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FIRST PRINCIPLES

Most experts on the U.S. Constitution believe that a sitting president cannot be indicted and tried for a crime. Hauling presidents into court to face criminal charges would distract them from their responsibilities and undermine their authority as head of the executive branch. A one-person head of state must always be on duty, even when on a golf course seeking rest and rejuvenation. The president is at all times accompanied by a military officer carrying a device that could initiate a nuclear attack.

As Thomas Jefferson put it, if the president could be prosecuted, local prosecutors and courts could “bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his constitutional duties.”¹ Worse still, partisan juries might convict the president based on politics rather than actual criminal activity. Even a legitimate conviction would be unacceptable, as the nation cannot function dependably with the president behind bars.

But while granting the president immunity from prosecution while still in office solves one problem, it risks compromising the sacred principle that no one is above the law. The framers resolved this dilemma with a two-part approach. First, the Constitution provides a discrete means of dealing with a president’s intolerable misconduct—impeachment. This process does not require the president’s presence and, more important, cannot result in his or her incarceration: The Constitution specifies that the only punishment upon conviction in an impeachment trial is loss of office (and, potentially, disqualification from future office). However, it allows that presidents can face criminal punishment once removed from office, thus assuring that they not remain above the law.

The impeachment process, taking place on the floors of Congress rather than in a courtroom, and not involving criminal penalties, does not fit neatly in our usual categories. As a result, there is ongoing debate regarding whether impeachment is a political or a judicial process.

Some argue that because the sole consequence is loss of office, and the indictment and trial are conducted by the legislative branch, whose members face the voters, the process must be viewed as political. Others counter that during impeachment Congress acts in a judicial capacity and thus must rise above partisan politics. This debate evokes the dueling mantras in the old “tastes great, less filling” beer commercials. A careful reading of the Constitution establishes impeachment as a political and judicial process.

If the founders had intended impeachment to be wholly judicial, they would have given the courts the leading role in conducting the trial. In fact, they gave serious thought to having impeachment trials be conducted by the U.S. Supreme Court but decided instead to place that authority in the Senate. Indeed, the framers largely kept the courts out of this process.^* Although the Constitution does not say this in so many words, it envisions that following an impeachment trial, the Senate’s verdict is final—not subject to review by any court.

However, to conclude that the process is purely political would be to ignore several of the Constitution’s provisions. Prior to an impeachment trial, each senator must take a judicial-like “oath or affirmation” (above and beyond her oath of office) to do justice. The Constitution gives the Senate the power to “try all impeachments.” Just as trial by the Senate is necessarily somewhat political, a trial by any institution is necessarily somewhat judicial. So too, the Constitution says that, in an impeachment trial, “no person shall be convicted” without a two-thirds vote, and sets forth treason, bribery, and “high crimes and misdemeanors” as bases for removal, again using the concepts and vocabulary of criminal law.

The Constitution, then, establishes a political/judicial hybrid. Assigning impeachment to political actors ensures a substantial political dimension to a judicial-like proceeding. The latter requires the essentials of a trial: It must afford presidents due process, the right to confront evidence against them, and the right to present their own. One aspect of a trial that will not be present, however, is perfectly impartial judges. We simply cannot expect senators to be indifferent to all considerations except justice in the case at hand. One asks that of judges, not legislators.

One might respond that the senators are indeed judges during the impeachment trial, but that evokes the riddle favored by President Lincoln: “If you call a tail a leg, how many legs does a horse have? No, not five. Calling a tail a leg doesn’t make it one.” Calling senators judges cannot undo the reality that they are politicians. Members of Congress routinely communicate with constituents and generally have an eye on their next election (though senators, with longer terms, can afford to be less immediately responsive to public opinion than their counterparts in the House). Moreover, the framers expected that many senators would maintain personal or professional relationships with the president. We do not accept judges and juries having such relationships with the parties to a case.

