatible with the proper
exercise of judicial office appears in the decision of the House to
impeach Associate Supreme Court Justice Samuel Chase in 1804. The House
alleged that Justice Chase had permitted his partisan views to
influence his conduct of two trials held while he was conducting
circuit court several years earlier. The first involved a Pennsylvania
farmer who had led a rebellion against a Federal tax collector in 1789
and was later charged with treason. The articles of impeachment alleged
that ``unmindful of the solemn duties of his office, and contrary to
the sacred obligation'' of his oath, Chase ``did conduct himself in a
manner highly arbitrary, oppressive, and unjust,'' citing procedural
rulings against the defense.
Similar language appeared in articles relating to the trial of a
Virginia printer indicted under the Sedition Act of 1798. Specific
examples of Chase's bias were alleged, and his conduct was
characterized as ``an indecent solicitude . . . for the conviction of
the accused, unbecoming even a public prosecutor but highly disgraceful
to the character of a judge, as it was subversive of justice.'' The
eighth article charged that Chase, ``disregarding the duties . . . of
his judicial character. . . . did . . . prevert his official right and
duty to address the grand jury'' by delivering ``an intemperate and
inflammatory political harangue.'' His conduct was alleged to be a
serious breach of his duty to judge impartially and to reflect on his
competence to continue to exercise the office.
Judge West H. Humphreys was impeached in 1862 on charges that he
joined the Confederacy without resigning his federal
judgeship.(92) Judicial prejudice against Union supporters
was also alleged.
---------------------------------------------------------------------------
92. Although some of the language in the articles suggested treason,
only high crimes and misdemeanors were alleged, and Humphrey's
offenses were characterized as a failure to discharge his
judicial duties.
---------------------------------------------------------------------------
Judicial favoritism and failure to give impartial consideration to
cases before him were also among the allegations in the impeachment of
Judge George W. English in 1926. The final article charged that his
favoritism had created distrust of the disinterestedness of his
official actions and destroyed public confidence in his
court.(93)
---------------------------------------------------------------------------
93. Some of the allegations against Judges Harold Louderback (1932) and
Halsted Ritter (1936) also involved judicial favoritism
affecting public confidence in their courts.
---------------------------------------------------------------------------
3. employing the power of the office for an improper purpose or
personal gain
Two types of official conduct for improper purposes have been
alleged in past impeachments. The first type involves vindictive use of
their office by federal judges; the second, the use of office for
personal gain.
Judge James H. Peck was impeached in 1826 for charging with
contempt a lawyer who had publicly criticized one of his decisions,
imprisoning him, and ordering his disbarment for 18 months. The House
debated whether this single instance of vindictive abuse of power was
sufficient to impeach, and decided that it was, alleging that the
conduct was unjust, arbitrary, and beyond the scope of Peck's duty.
Vindictive use of power also constituted an element of the charges
in two other impeachments. Judge George W.
[[Page 2266]]
English was charged in 1926, among other things, with threatening to
jail a local newspaper editor for printing a critical editorial and
with summoning local officials into court in a non-existent case to
harangue them. Some of the articles in the impeachment of Judge Charles
Swayne (1903) alleged that he maliciously and unlawfully imprisoned two
lawyers and a litigant for contempt.
Six impeachments have alleged the use of office for personal gain
or the appearance of financial impropriety while in office. Secretary
of War William W. Belknap was impeached in 1876 of high crimes and
misdemeanors for conduct that probably constituted bribery and
certainly involved the use of his office for highly improper purposes-
receiving substantial annual payments through an intermediary in return
for his appointing a particular post trader at a frontier military post
in Indian territory.
The impeachments of Judges Charles Swayne (1903), Robert W.
Archbald (1912), George W. English (1926), Harold Louderback (1932) and
Halsted L. Ritter (1936) each involved charges of the use of office for
direct or indirect personal monetary gain.(94) In the
Archbald and Ritter cases, a number of allegations of improper conduct
were combined in a single, final article, as well as being charged
separately.
