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03/12/2020

Robert Natelson on Impeachment (Again, but Different this Time)
Michael Ramsey

In the Federalist Society Review, Robert Natelson: New Evidence on the Constitution’s Impeachment Standard: “high . . . Misdemeanors” Means Serious Crimes.  From the introduction (footnotes omitted):

The Constitution permits impeachment and removal of federal officers for “Treason, Bribery, or other high Crimes and Misdemeanors.” Records from the Founding tell us that the adjective “high” modifies both “Crimes” and “Misdemeanors.” Thus, the Impeachment Clause may be read as permitting removal if an official has committed (1) treason, (2) bribery, (3) another high crime, or (4) a high misdemeanor.

But what is a high misdemeanor? As I pointed out in a prior article in Federalist Society Review, commentators and scholars have agitated this question for many years. Exemplifying the disagreement was the testimony of the four constitutional scholars called to testify before the U.S. House Judiciary Committee during the impeachment proceedings against President Donald Trump.

My prior article suggested yet another standard: that a high misdemeanor is what modern lawyers call breach of fiduciary duty and Founding-era lawyers called breach of trust. ...

...

... The evidence consulted thus far when viewed in isolation is simply not determinative. This lack of determinativeness has led some scholars to conclude that ascertaining the precise meaning of high misdemeanors is not practical, that the process is inherently political, and that the grounds for impeachment should be worked out on case by case basis.

... [M]odern commentators read sources such as Madison’s convention notes in isolation from the wider legal background, without underlying legal terminology or concepts to clarify them. Yet they must be read against the contemporaneous legal background to be fully understood.

The Constitution is a legal document, the “supreme Law of the Land.” The majority of its framers were lawyers, as were most of those who explained the document in the ratifying conventions and to the American public—a public legally sophisticated by today’s standards. The document itself is laden with legal terms of art. These include not only obvious legal phrases like habeas corpus and trial by jury, but phrases that, while common in the eighteenth century, are not widely used in modern law. Examples are “Privileges and Immunities,” “necessary and proper,” and “regulate . . . Commerce”—phrases with specific legal meanings during the Founding era. That one must read the Constitution in the context of eighteenth century jurisprudence should be obvious, particularly to lawyers and law professors. But apparently it is not.

One of the few writers who have ventured beyond Blackstone is Raoul Berger. Berger was not a legal scholar but a Harvard political scientist who authored a leading book on impeachment. Perhaps because he wrote before electronic search methods were available, however, Berger’s investigation into contemporaneous law was cursory. His conclusion was that “high misdemeanors” were “words of art confined to impeachments, without roots in the ordinary criminal law.” But as this article demonstrates, this conclusion could not have been more wrong.

My earlier conclusion was wrong too. Founding-era legal materials reveal that “high misdemeanor” was a frequently used legal term of art with a fixed and specific meaning. By adopting it, the Founders raised the bar for impeachment well above the House of Commons’ standard in the then-current Warren Hastings case and well above the standards codified in most state constitutions.

Here is a link to Professor Natelson's earlier article (whose conclusions he is now rejecting), and here is a recent short essay summarizing his conclusions.