(Emphasis mine).Not but that crimes of a strictly legal character fall within the scope of the power; but that it has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty.
Impeachment cannot be by the whim of the Congress,
False. The only thing at stake are reputations.
I was hoping for a little more substance and discussion than that.
False. The only thing at stake are reputations.
I sometimes get so frustrated I have to get all pedantic! This is one of those times.
There seem to be two extremes that motivate people's opinions on the subject of impeachment, and both are wrong: "High Crimes and Misdemeanors", as used in the Constitution does not imply the use of criminal standards, either to initiate impeachment or to remove an officer from office; nor is it a "purely political" decision, as is often argued. Rather it is a long-established and thoroughly sourced concept based upon the precept that "High" officials hold a position of public trust that requires higher standards of behavior and decorum than the ordinary person. "It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons." Meaning of "High Crimes and Misdemeanors" (Jon Roland, Constitution Society), or, Alexander Hamilton put it, "...those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."
"The framers sought to create a responsible though strong executive; they hoped, in the words of Elbridge Gerry of Massachusetts, that 'the maxim would never be adopted here that the chief Magistrate could do [no] wrong.'" (WaPo, Watergate Docs from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.) "[T]he framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments." If it is not clear from this history that Impeachment is not a criminal process, all doubt is removed by the language of the Constitution itself: "Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law." Art. I, Section 3. This was the understanding as well of Justice Joseph Storey in his Commentaries on the Constitution (1833) (Emphasis mine).
Impeachment is a separate act from criminal conviction, and the rules that apply are necessarily different for a reason. Impeachment cannot be by the whim of the Congress, but is also not constrained by the limits of judicial determination of criminality.
Agreed. The quoted bit in the OP makes it quite clear that "high crime and misdemeanors" was intended to be highly subjective.
It seems like its up to the congress to determine what passes the test to impeach.
If it doesn't convince 2/3rds, then it fails.
If a Congress decided to engage in impeachment for offenses which did not seem to qualify as a high crime or misdemeanor, what recourse would the PotUS have?I ... criminality.
I sometimes get so frustrated I have to get all pedantic! This is one of those times.
There seem to be two extremes that motivate people's opinions on the subject of impeachment, and both are wrong: "High Crimes and Misdemeanors", as used in the Constitution does not imply the use of criminal standards, either to initiate impeachment or to remove an officer from office; nor is it a "purely political" decision, as is often argued. Rather it is a long-established and thoroughly sourced concept based upon the precept that "High" officials hold a position of public trust that requires higher standards of behavior and decorum than the ordinary person. "It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons." Meaning of "High Crimes and Misdemeanors" (Jon Roland, Constitution Society), or, Alexander Hamilton put it, "...those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."
"The framers sought to create a responsible though strong executive; they hoped, in the words of Elbridge Gerry of Massachusetts, that 'the maxim would never be adopted here that the chief Magistrate could do [no] wrong.'" (WaPo, Watergate Docs from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.) "[T]he framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments." If it is not clear from this history that Impeachment is not a criminal process, all doubt is removed by the language of the Constitution itself: "Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law." Art. I, Section 3. This was the understanding as well of Justice Joseph Storey in his Commentaries on the Constitution (1833) (Emphasis mine).
Impeachment is a separate act from criminal conviction, and the rules that apply are necessarily different for a reason. Impeachment cannot be by the whim of the Congress, but is also not constrained by the limits of judicial determination of criminality.
I'm going to take issue with that. It requires more than a subjective "feeling", or is intended to. Although I agree that "reputation" is a significant limiter. It is important to distinguish, though, impeachment versus removal. The process of investigation for impeachment may persuade some that their reputations will be more hurt by inaction than action.
That is indeed how they intended it. But since they didn't provide judicial review for conviction on articles of impeachment, a president can be impeached for having an annoying face just so long as enough votes are there.
If a Congress decided to engage in impeachment for offenses which did not seem to qualify as a high crime or misdemeanor, what recourse would the PotUS have?