---------------------------------------------------------------------------
94. Judge Swayne was charged with falsifying expense accounts and using
a railroad car in the possession of a receiver he had
appointed. Judge Archbald was charged with using his office to
secure business favors from litigants and potential litigants
before his court. Judges English, Louderback, and Ritter were
charged with misusing their power to appoint and set the fees
of bankruptcy receivers for personal profit.
---------------------------------------------------------------------------
In drawing up articles of impeachment, the House has placed little
emphasis on criminal conduct. Less than one-third of the eighty-three
articles the House has adopted have explicitly charged the violation of
a criminal statute or used the word ``criminal'' or ``crime'' to
describe the conduct alleged, and ten of the articles that do were
those involving the Tenure of Office Act in the impeachment of
President Andrew Johnson. The House has not always used the technical
language of the criminal law even when the conduct alleged fairly
clearly constituted a criminal offense, as in the Humphreys and Belknap
impeachments. Moreover, a number of articles, even though they may have
alleged that the conduct was unlawful, do not seem to state criminal
conduct-including Article Ten against President Andrew Johnson
(charging inflammatory speeches), and some of the charges against all
of the judges except Humphreys.
Much more common in the articles are allegations that the officer
has violated his duties or his oath or seriously undermined public
confidence in his ability to perform his official functions. Recitals
that a judge has brought his court or the judicial system into
disrepute are commonplace. In the impeachment of President Johnson,
nine of the articles allege that he acted ``unmindful of the high
duties of his office and of his oath of office,'' and several
specifically refer to his constitutional duty to take care that the
laws be faithfully executed.
The formal language of an article of impeachment, however, is less
significant than the nature of the allegations that it contains. All
have involved charges of conduct incompatible with continued
performance of the office; some have explicitly rested upon a ``course
of conduct'' or have combined disparate charges in a single, final
article. Some of the indi
[[Page 2267]]
vidual articles seem to have alleged conduct that, taken alone, would
not have been considered serious, such as two articles in the
impeachment of Justice Chase that merely alleged procedural errors at
trial. In the early impeachments, the articles were not prepared until
after impeachment had been voted by the House, and it seems probable
that the decision to impeach was made on the basis of all the
allegations viewed as a whole, rather than each separate charge. Unlike
the Senate, which votes separately on each article after trial, and
where conviction on but one article is required for removal from
office, the House appears to have considered the individual offenses
less significant than what they said together about the conduct of the
official in the performance of his duties.
Two tendencies should be avoided in interpreting the American
impeachments. The first is to dismiss them too readily because most
have involved judges. The second is to make too much of them. They do
not all fit neatly and logically into categories. That, however, is in
keeping with the nature of the remedy. It is intended to reach a broad
variety of conduct by officers that is both serious and incompatible
with the duties of the office.
Past impeachments are not precedents to be read with an eye for an
article of impeachment identical to allegations that may be currently
under consideration. The American impeachment cases demonstrate a
common theme useful in determining whether grounds for impeachment
exist-that the grounds are derived from understanding the nature,
functions and duties of the office.
III. The Criminality Issue
The phrase ``high Crimes and Misdemeanors'' may connote
``criminality'' to some. This likely is the predicate for some of the
contentions that only an indictable crime can constitute impeachable
conduct. Other advocates of an indictable-offense requirement would
establish a criminal standard of impeachable conduct because that
standard is definite, can be known in advance and reflects a
contemporary legal view of what conduct should be punished. A
requirement of criminality would require resort to familiar criminal
laws and concepts to serve as standards in the impeachment process.
Furthermore, this would pose problems concerning the applicability of
standards of proof and the like pertaining to the trial of
crimes.(1)
---------------------------------------------------------------------------
1. See A. Simpson, A Treatise on Federal Impeachments 28-29 (1916). It
has also been argued that because Treason and Bribery are
crimes, ``other high Crimes and Misdemeanors'' must refer to
crimes under the ejusdem generis rule of construction. But
ejusdem generis merely requires a unifying principle. The
question here is whether that principle is criminality or
rather conduct subversive of our constitutional institutions
and form of government.
