by Terry J. Wechsler
There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.
— John Adams, Notes for an oration at Braintree (Spring 1772)
The 45th president of the United States, Donald J. Trump, our “POTUS,” has expanded the national consciousness about what checks and balances do not mean relative to the executive branch. Fun facts which have risen in relative importance in our collective knowledge include:
• No law mandates the Executive reveal personal financial information;
• No law expressly precludes the Executive from conflicts of interest in carrying out his official duties;
• “Emoluments” does not refer to body oils; and
• There is a 25th Amendment, and though rarely referred to, it can come in very handy.
The Framers of the Constitution placed few checks on the Executive directly, but not out of deference. On the contrary, they feared that a single person controlling one of the three branches of the federal government risked their democratic system shifting toward a monarchy. The legislative branch, the Framers assumed, with so many members, would be less susceptible to jeopardizing the entire system were one or two bad apples to seize power. So it was there that they placed the Constitution’s checks on the executive branch: the impeachment process.
The most important lesson to be learned from the Trump presidency is that the legal standard for impeachment — “high crimes and misdemeanors” — does not, in fact, refer to crimes, per se.
The historical context and bases for impeachment are addressed by a report (1) written by the staff of the Congressional House Judiciary Committee in the aftermath of the Nixon impeachment inquiry. Submitted Feb. 22, 1974, by then-committee Chairman Peter W. Rodino, Jr. (D, NJ), it established a framework of understanding which future House committees could utilize in beginning deliberations, should they choose. It has no power of law, but it is a scholarly work and provides context.
Most know the general construct of Article II, Section 4 of the Constitution: all civil “officers” of the United States, including the president and vice president, “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Article I, Section 2 provides that the House of Representatives shall impeach. The Senate, presided over by the Chief Justice of the Supreme Court, acts as trier, with conviction requiring concurrence by two-thirds of the members “present.” Article I, Section 3.
Judgment in such cases only serves to remove a person from office and strip him or her of eligibility to serve in any federal office in the future. It does not constitute a criminal conviction. Only the Senate may try a sitting President, but after removal from office an ex-president may be prosecuted in a court of law for any provable criminal acts, like obstruction of justice.
Pardons do not apply to impeachment. Article II, Section 2. Whether a pardon would apply after judgment by the Senate and removal from office, to bar criminal prosecution, is a question beyond the scope of this inquiry. Since the issue is without historical precedent, there is no case law governing the question. Scholars may wrestle with that question someday, but as of now, the question that the sitting Congress must address is whether acts of the POTUS, the Vice President or other office holder constitute “high crimes and misdemeanors.”
There is no federal standard for “high crimes and misdemeanors,” and it is not defined by a federal criminal code. The key issue is that “high” does not refer to the nature of the offense but, rather, the status of the offender. We do not have a monarchy, but the Framers borrowed from centuries of English parliamentary tradition when they used what was, at that time, an established legal term of art.
The British could not impeach their monarch, but they could check the power of the throne by exerting control over his or her ministers, and have done so since the 1300’s. While a statutory violation could constitute grounds for parliamentary impeachment, it was not required; abuse of official power would suffice, and, historically, violations involved such vague notions as abuse of the powers of office, neglecting one’s duty, encroaching on the power of the legislative branch, corruption, or simply “betrayal of trust.” (2)
Scholars of the subject note that the Framers were educated men, many of them attorneys who would know “high crimes and misdemeanors” was a legal term of art triggering reference to the “common law” of cases that “came over on the Mayflower” to inform interpretation of laws in this country. Additionally, as the Framers debated specific language to use in the final draft of the Constitution, an impeachment case was proceeding through Parliament.Framer George Mason wrote a thesis complaining treason would be too narrow a constitutional ground for impeachment. Mason cited as an example the charges brought against Warren Hastings in 1786, which included grossly negligent administration, corruption in office, and cruelty toward citizens of India.
Mason prevailed, but before adopting the final language of the Constitution, the Framers struggled with how to communicate their intention to broaden the grounds for impeachment to reach more than merely then-recognized common law “crimes.” Various drafts and recommendations included such terms as “mal-practice” and “negligence or inattention” before the Framers settled on “other high crimes and misdemeanors.”
The Framers did not need to address specific acts of misconduct on the part of the Executive, such as conflicts of interest, because they did bestow such wide latitude on the judgment of the legislative branch to remove an unfit president or other high-level officer.
Further, far from assuming impeachment would be rare, the Framers assumed an office held by a single person would be more susceptible to “loss of capacity or corruption,” as James Madison put it. Benjamin Franklin wanted the Constitution to allow for the “regular punishment of the Executive when his misconduct should deserve it.” Franklin believed it would actually benefit office holders to allow the Congress wide latitude so that assassination would not be the sole means of redress when an officer “rendered himself obnoxious.”
For these reasons, impeachment is rightly referred to as a “political and not a legal” remedy. Any violation of the oath of office may constitute grounds for impeachment if it sufficiently offends the House of Representatives. There is no legal threshold of proof required, such as “beyond a reasonable doubt.” As a uniquely-separate Congressional power, the judgment of the Senate is final; the courts, including the Supreme Court, have no jurisdiction to review the determination on appeal.
One of the Framers’ greatest concerns was that future Executives might find themselves hamstrung by unreasonable threats of impeachment by an imperious Congress. They did not specifically address this issue procedurally in the Constitution, apparently trusting the size of Congress, the requirement that both houses act and the two-thirds vote necessary in the Senate for judgment, to serve as adequate checks on the legislative branch.
Similarly, the Framers provided no triggers requiring Congress to act to impeach or try an officeholder, nor is there any recourse for failure to act. The Constitution has no provision for recall of members of Congress, (3) but by providing for two-year terms for House members, the Framers did what they could to limit the mischief of a future unchecked Executive by transferring a form of power to the voters via congressional elections.
1. U.S. House. Judiciary Committee. Constitutional Grounds for Presidential Impeachment. 93rd Cong., 2nd sess., 1974, located online May 11, 2017, at http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/watergatedoc.htm. See also https://democrats-judiciary.house.gov/sites/democrats.judiciary.house.gov/files/1974ImpeachmentInquiryReport.pdf.
2. Ibid., sec. II(A). All statements of law or fact, including quotations, derive primarily from this section; all are supported by the Report of the Judiciary Committee of the 93rd Congress.
3. Eighteen state constitutions, including Washington’s, allow for recall of members of their state legislature, but removal of congress persons is a federal question.
Terry Wechsler is a licensed Washington attorney and frequent contributor about fossil fuel transportation proposals in Whatcom County.