Could congress carry out the impeachment?
Or is there some mechanism which would halt the impeachment process Congress decided to initiate?
Is there someone or some mechanism which can prevent, undo, or overrule an impeachment Congress decides to enact?
If Congress is the final word [except for the voters' subsequent retaliatory actions], then despite w/e definitions and explanations exist for the terms high crimes etc., it would seem that pragmatically, political will alone could be theoretically sufficient for an impeachment to occur.
If a Congress decided to engage in impeachment for offenses which did not seem to qualify as a high crime or misdemeanor, what recourse would the PotUS have?
Could congress carry out the impeachment?
Or is there some mechanism which would halt the impeachment process Congress decided to initiate?
Is there someone or some mechanism which can prevent, undo, or overrule an impeachment Congress decides to enact?
If Congress is the final word [except for the voters' subsequent retaliatory actions], then despite w/e definitions and explanations exist for the terms high crimes etc., it would seem that pragmatically, political will alone could be theoretically sufficient for an impeachment to occur.
That is indeed how they intended it. But since they didn't provide judicial review for conviction on articles of impeachment, a president can be impeached for having an annoying face just so long as enough votes are there.
If a jury wants to convict an innocent person of a non-existent crime the Defendant is charged with and the judge goes along with it on the prosecution's urging, there is nothing to stop them. If the Defendant's attorney disagrees and refuses to testify against his client, he goes to prison too.
This is the criminal justice system the Democratic Party demands for all of us.
^ The bizarro world view. Up is down, left is right, poor is rich... In the Constitution every word means whatever each person wants it to. For example "We the People" means "We the people of Latin America" to the Democratic Party. The right to "due process" means "no legal rights of any kind."
To the OPer, "crime" doesn't mean "crime" and "misdemeanor" doesn't mean "misdemeanor." Rather, according to the OP message, "high crimes and misdemeanors" means "a majority of members in the House Of Representatives are in the opposite political party from the president."
To the OPer, "crime" doesn't mean "crime" and "misdemeanor" doesn't mean "misdemeanor."
While I concede that "ultimately" it is a political determination, I agree with friend WillyPete's assertion that "The more substance the "crime or misdemeanor" has the more convincing it is, and presumably the likelihood of a passing vote." That, I think, really is the balance that the framers intended. To think that the determination falls to the conscience of the Senate majority, however, is chilling, indeed. I have not seen a great deal of principle exhibited by that body for decades, and certainly not under the current leadership.
An off day for me.
Ultimately, it is purely political. Were it criminal, it wouldn't be in congress. Congress can indict for any "high crime" they imagine including loss of public trust. The only thing on the line is everyone's reputation and that's how it's supposed to be. If the representatives of the people act in an egregious manner, they will be replaced. And it's their duty to dismiss a problem President for any reason.
I sometimes get so frustrated I have to get all pedantic! This is one of those times.
There seem to be two extremes that motivate people's opinions on the subject of impeachment, and both are wrong: "High Crimes and Misdemeanors", as used in the Constitution does not imply the use of criminal standards, either to initiate impeachment or to remove an officer from office; nor is it a "purely political" decision, as is often argued. Rather it is a long-established and thoroughly sourced concept based upon the precept that "High" officials hold a position of public trust that requires higher standards of behavior and decorum than the ordinary person. "It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons." Meaning of "High Crimes and Misdemeanors" (Jon Roland, Constitution Society), or, Alexander Hamilton put it, "...those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."
"The framers sought to create a responsible though strong executive; they hoped, in the words of Elbridge Gerry of Massachusetts, that 'the maxim would never be adopted here that the chief Magistrate could do [no] wrong.'" (WaPo, Watergate Docs from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.) "[T]he framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments." If it is not clear from this history that Impeachment is not a criminal process, all doubt is removed by the language of the Constitution itself: "Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law." Art. I, Section 3. This was the understanding as well of Justice Joseph Storey in his Commentaries on the Constitution (1833) (Emphasis mine).