---------------------------------------------------------------------------
The central issue raised by these concerns is whether requiring an
indictable offense as an essential element of impeachable conduct is
consistent with the purposes and intent of the framers in establishing
the impeachment power and in setting a constitutional standard for the
exercise of that power. This issue must be considered in light of the
historical evidence of the framers' intent.(2) It
[[Page 2268]]
is also useful to consider whether the purposes of impeachment and
criminal law are such that indictable offenses can, consistent with the
Constitution, be an essential element of grounds for impeachment. The
impeachment of a President must occur only for reasons at least as
pressing as those needs of government that give rise to the creation of
criminal offenses. But this does not mean that the various elements of
proof, defenses, and other substantive concepts surrounding an
indictable offense control the impeachment process. Nor does it mean
that state or federal criminal codes are necessarily the place to turn
to provide a standard under the United States Constitution. Impeachment
is a constitutional remedy. The framers intended that the impeachment
language they employed should reflect the grave misconduct that so
injures or abuses our constitutional institutions and form of
government as to justify impeachment.
---------------------------------------------------------------------------
2. The rule of construction against redundancy indicates an intent not
to require criminality. If criminality is required, the word
``Misdemeanors'' would add nothing to ``high Crimes.''
---------------------------------------------------------------------------
This view is supported by the historical evidence of the
constitutional meaning of the words ``high Crimes and Misdemeanors.''
That evidence is set out above.(3) It establishes that the
phrase ``high Clrimes and Misdemeanors''--which over a period of
centuries evolved into the English standard of impeachable conduct--has
a special historical meaning different from the ordinary meaning of the
terms ``crimes'' and ``misdemeanors.(4) High misdemeanors''
referred to a category of offenses that subverted the system of
government. Since the fourteenth century the phrase ``high Crimes and
Misdemeanors'' had been used in English impeachment cases to charge
officials with a wide range of criminal and non-criminal offenses
against the institutions and fundamental principles of English
government.(5)
---------------------------------------------------------------------------
3. See part II B. supra.
4. See part II B.2. supra.
5. See part II.A. supra.
---------------------------------------------------------------------------
There is evidence that the framers were aware of this special, non-
criminal meaning of the phrase ``high Crimes and Misdemeanors'' in the
English law of impeachment.(6) Not only did Hamilton
acknowledge Great Britain as ``the model from which [impeachment] has
been borrowed,'' but George Mason referred in the debates to the
impeachment of Warren Hastings, then pending before Parliament. Indeed,
Mason, who proposed the phase ``high Crimes and Misdemeanors,''
expressly stated his intent to encompass ``[a]ttempts to subvert the
Constitution.'' (7)
---------------------------------------------------------------------------
6. See part II.B.2. supra.
7. See Id.
---------------------------------------------------------------------------
The published records of the state ratifying conventions do not
reveal an intention to limit the grounds of impeachment to criminal
offenses (8) James Iredell said in the North Carolina
debates on ratification:
---------------------------------------------------------------------------
8. See part II.B.3. supra.
---------------------------------------------------------------------------
. . . the person convicted is further liable to a trial at
common law, and may receive such common-law punishment as belongs
to a description of such offences if it be punishable by that
law.(9)
---------------------------------------------------------------------------
9. 4 Elliot 114.
Likewise, George Nicholas of Virginia distinguished disqualification
to hold office from conviction for criminal conduct:
If [the President] deviates from his duty, he is responsible to
his constituents. . . . He will be absolutely disqualified to hold
any place of profit, honor, or trust, and liable to further
[[Page 2269]]
punishment if he has committed such high crimes as are punishable
at common law.(10)
---------------------------------------------------------------------------
10. 3 Elliot 240.