The partial politicization of impeachment is healthy. That senators will take into account not merely the facts and law but also the best interests of their political party, and themselves, safeguards against overly easy conviction. Ideally they will also take into account the best interests of the nation—something they, more than judges, are conditioned and positioned to consider. Presidents will be removed only when two-thirds of a body that faces the voters determines that they and/or the nation will be better off. Far more often than not, convicting the president will require guilty votes from members of the president’s own party, giving the verdict to remove the president more legitimacy.

As noted, the Constitution authorizes impeachment for “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery are reasonably clear, but what are high crimes and misdemeanors? The phrase was a term of art imported from British law, but not clearly defined there or here. Gerald Ford, at the time a congressman initiating impeachment proceedings against Supreme Court justice William O. Douglas, offered a famous definition: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”²

Ford was speaking of the impeachment of judges, and clarified that presidents could be impeached only for serious offenses. But that distinction got washed away, and many commentators and politicians over the years have approvingly quoted Ford in the context of presidential impeachment. Even so, they are in one sense correct: The Constitution does not define high crimes and misdemeanors, and neither Congress nor the courts have stepped in to fill that void. But equating an impeachable offense with whatever the House of Representatives declares it to be is misguided if meant to suggest that the president serves at the whim of Congress.

The Constitution does not envision that Congress can remove the president any time it pleases. Rather, by specifying that it can do so only for bribery, treason, or high crimes and misdemeanors, the Constitution implies the opposite: Congress may remove the president only when he or she commits certain improper acts. Which brings us back to the paramount question: What are high crimes and misdemeanors?

We find clues from context, starting with the fact that treason and bribery are the two specified bases for removal. Had the Constitution omitted mention of specific crimes justifying impeachment, no one would have doubted that treason and bribery qualified. So why did the framers bother to name these crimes? Presumably they wished to provide a concrete idea of the nature of the conduct warranting removal. The Constitution defines treason as “levying war against [the United States], or in adhering to their enemies, giving them aid and comfort.” It didn’t have to define bribery, because everyone knows what that is: to get someone to act in one’s favor by a gift of money or other improper inducement. If nothing else, the inclusion of treason and bribery suggests that the framers had in mind serious misconduct.

It also suggests that they contemplated offenses that compromise the public good. The president who gives or accepts bribes, like the one who commits treason, allows something to compete with the interests of the United States. Worse, in the case of treason (and sometimes bribery), the national security of the United States is directly attacked or subverted.

Significantly, an earlier draft of the Constitution cited bribery and treason as the only grounds for impeachment. Convention delegate George Mason protested that the grounds for impeachment had to be broadened, because treason and bribery “will not reach many great and dangerous offenses.”³ He proposed adding the catch-all “maladministration.” (Mason’s motion was seconded by Elbridge Gerry, the Massachusetts delegate whose surname and oddly shaped congressional district—it resembled a salamander—gave rise to the term “gerrymander.”) Notwithstanding the fact that many state constitutions at the time included “maladministration” as a basis for impeachment, James Madison, widely proclaimed the father of the Constitution, objected that “so vague a term will be equivalent to a tenure during the pleasure of the Senate.”⁴ Mason withdrew “maladministration” and replaced it with “high crimes and misdemeanors.” Madison agreed and the amended clause passed.

The exchange between the two Virginians provides insight into the framers’ thinking on impeachment. They did not regard high crimes and misdemeanors as synonymous with “anything Congress decides is disqualifying”—they rejected “maladministration” precisely because it could be so interpreted. The framers consciously rejected the British model in which Parliament can vote “no confidence” against prime ministers and remove them whenever it believes their administration to be ineffective or misguided.

But the framers did not leave treason and bribery as the only bases for conviction and removal. They added high crimes and misdemeanors in order to encompass other “great and dangerous offenses.” They wished to reserve impeachment for major misconduct. The dialogue between Madison and Mason dovetails with the specifying of the particularly serious crimes of treason and bribery.

