‘High crimes and misdemeanors’ is widely misunderstood when it comes to impeachment — even by some of Trump’s critics: legal scholar
With President Donald Trump facing an impeachment inquiry in the U.S. House of Representatives and the Ukraine scandal being discussed in great detail on cable news, the term “high crimes and misdemeanors” is coming up a lot. But legal expert/author Frank O. Bowman III (who teaches at the University of Missouri Law School) stresses in an article for The Atlantic that the term is widely misunderstood.
“‘High crimes and misdemeanors’ is surely the most troublesome, misleading phrase in the U.S. Constitution,” Bowman explains. “Taken at face value, the words seem to say that impeachable conduct is limited to ‘crimes’ — offenses defined by criminal statutes and punishable in criminal courts.”
Certainly, criminal offenses like tax fraud are impeachable. But as Bowman (author of the book “High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump”) notes in his article, impeachable offenses don’t necessarily have to be violations of criminal law.
“‘High crimes and misdemeanors’ is not, and has never been, limited to indictable criminality,” Bowman asserts. “Nonetheless, despite centuries of learning on the point, there the phrase sits, begging to be taken at its delusory face value.”
Trump is the fourth president in U.S. history who has been targeted for impeachment in the House of Representatives, although in Trump’s case, it’s only an inquiry at this point. The three previous ones were President Andrew Johnson, President Richard Nixon and President Bill Clinton, none of whom were removed from office via a Senate trial. Johnson and Clinton were acquitted in the Senate; Nixon, in August 1974, resigned.
“In nearly every significant American impeachment since 1788,” Bowman observes, “the defenders of the impeached official — whether president, judge, senator or cabinet officer — have argued that their man can’t properly be removed because what he did wasn’t actually a statutory crime. This process has already begun for President Donald Trump.”
Bowman goes on to say that even some of Trump’s critics “entertain” the “erroneous notion” that impeachment has to result from violations of criminal law. And there are others, Bowman writes, who understand what “high crimes and misdemeanors” means but discuss criminal statutes because they are “just easier to explain than old Anglo-American legal jargon.”
“The history of the phrase ‘high crimes and misdemeanors’ and of how it entered our Constitution establishes beyond serious dispute that it extends far beyond mere criminal conduct,” Bowman explains. “The practical reasoning is in some ways more important: a standard that permitted the removal of presidents only for indictable crimes would leave the nation defenseless against the most dangerous kinds of presidential behavior.”
Discussing the impeachments of Johnson and Nixon in the House, Bowman points out that while some of the articles of impeachment brought against them got into “potentially criminal conduct,” their impeachments were by no means based exclusively on criminal matters.
“The beauty of ‘high Crimes and Misdemeanors’ from the perspective of the men of 1787 was that it provided both flexibility and some measure of guidance,” Bowman stresses. “Flexibility because it plainly pointed to the parliamentary practice of defining impeachable conduct on a case-by-case basis. Guidance because it incorporated, by reference, 400 years of prior practice on which one could rely in identifying the kinds and degrees of misbehavior that ought to be impeachable.”