---------------------------------------------------------------------------
The post-convention statements and writings of Alexander Hamilton,
James Wilson, and James Madison--each a participant in the
Constitutional Convention--show that they regarded impeachment as an
appropriate device to deal with offenses against constitutional
government by those who hold civil office, and not a device limited to
criminal offenses.(11) Hamilton, in discussing the
advantages of a single rather than a plural executive, explained that a
single executive gave the people ``the opportunity of discovering with
facility and clearness the misconduct of the persons they trust, in
order either to their removal from office, or to their actual
punishment in cases which admit of it.(12) Hamilton further
wrote: ``Man, in public trust, will much oftener act in such a manner
as to render him unworthy of being any longer trusted, than in such a
manner as to make him obnoxious to legal punishment.(13)
---------------------------------------------------------------------------
11. See part II.B 1. supra; part II.B.3. supra.
12. Federalist No. 70, at 461.
13. Id. at 459.
---------------------------------------------------------------------------
The American experience with impeachment, which is summarized
above, reflects the principle that impeachable conduct need not be
criminal. Of the thirteen impeachments voted by the House since 1789,
at least ten involved one or more allegations that did not charge a
violation of criminal law.(l4)
---------------------------------------------------------------------------
14. See part II.C. supra.
---------------------------------------------------------------------------
Impeachment and the criminal law serve fundamentally different
purposes. Impeachment is the first step in a remedial process--removal
from office and possible disqualification from holding future office.
The purpose of impeachment is not personal punishment; (15)
its function is primarily to maintain constitutional government.
Furthermore, the Constitution itself provides that impeachment is no
substitute for the ordinary process of criminal law since it specifies
that impeachment does not immunize the officer from criminal liability
for his wrongdoing.(16)
---------------------------------------------------------------------------
15. It has been argued that ``[i]mpeachment is a special form of
punishment for crime,'' but that gross and willful neglect of
duty would be a violation of the oath of office and ``[s]uch
violation, by criminal acts of commission or omission, is the
only nonindictable offense for which the President, Vice
President, judges or other civil officers can be impeached.''
I. Brant, Impeachment, Trials and Errors 13, 20, 23 (1972).
While this approach might in particular instances lead to the
same results as the approach to impeachment as a constitutional
remedy for action incompatible with constitutional government
and the duties of constitutional office, it is, for the reasons
stated in this memorandum, the latter approach that best
reflects the intent of the framers and the constitutional
function of impeachment. At the time the Constitution was
adopted, ``crime'' and ``punishment for crime'' were terms used
far more broadly than today. The seventh edition of Samuel
Johnson's dictionary, published in 1785, defines ``crime'' as
``an act contrary to right, an offense; a great fault; an act
of wickedness.'' To the extent that the debates on the
Constitution and its ratification refer to impeachment as a
form of ``punishment'' it is punishment in the sense that today
would be thought a noncriminal sanction, such as removal of a
corporate officer for misconduct breaching his duties to the
corporation.
16. It is sometimes suggested that various provisions in the
Constitution exempting cases of impeachment from certain
provisions relating to the trial and punishment of crimes
indicate an intention to require an indictable offense as an
essential element of impeachable conduct. In addition to the
provision referred to in the text (Article I, Section 3), cases
of impeachment are exempted from the power of pardon and the
right to trial by jury in Article II, Section 2 and Article
III, Section 2 respectively. These provisions were placed in
the Constitution in recognition that impeachable conduct may
entail criminal conduct and to make it clear that even when
criminal conduct is involved, the trial of an impeachment was
not intended to be a criminal proceeding. The sources quoted at
notes 8-13, supra, show the understanding that impeachable
conduct may, but need not, involve criminal conduct.
---------------------------------------------------------------------------
The general applicability of the criminal law also makes it
inappropriate as the standard for a process applicable to a highly
specific situation such as removal of a President. The criminal law
sets a general standard of conduct that all must follow. It does not
address itself to the
[[Page 2270]]
abuses of presidential power. In an impeachment proceeding a President
is called to account for abusing powers that only a President
possesses.
