As I see it, the majority of confusion in this impeachment inquiry rests with a single phrase: “high crimes and misdemeanors.” Found in Article II Section 4 of the Constitution, high crimes and misdemeanors, in addition to bribery and treason, are the basis for a president to be impeached and removed from office.
“High crimes and misdemeanors” is assuredly a cause for intellectual consternation. It leads many to conclude that an actual crime must be committed — something punishable by criminal courts. This notion is reinforced by the fact the phrase is preceded by treason and bribery, which are clearly criminal violations.
The origin of the term can be traced back to 1386 with the impeachment of the 1st Earl of Suffolk. It was George Mason who placed the language into the Constitution in 1787 as the ultimate check in a system of checks and balances.
The Founders were less concerned that impeachment and subsequent conviction would nullify the will of the people in a duly held election. Quite the contrary, impeachment was put in place so that one would not have carte blanche to frolic in the fields of maleficence for four years.
A high crime was unique to positions of authority. Taken together, “high crimes and misdemeanors” was used to cover a very broad range of crimes. But how exactly does one define high crimes and misdemeanors in the 21st century?
A contemporary understanding of “high crimes” suggests that if no crime has been committed, there should be no basis for an impeachment inquiry. But as law professor Frank Bowman, author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” opined in the Atlantic Magazine earlier this year:
“But this is not, in fact, what the Constitution requires. “High crimes and misdemeanors” is not, and has never been, limited to indictable criminality. Nonetheless, despite centuries of learning on the point, there the phrase sits, begging to be taken at its delusory face value.”
As rational as it is to link high crimes and misdemeanors to an actual criminal offense, it is not something by which impeachment can be considered. The actions of Presidents Richard Nixon and Bill Clinton were based on malfeasance of a criminal nature. Impeachment is whatever the House says it is — the low-hanging fruit equivalent to a grand jury hearing that only requires a simple majority.
Conversely, legal scholars continue to debate the veracity of charges levied against Andrew Johnson, who was impeached by the House and survived conviction in the Senate by a single vote.
In an April 2019 op-ed in The New York Times, Joe Lockhart, former press secretary to Bill Clinton, recalled that in the fall of 1998, White House Chief of Staff Erskine Bowles met with Speaker Newt Gingrich. Bowles asked the speaker: Why were the Republicans intent on impeaching Bill Clinton? The speaker replied, “Because we can.”
“Because we can” does not necessarily denote a prima facie justification to the current actions by the House, but it does, however, offer that talking points in opposition based on whether an actual crime has been committed to justify impeachment are merely the musings of a sycophant cheerleader.
High crimes and misdemeanors sit in our civics digestive system as if we’ve consumed one piece of fudge too many. Like Justice Potter Stewart defining obscenity, we know high crimes and misdemeanors when we see them, but their definition may be best articulated by what it is not.
After more than a month of closed-door and public testimony, notable for who appeared and who refused to comply, is there sufficient evidence for a majority in the House and two-thirds in the Senate to conclude the president committed high crimes and/or misdemeanors?
The House is accusing the president of soliciting a foreign government of aiding his 2020 campaign. Doesn’t that qualify as a “high crime,” assuming the House is the body entrusted with providing a cogent definition?
The aforementioned question is nearly impossible to answer, given our obstinate desires to fit any understanding of high crimes and misdemeanors into the narrow contours of our prefabricated paradigm.
The 300-page House Intelligence Committee summary of witness testimony, timelines and phone records accused the president of serious political crimes. The accusation is one high crime that has demeaned the office of president. The process will determine whether House allegations have merit.
Because we trust our side more than we trust the process, chances are we will reach a collective definition of high crimes and misdemeanors before there is a change in our attitudes.