Impeachable Offenses

The Convention came to its choice of words describing the grounds for impeachment after much deliberation, but the phrasing derived directly from the English practice. On June 2, 1787, the framers adopted a provision that the executive should “be removable on impeachment & conviction of mal-practice or neglect of duty.”857 The Committee of Detail reported as grounds “Treason (or) Bribery or Corruption.”858 And the Committee of Eleven reduced the phrase to “Treason, or bribery.”859 On September 8, Mason objected to this limitation, observing that the term did not encompass all the conduct that should be grounds for removal; he therefore proposed to add “or maladministration” following “bribery.” Upon Madison’s objection that “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate,” Mason suggested “other high crimes & misdemeanors,” which was adopted without further recorded debate.860

The phrase “high crimes and misdemeanors” in the context of impeachments has an ancient English history, first turning up in the impeachment of the Earl of Suffolk in 1388.861 Treason is defined in the Constitution.862 Bribery is not, but it had a clear common law meaning and is now well covered by statute.863 “High crimes and misdemeanors,” however, is an undefined and indefinite phrase, which, in England, had comprehended conduct not constituting indictable offenses.864 Use of the word “other” to link “high crimes and misdemeanors” with “treason” and “bribery” is arguably indicative of the types and seriousness of conduct encompassed by “high crimes and misdemeanors.” Similarly, the word “high” apparently carried with it a restrictive meaning.865

Debate prior to adoption of the phrase866 and comments thereafter in the ratifying conventions867 were to the effect that the President (all the debate was in terms of the President) should be removable by impeachment for commissions or omissions in office which were not criminally cognizable. And in the First Congress’s “removal” debate, Madison maintained that the wanton dismissal of meritorious officers would be an act of maladministration which would render the President subject to impeachment.868 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior.869 The scope of the power has been the subject of continuing debate.870

Footnotes

857: 1 M. Farrand, supra, at 88.
858: 2 M. Farrand at 172, 186.
859: Id. at 499.
860: Id. at 550.
861: 1 T. HOWELL, STATE TRIALS AND PROCEEDINGS FOR HIGH TREASON AND OTHER CRIMES AND MISDEMEANORS FROM THE EARLIEST PERIOD TO THE PRESENT TIMES 90, 91 (1809); A. SIMPSON, TREATISE ON FEDERAL IMPEACHMENTS 86 (1916).
862: Article III, § 3.
863: The use of a technical term known in the common law would require resort to the common law for its meaning, United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818) (per Chief Justice Marshall); United States v. Jones, 26 Fed. Cas. 653, 655 (No. 15,494) (C.C.Pa. 1813) (per Justice Washington), leaving aside the issue of the cognizability of common law crimes in federal courts. See Act of April 30, 1790, § 21, 1 Stat. 117.
864: Berger, Impeachment for “High Crimes and Misdemeanors,” 44 S. CAL. L. REV. 395, 400–415 (1971).
865: The extradition provision reported by the Committee on Detail had provided for the delivering up of persons charged with “Treason[,] Felony or high Misdemeanors.” 2 M. Farrand, supra, at 174. But the phrase “high Misdemeanors” was replaced with “other crimes” “in order to comprehend all proper cases: it being doubtful whether ‘high misdemeanor’ had not a technical meaning too limited.” Id. at 443.
866: See id. at 64–69, 550–51.
867: E.g., 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION 341, 498, 500, 528 (1836) (Madison); 4 id. at 276, 281 ©. C. Pinckney: Rutledge): 3 id. at 516 (Corbin): 4 id. at 263 (Pendleton). Cf. THE FEDERALIST, No. 65 (J. Cooke ed. 1961), 439–45 (Hamilton).
868: 1 ANNALS OF CONG. 372–73 (1789).
869: 4 J. Elliot, supra at 126 (Iredell); 2 id. at 478 (Wilson). For a good account of the debate at the Constitutional Convention and in the ratifying conventions, see Alex Simpson, Jr., Federal Impeachments, 64 U. PA. L. REV. 651, 676–95 (1916)
870: See generally CHARLES L. BLACK, IMPEACHMENT: A HANDBOOK (1974); RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS (1973); MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2d ed. 2000); PETER CHARLES HOFFER AND N.E.H. HULL, IMPEACHMENT IN AMERICA, 1635–1805 (1984); JOHN R. LABOVITZ, PRESIDENTIAL IMPEACHMENT (1978); 3 DESCHLER ’ S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, ch. 14, § 3 “Grounds for Impeachments,” H.R. Doc. No. 661, 94th Cong. 2d Sess. (1977); Charles Doyle, Impeachment Grounds: A Collection of Selected Materials, CRS Report for Congress 98–882A (1998); and Elizabeth B. Bazan, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice, CRS Report for Congress 98–186A (1998).