Other characteristics of the criminal law make criminality
inappropriate as an essential element of impeachable conduct. While the
failure to act may be a crime, the traditional focus of criminal law is
prohibitory. Impeachable conduct, on the other hand, may include the
serious failure to discharge the affirmative duties imposed on the
President by the Constitution. Unlike a criminal case, the cause for
the removal of a President may be based on his entire course of conduct
in office. In particular situations, it may be a course of conduct more
than individual acts that has a tendency to subvert constitutional
government.
To confine impeachable conduct to indictable offenses may well be
to set a standard so restrictive as not to reach conduct that might
adversely affect the system of government. Some of the most grievous
offenses against our constitutional form of government may not entail
violations of the criminal law.
If criminality is to be the basic element of impeachment conduct,
what is the standard of criminal conduct to be? Is it to be criminality
as known to the common law, or as divined from the Federal Criminal
Code, or from an amalgam of State criminal statutes? If one is to turn
to State statutes, then which of those of the States is to obtain? If
the present Federal Criminal Code is to be the standard, then which of
its provisions are to apply? If there is to be new Federal legislation
to define the criminal standard, then presumably both the Senate and
the President will take part in fixing that standard. How is this to be
accomplished without encroachment upon the constitutional provision
that ``the sole power'' of impeachment is vested in the House of
Representatives?
A requirement of criminality would be incompatible with the intent
of the framers to provide a mechanism broad enough to maintain the
integrity of constitutional government. Impeachment is a constitutional
safety valve; to fulfill this function, it must be flexible enough to
cope with exigencies not now foreseeable. Congress has never undertaken
to define impeachable offenses in the criminal code. Even respecting
bribery, which is specifically identified in the Constitution as
grounds for impeachment, the federal statute establishing the criminal
offense for civil officers generally was enacted over seventy-five
years after the Constitutional Convention.(17)
---------------------------------------------------------------------------
17. It appears from the annotations to the Revised Statutes of 1873
that bribery was not made a federal crime until 1790 for
judges, 1853 for Members of Congress, and 1863 for other civil
officers. U.S. Rev. Stat., Title LXX, Ch. 6, Sec. Sec. 5499-
502. This consideration strongly suggests that conduct not
amounting to statutory bribery may nonetheless constitute the
constitutional ``high Crime and Misdemeanor'' of bribery.
---------------------------------------------------------------------------
In sum, to limit impeachable conduct to criminal offenses would be
incompatible with the evidence concerning the constitutional meaning of
the phrase ``high Crimes and Misdemeanors'' and would frustrate the
purpose that the framers intended for impeachment. State
[[Page 2271]]
and federal criminal laws are not written in order to preserve the
nation against serious abuse of the presidential office. But this is
the purpose of the constitutional provision for the impeachment of a
President and that purpose gives meaning to ``high Orimes and
Misdemeanors.''
IV. Conclusion
Impeachment is a constitutional remedy addressed to serious
offenses against the system of government. The purpose of impeachment
under the Constitution is indicated by the limited scope of the remedy
(removal from office and possible disqualification from future office)
and by the stated grounds for impeachment (treason, bribery and other
high crimes and misdemeanors). It is not controlling whether treason
and bribery are criminal. More important, they are constitutional
wrongs that subvert the structure of government, or undermine the
integrity of office and even the Constitution itself, and thus are
``high'' offenses in the sense that word was used in English
impeachments.
The framers of our Constitution consciously adopted a particular
phrase from the English practice to help define the constitutional
grounds for removal. The content of the phrase ``high Crimes and
Misdemeanors'' for the framers is to be related to what the framers
knew, on the whole, about the English practice--the broad sweep of
English constitutional history and the vital role impeachment had
played in the limitation of royal prerogative and the control of abuses
of ministerial and judicial power.
