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06/26/2018

Robert Natelson on the Meaning of "High ... Misdemeanors"
Michael Ramsey

In the Federalist Society Review, Robert G. Natelson (Independence Institute): Impeachment: The Constitution’s Fiduciary Meaning of “High . . . Misdemeanors”. Here is the introduction (footnotes omitted): 

The Constitution provides expressly for three methods by which federal government officials can be removed from office: (1) elected officials may be defeated for re-election, (2) members of Congress may be expelled, and (3) judicial and executive officers may be removed on impeachment by the House of Representatives followed by trial and conviction by the Senate. The Constitution contains no standards governing the first two methods of removal. For the third method, however, the official must be guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.” 

Modern commentators disagree over what the Founders meant by the term “high . . . Misdemeanors.” Some have argued the term comprehends only violations of the criminal law. Others, most famously then-Representative Gerald Ford, have claimed it encompasses whatever Congress decides it encompasses. Neither of these two views comports with the Constitution’s text. If the Founders understood “high . . . Misdemeanors” to be limited to criminal violations, they could have omitted the words entirely and ended the sentence with “Crimes.” If they understood “high . . . Misdemeanors” to grant unlimited discretion, they could have omitted the phrase “Treason, Bribery, or other high Crimes.”

Other commentators contend the actual standard lies between these two extremes. The text implies this is correct, but commentators have not had great success determining what that standard is. Their formulations have tended to center on vague terms without discernible legal content, such as “unacceptable risk” and “egregious abuse.”

Why have commentators not deduced a clearer standard? Perhaps politics has gotten in the way. Most modern commentary dates from the time of the Nixon and Clinton impeachments and seems influenced by whether or not the author wanted the incumbent president impeached and convicted. A more fundamental problem may be the methodology employed. Writers have attempted to deduce standards from charges in English and American impeachment cases decided from the fourteenth through the twentieth centuries; Professor Raoul Berger’s authoritative 1973 book on the impeachment process is the premier example of this methodology. However, most of the cases examined are not particularly probative of the founders’ understanding. Those decided after the Constitution was ratified, of course, had no effect on their understanding. The value of early cases—those arising before the eighteenth century—is compromised by the fact that the goals and values driving the impeachment process changed over time. To recapture the founding generation’s understanding of “high . . . Misdemeanors,” we do best to limit ourselves to the events and literature of the eighteenth century. We should take heed of earlier proceedings only to the extent authors influential during the founding generation relied on them.

I must qualify in one respect my statement about the unsatisfying nature of prior explanations of “high . . . Misdemeanors.” In a 1975 study, two practitioners, E. Mabry Rogers and Stephen B. Young (later Dean Young, of the Hamline University Law School), concluded that the term meant “breach of fiduciary duty.” I believe that conclusion to be precisely correct. This essay marshals additional sources to demonstrate why it is correct.