'High Crimes & Misdemeanors': Defining the Constitutional Limits on Presidential Impeachment

Abstract

This article addresses the problem of defining those offenses for which a President of the United States may constitutionally be impeached and removed from office. It also considers the even more nettlesome questions of whether there are impeachable offenses for which Congress could, but need not, constitutionally remove a President, and if such offenses exist, how Congress should exercise its discretion either to impeach or to hold its hand. The article had its genesis in a statement by the authors submitted to the House Judiciary Committee on behalf of the National Association of Criminal Defense Lawyers during its proceedings regarding the impeachment of President Clinton. This final much-expanded version was written after the conclusion of the Clinton impeachment proceedings in the Senate and is informed by the course those proceedings took, but is not, strictly speaking, an article about the Clinton impeachment. Instead, the article approaches the issue of defining impeachable offenses more generally, reviewing history, text, and scholarship to discern the meaning of the constitutional phrase Treason, Bribery, or other high Crimes and Misdemeanors. In doing so, the article deals principally with five interpretive questions that recurred throughout the Clinton impeachment process, and that will certainly reemerge in any future presidential impeachment controversy:

1. Must an impeachable offense be a crime?

2. If non-criminal conduct is impeachable, what distinguishes impeachable from non-impeachable non-criminal conduct?

3. Is all criminal conduct a proper ground for impeachment?

4. If not all crimes are impeachable offenses, what distinguishes impeachable crimes from non-impeachable crimes?

5. Finally, is there a category of impeachable offenses for which the congress should nonetheless not impeach?

The article concludes that there are impeachable offenses for which Congress may constitutionally and properly decide not to impeach or remove a President. The article proposes a model akin to the exercise of prosecutorial discretion in filing criminal charges for analyzing the congressional decision on impeachment and removal. Finally, the article considers whether Congress ought properly to consider the legal processes and political context in which allegations of impeachable behavior are unearthed and levelled. We conclude that, while Presidents must obey the law, the impeachment calculus may in the extraordinary case require a judgment about the legal process that unearthed or even induced allegedly unlawful presidential behavior. Impeachment is a political tool whose constitutional function is to remove officials whose presence in office disserves the country. As a political process, impeachment can equally aptly, and equally constitutionally, be used as a vehicle to express disapproval of a method of politics more destructive of the public welfare than the continuance in office of a particular officeholder.

Keywords: impeachment, president, impeach, high crimes and misdemeanors, Clinton

JEL Classification: K10, K14