Their exchange, which took place on September 8, 1787, a little more than a week before the delegates voted to adopt the Constitution, comprised the Convention’s sole discussion of high crimes and misdemeanors. The Federalist, influential essays by Madison, Alexander Hamilton, and John Jay advocating ratification of the Constitution, also briefly touches on the idea of an impeachable offense. Most significantly, in Federalist 65 Hamilton writes that the impeachable offense arises from “the abuse or violation of some public trust” and “relate[s] chiefly to injuries done immediately to the society itself.”⁵

Hamilton’s characterization supports the view that the offense must be serious and implies that it need not be criminal. That view has taken hold. Some targets of impeachment, including Supreme Court Justice Samuel Chase in the nation’s early days and President Richard Nixon almost two centuries later, insisted that only criminal conduct may be impeachable, but that notion has been rightly rejected. Suppose the president censored his political opponents or pardoned all criminals from his own party. Such conduct, though not specifically prohibited by any statutes, would clearly warrant impeachment and conviction.

Just as there may be impeachable offenses that are not crimes, some crimes may not be impeachable. Certain offenses, such as traffic violations (were a president ever to get behind the wheel), are too minor to warrant impeachment, even if they technically constitute crimes. No one would approve removing a president because he or she went fishing without a license. The Constitution’s reference to “misdemeanors,” a legal term referring to minor offenses generally punishable by at most one year in prison, is misleading. The phrase “high crimes and misdemeanors” constitutes a single term. Some commentators interpret the modifier “high” to apply to both “crime” and “misdemeanors” and thus to reinforce that only serious misconduct qualifies. Others believe that “misdemeanors” was included simply to clarify that impeachment did not require an actual crime. While we don’t know exactly how the framers regarded “high crimes and misdemeanors,” the inclusion of misdemeanors does not imply that minor misconduct may suffice for impeachment. All the evidence suggests that only major misconduct qualifies.

Focusing on the above considerations, including Hamilton’s reference to “the abuse or violation of some public trust,” we may be tempted to generalize that an impeachable offense involves conduct, whether or not criminal, that undercuts the legitimacy of the United States government. However, some behavior seemingly outside that definition must be impeachable. A president who commits armed robbery or murder in a purely private setting cannot remain in office. Certain actions, even if unrelated to official responsibilities, are simply too egregious to allow the president to maintain the necessary public trust.

But apart from such rare exceptions, the rule seems to be that high crimes and misdemeanors will typically involve an abuse of the presidential office itself. At times, this standard is easy to apply, as when Richard Nixon misused various government agencies and thereby transgressed his Article II powers. At other times, the situation is less clear. Defenders of Bill Clinton argued that lying about his sexual relationship with a White House intern did not constitute an impeachable offense because it did not involve a public matter. Opponents countered that perjury undermines the ability of the judicial system to function and thus compromises the legitimacy of United States government.

We cannot know how the framers would have regarded the Clinton affair. When they used vague or general language such as “high crimes and misdemeanors,” we must look beyond some original understanding (if any there be) of the text. That may be healthy, particularly in the context of impeachment. What was regarded as a grievous offense in 1787 will not necessarily be so viewed today, and vice versa.

It does not follow that we should ignore the framers’ views or values. They bequeathed us a brilliant Constitution, the text of which represents the starting (and sometimes ending) point of every constitutional question. Where their thinking can be discerned, we benefit from their wisdom. But we often need to look further, seeing what lessons can be gleaned from subsequent history.

* The one exception is that the chief justice presides over the trial, since the vice president, who normally presides over the Senate, would have an obvious conflict of interest. Interestingly, the exact nature of the conflict of interest differs today from the situation at the founding. Today, the vice president might favor the president, who selected him and serves as his partner in office. But under the original Constitution, the person receiving the second highest number of votes for president became vice president, so the president and vice president need not be allies. Under those circumstances, the vice president presiding over an impeachment trial might have been expected to stack the deck against the president, increasing the chance that he or she would ascend to the office.