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Negative Misprisions Are Not Grounds for Impeachment
Andrew Hyman

I am no expert on impeachment, so this week I turned to my favorite online copy of the U.S. Constitution to find out more.  Plus I read some recent commentary by reliable constitutional scholars.  Michael Ramsey wrote on this blog that, whatever the exact meaning of high crimes and misdemeanors may be, the U.S. Supreme Court can prevent impeachments for conduct that falls outside those terms.  Mike makes some solid arguments.  But what falls outside the meaning of high crimes and misdemeanors?
Well, Blackstone wrote that a “high misdemeanor” is synonymous with a “positive misprision,” which he said included “mal-administration of such high officers as are in public trust and employment.”  But care must be taken here, because Blackstone used the term “mal-administration” in a narrow way; he gave examples of things that are not mal-administration, including "negative misprision" which is a failure to disclose something that ought to be disclosed.   It would therefore seem that disobeying subpoenas to turn over information or provide witnesses to Congress cannot be proper grounds for impeachment.
UPDATE BY ANDREW ON OCTOBER 13, 2019: A 1998 CRS report quotes Blackstone and many other impeachment authorities at length.  Among other things, Blackstone wrote: “A crime, or misdemesnor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it" (the word "misdemesnor" is an antiquated spelling of "misdemeanor").  Thus, when Blackstone later wrote about “high misdemesnors; of which the first and principal is the mal-administration of such high offices, as are in public trust and employment,” he must have meant by the term “mal-administration” only instances where a public law was violated.  That is a relatively narrow use of the term "mal-administration."  During the constitutional convention, a more vague use of the term "maladministration" was rejected, as Judge Rao pointed out in a dissent on October 11, 2019.  I already mentioned in this blog post that negative misprisions were not considered by Blackstone to be high misdemeanors, but I should have said that he left open the possibility that they could sometimes be high crimes.