Impeachment is a separate act from criminal conviction, and the rules that apply are necessarily different for a reason. Impeachment cannot be by the whim of the Congress, but is also not constrained by the limits of judicial determination of criminality.
If a Congress decided to engage in impeachment for offenses which did not seem to qualify as a high crime or misdemeanor, what recourse would the PotUS have?
Could congress carry out the impeachment?
Or is there some mechanism which would halt the impeachment process Congress decided to initiate?
Is there someone or some mechanism which can prevent, undo, or overrule an impeachment Congress decides to enact?
If Congress is the final word [except for the voters' subsequent retaliatory actions], then despite w/e definitions and explanations exist for the terms high crimes etc., it would seem that pragmatically, political will alone could be theoretically sufficient for an impeachment to occur.
Okay, you've convinced me. Ultimately, it is a political calculation. But substantively, I think the process was intended to be cumbersome so that it would not be engaged in willy-nilly. Like legislation, treaties and veto overrides, the Constitution put hurdles in the way to make sure actions of such moment were strongly supported.
But the most important understanding, I think, is the appreciation that impeachment is not a criminal process, but one instituted to preserve the Constitution and the constitutional order.
To be flip, "they did." To be more expansive, I think it is important to look at the times and precedents they relied upon. The phrase "high crimes and misdemeanors" had an established meaning at the time the Constitution was drafted. It came from the "common law," the part of English law derived from custom and judicial precedent rather than statutory law, which most of the drafters were quite familiar with. There are a number of places in the Constitution where they used such shortcuts because the words, at the time, had established meanings (e.g. "militia"). The Constitution was not intended to be a legal code, but a framework for governance, so it is not larded with a lot of definitions. When the Constitution was drafted, there was not a "federal code" to rely upon when defining terms, so the framers fell back on the common law terms they, and their peers, were familiar with.I have been absent from this forum for a number of years - I appreciate your OP - and admit that I have not thought of your definition of "high" in the way you presented it - and have heard no other analysis in that vein - So thank you for the insight.
But the fact the authors followed that with 'crimes and misdemeanors' should indicate there there be some rational definition somewhere that and Impeachment process should identify as having been broached. Jaywalking is a misdeameanor - but even that has a definition somewhere that identifies what action falls into the category of 'jaywalking.' And the concept of "abuse of power" is not a modern construct. IF the authors had felt that something like "abuse of power" were an impeachable offense they would undoubtedly have made some definition of its meaning.
I thoroughly appreciate your respectful response. That is the kind of discussion I come here to engage in. Unfortunately, it is rare. My interpretation is not unique. In fact, it is the prevailing view. Virtually every impeachment to date has taken that approach, without objection until now.
Let me address where we agree, where we disagree (and why), and I'll avoid what I consider the most partisan points, as I'll explain.
For clarity, I'm going to address your post in chunks. To be flip, "they did." To be more expansive, I think it is important to look at the times and precedents they relied upon. The phrase "high crimes and misdemeanors" had an established meaning at the time the Constitution was drafted. It came from the "common law," the part of English law derived from custom and judicial precedent rather than statutory law, which most of the drafters were quite familiar with. There are a number of places in the Constitution where they used such shortcuts because the words, at the time, had established meanings (e.g. "militia"). The Constitution was not intended to be a legal code, but a framework for governance, so it is not larded with a lot of definitions. When the Constitution was drafted, there was not a "federal code" to rely upon when defining terms, so the framers fell back on the common law terms they, and their peers, were familiar with.
To give you an example: in the vernacular, we describe killing someone intentionally or unintentionally as "murder" or "manslaughter." Those terms come from the common law, not statutes. But, most modern trials rely on statues that codify those terms, identifying "degrees" and specifying punishments. At the time of drafting the phrase "high crimes and misdemeanors" had an established meaning and precedents - it meant "abuse of office". They didn't feel the need to clarify, because it was commonly understood, like "murder" or "manslaughter." (Hamilton addresses this in Federalist 65 & 66.) I'll have more specifics later. Life intrudes.
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