The Causes for Which a President Can Be Impeached
“What, then, is the meaning of ‘high crimes and misdemeanors,’ for which a President may be removed? Neither the Constitution nor the statutes have determined.”
The Constitution provides, in express terms, that the President, as well as the Vice-President and all civil officers, may be impeached for “treason, bribery, or other high crimes and misdemeanors.” It was framed by men who had learned to their sorrow the falsity of the English maxim, that “the king can do no wrong,” and established by the people, who meant to hold all their public servants, the highest and the lowest, to the strictest accountability. All were jealous of any “squinting towards monarchy,” and determined to allow to the chief magistrate no sort of regal immunity, but to secure his faithfulness and their own rights by holding him personally answerable for his misconduct, and to protect the government by making adequate provision for his removal. Moreover, they did not mean that the door should not be locked till after the horse had been stolen.
By the Constitution, the House of Representatives has “the sole power of impeachment,” and the Senate “the sole power to try all impeachments.” When the President of the United States is tried on impeachment, the Chief Justice is to preside. The concurrence of two thirds of the members present is necessary to convict. “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.” But judgment cannot “extend further than to removal and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” Thus it is obvious that the founders of the government meant to secure it effectually against all official corruption and wrong, by providing for process to be initiated at the will of the popular branch, and furnishing an easy, safe, and sure method for the removal of all unworthy and unfaithful servants.
By defining treason exactly, by prescribing the precise proofs, and limiting the punishment of it, they guarded the people against one form of tyrannical abuse of power; and they intended to secure them effectually against all injury from abuses of another sort, by holding the President responsible for his “misdemeanors,” — using the broadest term. They guarded carefully against all danger of popular excesses, and any injustice to the accused, by withholding the general power of punishment. This term “misdemeanor,” therefore, should be liberally construed, for the same reason that treason should not be extended by construction. It is not better for the state that traitors should remain in office than that innocent men should be expelled. Besides, it is true in relation to this procedure, that the higher the post the higher the crime.
What, then, is the meaning of “high crimes and misdemeanors,” for which a President may be removed? Neither the Constitution nor the statutes have determined. It follows, therefore, that the House must judge for what offences it will present articles, and the Senate decide for what it will convict. And from the very nature of the wrongs for which impeachment is the sole adequate remedy, as well as from the fact that the office of President and all its duties and relations are new, it is essential that they should be undefined; otherwise there could be no security for the state.
But it does not by any means follow that therefore either the House or the Senate can act arbitrarily, or that there are not rules for the guidance of their conduct. The terms “high crimes and misdemeanors,” like many other terms and phrases used in the Constitution, as, for instance, “pardon,” “habeas corpus,” “ex post facto,” and the term “impeachment” itself, had a settled meaning at the time of the establishment of the Constitution. There was no need of definition, for it was left to the House as exhibitors, and the Chief Justice and the Senate as judges of the articles, to apply well-understood terms, mutatis mutandis, to new circumstances, as the exigencies of state, and the ends for which the Constitution was established, should require. The subject-matter was new; the President was a new officer of state; his duties, his relations to the various branches of government and to the people, his powers, his oath, functions, duties, responsibilities, were all new. In some respects, old customs and laws were a guide. In others, there was neither precedent nor analogy. But the common-law principle was to be applied to the new matters according to their exigency, as the common law of contracts and of carriers is applied to carriage by steamboats and railroads, to corporations and expresses, which have come into existence centuries since the law was established.
Impeachment, “the presentment of the most solemn grand inquest of the whole kingdom,” had been in use from the earliest days of the English Constitution and government.
The terms “high crimes and misdemeanors,” in their natural sense, embrace a very large field of actions. They are broad enough to cover all criminal misconduct of the President, — all acts of commission or omission forbidden by the Constitution and the laws. To the word “misdemeanor,” indeed, is naturally attached a yet broader signification, which would embrace personal character and behavior as well as the proprieties of official conduct. Nor was, nor is, there any just reason why it should be restricted in this direction; for, in establishing a permanent national government, to insure purity and dignity, to secure the confidence of its own people and command the respect of foreign powers, it is not unfit that civil officers, and most especially the highest of all, the head of the people, should be answerable for personal demeanor.
