[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)
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 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).
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    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)
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 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).
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        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.''
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    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)
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 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.
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    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)
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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.
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    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)
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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.
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    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)
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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).
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    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.
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    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)
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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.
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    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.
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20. See, e.g., Berger, supra n. 5, at 70-71.
21. Berger, supra n. 5, at 62.
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                    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.
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22. The Records of the Federal Convention 66 (M. Farrand ed. 1911) 
        (brackets in original). Hereafter cited as Farrand.
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    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).
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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.
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    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)
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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.
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    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)
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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.
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    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)
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31. 2 Elliot 480 (emphasis in original).
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    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)
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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.
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    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)
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34. 2 Farrand 64, 69.
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    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)
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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.
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    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:
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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.

                                 
