How the Constitution Defines Impeachable, Word by Word

How the Constitution Defines Impeachable, Word by Word

“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,” according to the U.S. Constitution. Here’s how experts interpret those final eight words:

Treason, Bribery, or other high Crimes and Misdemeanors”

Treason is defined in the Constitution.

“Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort,” it says in Article III.

“Treason, Bribery, or other high Crimes and Misdemeanors”

Bribery is not defined in the Constitution.

United States criminal statutes say that bribery occurs when a public official solicits or accepts something of “value” in exchange for an “official act.” But these statutes were written long after the word was added to the Constitution.

Pamela S. Karlan, a Stanford professor asked by Democrats to testify before the House Judiciary Committee on Wednesday, said the framers of the U.S. Constitution would have understood the term broadly.

“When you took private benefits, or when you asked for private benefits in return for an official act, or somebody gave them to you to influence an official act, that was bribery,” she said.

Ms. Karlan, along with two other scholars called by Democrats who testified Wednesday, said that if President Trump did what Democrats have accused him of doing — soliciting an announcement of investigations for political reasons — that would qualify as bribery.

But a witness invited by Republicans, the George Washington University professor Jonathan Turley, disagreed. He said a White House meeting did not amount to an “official act,” and questioned whether the delayed release of aid would qualify. In any case, he said, proof of corrupt intent was lacking.

“Treason, Bribery, or other high Crimes and Misdemeanors”

Experts have interpreted “other” to mean an offense of equal seriousness to, and of a similar character as, treason or bribery.

“Treason, Bribery, or other high Crimes and Misdemeanors”

Scholars agree that “high” refers to something done by a person in public office.

In 1788, as supporters of the Constitution were urging states to ratify the document, Alexander Hamilton described impeachable crimes in one of the Federalist Papers as “those offenses 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.”

“Treason, Bribery, or other high Crimes and Misdemeanors”

There is broad agreement that an offense does not need to violate a criminal statute to be impeachable.

In his handbook on impeachment, the late constitutional scholar Charles L. Black Jr. wrote that “the limitation of impeachable offenses to those offenses made generally criminal by statute is unwarranted — even absurd.”

“But it remains true that the House of Representatives and the Senate must feel more comfortable when dealing with conduct clearly criminal in the ordinary sense,” he wrote. “For as one gets further from that area it becomes progressively more difficult to be certain, as to any particular offense, that it is impeachable.”

“Treason, Bribery, or other high Crimes and Misdemeanors

This isn’t referring to a minor crime, but to offenses.

“High misdemeanors” historically referred to “offenses that subverted the system of government,” according to a 1974 memo produced by the House Judiciary Committee as it weighed impeaching President Richard Nixon.

“Treason, Bribery, or other high Crimes and Misdemeanors

The framers wanted to leave Congress options — but not too many options.

The framers debated how to describe impeachable offenses other than treason and bribery. The word “maladministration” was suggested, but James Madison argued that it would give Congress too much leeway.

“Whatever may be the grounds for impeachment and removal, dislike of a president’s policy is definitely not one of them,” wrote Mr. Black.

The framers opted for “high crimes and misdemeanors,” a phrase that had been used for hundreds of years during impeachment proceedings in the English Parliament.

According to the 1974 memo, the offenses could take several forms, including “misapplication of funds, abuse of official power, neglect of duty, encroachment on Parliament’s prerogatives, corruption, and betrayal of trust.”

On Saturday, Democratic staff of the House Judiciary Committee released a report on the constitutional grounds for impeachment that they said was meant to update earlier memos with today’s “best available learning.”

The report echoes allegations that Democrats have made about Mr. Trump’s actions.

“A president who perverts his role as chief diplomat to serve private rather than public ends has unquestionably engaged in ‘high crimes and misdemeanors’— especially if he invited, rather than opposed, foreign interference in our politics,” the report says.

Treason, Bribery, or other high Crimes and Misdemeanors

Ultimately, it’s up to Congress.

“The longing for precise criteria is understandable,” the 1974 memo says. “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.”

In 1868, the House adopted 11 articles of impeachment against President Andrew Johnson. Some of the articles were constitutionally dubious, according to scholars, including the 10th. It alleged that he:

“… did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States.”

“A ridiculous charge,” wrote Mr. Black.

Democratic leaders resisted calls for Mr. Trump’s impeachment until they had come to believe that they had a strong case. The articles of impeachment they are drafting could include several charges discussed in Wednesday’s hearings.

“The record compiled thus far shows that the president has committed several impeachable offenses, including bribery, abuse of power in soliciting a personal favor from a foreign leader to benefit his political campaign, obstructing Congress, and obstructing justice,” testified Michael Gerhardt, a University of North Carolina professor invited by Democrats.

Mr. Turley, the Republican-selected witness, testified that “a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven.” But he said that the evidence in Mr. Trump’s case fell short, and that “there remain core witnesses and documents that have not been sought through the courts.”

“If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president,” Mr. Turley warned.


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