The term “misdemeanor” was likewise used to designate all legal offences lower than felonies, — all the minor transgressions, all public wrongs, not felonious in character. The common law punished whatever acts were productive of disturbance to the public peace, or tended to incite to the commission of crime, or to injure the health or morals of the people, — such as profanity, drunkenness, challenging to fight, soliciting to the commission of crime, carrying infection through the streets, — an endless variety of offences.
These terms, when used to describe political offences, have a signification coextensive with, or rather analogous to, but yet more extensive than their legal acceptation; for, as John Quincy Adams said, “the Legislature was vested with power of impeaching and removing for trivial transgressions beneath the cognizance of the law.” The sense in which they are used in the Constitution is rendered clearer and more precise by the long line of precedents of decided cases to be found in the State Trials and historical collections. Selden, in his “Judicature of Parliament,” and Coke, in his “Institutes,” refer to many of these, and Comyns names more than fifty impeachable offences. Amongst these are, subverting the fundamental laws and introducing arbitrary power; for an ambassador to give false information to the king; to make a treaty between two foreign powers without the knowledge of the king; to deliver up towns without consent of his colleagues; to incite the king to act against the advice of Parliament; to give the king evil counsel; for the Speaker of the House of Commons to refuse to proceed; for the Lord Chancellor to threaten the other judges to make them subscribe to his opinions.
Wooddeson, who began to lecture in 1777, and whose works express the sense in which the terms were understood by the contemporaries of the founders of the Constitution, says that “such kinds of misdeeds as peculiarly injure the commonwealth by the abuses of high offices of trust are the most proper, and have been the most usual grounds for this kind of prosecution”; — “as, for example, for the Lord Chancellor to act grossly contrary to the duty of his office; for the judges to mislead the sovereign by unconstitutional opinions; for any other magistrates to attempt to subvert the fundamental laws, or introduce arbitrary power, as for a Privy-Councillor to propose or support pernicious or dishonorable practices.”
These text-writers seem to have been referred to and followed by our later ones.
But to the offences enumerated by these authorities we must add others taken from cases in the State Trials. The High Court of Impeachment had included amongst political high crimes and misdemeanors the following, viz.: for a Secretary of State to abuse the pardoning power; for the Lord Chancellor and Chief Justice of Ireland to attempt to subvert the laws and government and the rights of Parliament; for the Attorney-General to prefer charges of treason falsely; for a Privy-Councillor to try to alienate the affections of the people; for the Lord Chancellor to assume to dispense with the statutes, and to control them. It had been held to be a misdemeanor to incite the king to ill-manners; to put away from the king good officers, and put about him wicked ones of their own party; to maintain robbers and murderers, causing the king to pardon them; to get ascendency over the king, and turn his heart from the peers of the realm; to prevent the great men of the realm from advising with the king, save in presence of the accused; and to cause the king to appoint sheriffs named by them, so as to get such men returned to Parliament as they desired, to the undoing of the loyal lords and the good laws and customs; to taunt the king’s councillors, and call them unworthy to sit in council when they advised the king to reform the government; or to write letters declaring them traitors.
The nature of the charges may be illustrated by one of the allegations against an evil judge. We give Article VIII.: “The said William Scroggs, being advanced to be Lord Chief Justice of the Court of King’s Bench, ought, by a sober, grave, and virtuous conversation, to have given a good example to the king’s liege people, and to demean himself answerable to the dignity of so eminent a station; yet on the contrary thereof, he doth, by his frequent and notorious excesses and debaucheries, and his profane and atheistical discourses, affront Almighty God, dishonor his Majesty, give countenance and encouragement to all manner of vice and wickedness, and bring the highest scandal on the public justice of the kingdom.”
