High Crimes Without Law

132 Harv. L. Rev. F. 59 (2018)

Harvard Public Law Working Paper No. 19-10

19 Pages Posted: 2 Jan 2019 Last revised: 14 Mar 2019

Date Written: December 10, 2018

Abstract

Professor Bowie has authored one of two Responses the Forum is running in December inspired by Professor Laurence Tribe and Joshua Matz’s recently published book on impeachment, To End a Presidency. These pieces are being published contemporaneously with Professor Michael Stokes Paulsen’s book review. Bowie offers a theory of the proper scope of the impeachment power that neither Paulsen nor Tribe and Matz embrace — namely, that Congress may only impeach for conduct that violated an extant criminal law. In other words, “high Crimes and Misdemeanors” can only refer to conduct that is in fact a crime or a misdemeanor, and impeachment is best understood as a criminal, rather than civil, process. This was the theory articulated by then-former Supreme Court Justice Benjamin Curtis as he defended President Andrew Johnson from impeachment, and Bowie asserts that Curtis’s theory has been right all along. Among his many arguments, Bowie closes with a practical one: Insisting that impeachment be grounded in positive criminal law is the most effective way to ensure that, both now and in the future, it does not become a mere political weapon.

Keywords: impeachment, constitutional law, Andrew Johnson, legal history

Suggested Citation

Bowie, Nikolas, High Crimes Without Law (December 10, 2018). 132 Harv. L. Rev. F. 59 (2018); Harvard Public Law Working Paper No. 19-10. Available at SSRN: https://ssrn.com/abstract=3299516

Nikolas Bowie (Contact Author)

Harvard Law School ( email )

1525 Massachusetts Ave.
Griswold 406
Cambridge, MA 02138
United States

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