Impeachment was not a remote subject for the framers. Even as they
labored in Philadelphia, the impeachment trial of Warren Hastings,
Governor-General of India, was pending in London, a fact to which
George Mason made explicit reference in the Convention. Whatever may be
said of the merits of Hastings, conduct, the charges against him
exemplified the central aspect of impeachment--the parliamentary effort
to reach grave abuses of governmental power.
The framers understood quite clearly that the constitutional system
they were creating must include some ultimate check on the conduct of
the executive, particularly as they came to reject the suggested plural
executive. While insistent that balance between the executive and
legislative branches be maintained so that the executive would not
become the creature of the legislature, dismissable at its will, the
framers also recognized that some means would be needed to deal with
excesses by the executive. Impeachment was familiar to them. They
understood its essential constitutional functions and perceived its
adaptability to the American contest.
While it may be argued that some articles of impeachment have
charged conduct that constituted crime and thus that criminality is an
essential ingredient, or that some have charged conduct that was not
criminal and thus that criminality is not essential, the fact remains
that in the English practice and in several of the American
impeachments the criminality issue was not raised at all. The emphasis
has been on the significant effects of the conduct--undermining the
integrity of office, disregard of constitutional duties and oath of
office, arrogation of power, abuse of the governmental process, adverse
impact on the system of govern
[[Page 2272]]
ment. Clearly, these effects can be brought about in ways not
anticipated by the criminal law. Criminal standards and criminal courts
were established to control individual conduct. Impeachment was evolved
by Parliament to cope with both the inadequacy of criminal standards
and the impotence of courts to deal with the conduct of great public
figures. It would be anomalous if the framers, having barred criminal
sanctions from the impeachment remedy and limited it to removal and
possible disqualification from office, intended to restrict the grounds
for impeachment to conduct that was criminal.
The longing for precise criteria is understandable; advance,
precise definition of objective limits would seemingly serve both to
direct future conduct and to inhibit arbitrary reaction to past
conduct. In private affairs the objective is the control of personal
behavior, in part through the punishment of misbehavior. In general,
advance definition of standards respecting private conduct works
reasonably well. However, where the issue is presidential compliance
with the constitutional requirements and limitations on the presidency,
the crucial factor is not the intrinsic quality of behavior but the
significance of its effect upon our constitutional system or the
functioning of our government.
It is useful to note three major presidential duties of broad scope
that are explicitly recited in the Constitution: ``to take Care that
the Laws be faithfully executed,'' to ``faithfully execute the Office
of President of the United States'' and to ``preserve, protect, and
defend the Constitution of the United States'' to the best of his
ability. The first is directly imposed by the Constitution; the second
and third are included in the constitutionally prescribed oath that the
President is required to take before he enters upon the execution of
his office and are, therefore, also expressly imposed by the
Constitution.
The duty to take care is affirmative. So is the duty faithfully to
execute the office. A President must carry out the obligations of his
office diligently and in good faith. The elective character and
political role of a President make it difficult to define faithful
exercise of his powers in the abstract. A President must make policy
and exercise discretion. This discretion necessarily is broad,
especially in emergency situations, but the constitutional duties of a
President impose limitations on its exercise.
The ``take care'' duty emphasizes the responsibility of a President
for the overall conduct of the executive branch, which the Constitution
vests in him alone. He must take care that the executive is so
organized and operated that this duty is performed.
The duty of a President to ``preserve, protect, and defend the
Constitution'' to the best of his ability includes the duty not to
abuse his powers or transgress their limits--not to violate the rights
of citizens, such as those guaranteed by the Bill of Rights, and not to
act in derogration of powers vested elsewhere by the Constitution.
Not all presidential misconduct is sufficient to constitute grounds
for impeachment. There is a further requirement--substantiality. In
deciding whether this further requirement has been met, the facts must
be considered as a whole in the context of the office, not in terms of
separate or isolated events. Because impeachment of a President is a
grave step for the nation, it is to be predicated only
[[Page 2273]]
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.