Such was the nature of political offences, as known to the framers of the Constitution. It answered to the natural sense of the terms of the Constitution, as understood by the people in establishing it. And it is plain that the founders of the government meant to establish, what in such a government is vital to the safety and stability of the state, a jurisdiction coextensive with the influence of the officers subjected to it, and with their official duties, their functions, and their public relations.
The Federalist, in treating of this jurisdiction of the Senate, regarded it as extending over “those offences which proceed from the misconduct of public men” and termed “political, as they relate chiefly to injuries done immediately to society itself.”
The people of America meant to rest their government on executive responsibility, and to apply to the President the principles which had been established as applicable only to the ministers, servants, and advisers of the king. But to show what they regarded as the range of royal duty, they had put on record a list of charges against their own king himself, commencing thus: “He has refused his assent to laws the most wholesome and necessary for the public good,” — on which they justified revolution. The Declaration of Independence will aid in determining what they would regard as offences of the Executive.
No President has been impeached. But the charges exhibited against several other public officers throw light upon this subject. In 1797, articles of impeachment were found against William Blount, a Senator. The misdemeanors were not charged as being done in the execution of any office under the United States. He was not charged with misconduct in office, but with an attempt to influence a United States Indian interpreter, and to alienate the affection and confidence of the Indians. After the impeachment was known, but before it was presented to the Senate, the Senate expelled him, resolving “that he was guilty of a high misdemeanor entirely inconsistent with his public trust and duty as a Senator.”
In 1804, John Pickering, Judge of the District Court of New Hampshire, was removed for, — 1. Misbehavior as a judge; and amongst other causes, 4. For appearing drunk, and frequently, in a profane and indecent manner, invoking the name of the Supreme Being.
In 1804, Judge Chase was impeached and tried for arbitrary, oppressive, and unjust conduct, in delivering his opinion on the law beforehand, and debarring counsel from arguing the law; and for unjust, impartial, and intemperate conduct in obliging counsel to reduce their statements to writing, the use of rude and contemptuous language, and intemperate and vexatious conduct.
These are cases of contemporaneous exposition. There have been other cases in the various States, and some more recent ones in Congress; but they are not necessary to illustrate the subject. Just on the eve of the war, the Senate expelled Bright for writing a letter to Jefferson Davis, introducing a man with an improvement in fire-arms as a reliable person.
As Judge Story remarked, “Political offences are of so various and complex a character, so utterly incapable of being defined or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.” Referring to the text-writers we have named, and the causes of impeachment enumerated by them, he seems to justify the extremest cases by saying that, though they now seem harsh and severe, “perhaps they were rendered necessary by existing corruptions and the importance of suppressing a spirit of favoritism and court intrigue.” “But others again,” he adds, “were founded in the most salutary public justice, such as impeachments for malversations and neglects in office, for official oppression, extortion, and deceit, and especially for putting good magistrates out of office and advancing bad.” He puts a case, on which he expresses no opinion, in such form that there can scarcely be any doubt of his opinion, or any possibility of two opinions concerning it. “Suppose a judge should countenance or aid insurgents in a meditated conspiracy or insurrection against the government. This is not a judicial act; and yet it ought certainly to be impeachable.”
Thus it appears that the political offences of the Constitution for which civil officers are removable embrace, besides the high crimes and misdemeanors of the criminal law, a range as wide as the circle of official duties and the influences of official position; they include, not only breaches of duty, but also misconduct during the tenure of office; they extend to acts for which there is no criminal responsibility whatsoever; they reach even personal conduct; they include, not merely acts of usurpation, but all such acts as tend to subvert the just influence of official position, to degrade the office, to contaminate society, to impair the government, to destroy the proper relations of civil officers to the people and to the government, and to the other branches of the government.
In fine, it may almost be said, that for a President to have done anything which he ought not to have done, or to have left undone anything which he ought to have done, is just cause for his impeachment, if the House by a majority vote feels called on to make it the ground of charges, and the Senate by a two-thirds vote determines it to be sufficient; for the safety of the state is the supreme law, and these bodies are the final judges thereof.