High Crimes and Misdemeanors? A Conversation with the Framers About Impeachment

President Trump faces impeachment for conditioning the payment of nearly $400 million in needed military aid to Ukraine as well as a White House visit upon the investigation of his political rival. According to the Impeachment Clause, a president may be impeached for “treason, bribery, or other high crimes and misdemeanors.” We are generally familiar with treason and bribery, but what are “high crimes and misdemeanors?” Let’s ask those who chose the language. (In lieu of law professors testifying, we brought back to life the Framers, through advances in genome sequencing and regeneration.)

Welcome Framers. 

GEORGE MASON: Um, where am I? Did we, as I predicted, “end up in monarchy, or a tyrannical aristocracy.”

JAMES MADISON:  I think we are in England. Did England take back the States as you feared, George?

ALEXANDER HAMILTON:  No, but I think that I became an international rapper…whatever that is.

Our current president is facing impeachment with much debate over what conduct is impeachable. What is the appropriate standard for impeachment?

EDMUND RANDOLPH:  I suggest that we follow my plan for Virginia, which provides for impeachment for “malpractice or neglect of duty.”

JAMES MADISON: Don’t take all the credit as I drafted the plan for Virginia.

GOUVERNEUR MORRIS: I object to any impeachment clause. “[Impeachment] will render the Executive dependent on those who are to impeach.”

GEORGE MASON: As a compromise, I understand that some of my colleagues are agreeable with limiting impeachment to cases of “treason and bribery.” But, we need only to look across the pond to the House of Lords impeachment trial of Warren Hastings, Governor-General of India. He is on trial for confiscating land and inciting protests, which falls outside of this limited standard. Treason and bribery alone “will not reach many great and dangerous offences.”

So, what do you propose?

GEORGE MASON: We should add “maladministration” as a third cause for impeachment.

What’s that?

GEORGE MASON: Maladministration means basically not doing one’s job.

JAMES MADISON: I object. “So vague a term will be equivalent to a tenure during pleasure of the Senate.”

GEORGE MASON: Fine, instead I propose “high crimes and misdemeanors against the State.” It's used by the English Parliament. We need “some mode of displacing an unfit magistrate” but “without making the Executive the mere creature of the Legislative.”

JAMES MADISON: We approve, but only if “against the United States” is added for clarity.

GOUVERNEUR MORRIS: As a member of the Committee of Style and Revision, I have now completed my task of improving the language of the Constitution without changing the meaning.  Accordingly, I deleted “against the United States.”

GEORGE MASON: But you did change the meaning! Now “high crimes and misdemeanors” is vague! I’m not signing this Constitution.

Easy, let's break it down. What is meant by “high crimes and misdemeanors?"

GEORGE MASON: The act must be done by someone in a position of high authority, an official. It also refers to an act that can impact many.

What are examples of high crimes and misdemeanors committed by English officials?

GEORGE MASON: Misappropriating government funds, not spending money allocated by Parliament, disobeying an order from Parliament, and losing a ship by neglecting to moor it, etc.

Are “misdemeanors” limited to that category of crime in criminal law?

JAMES MADISON: There is no category of criminal law called “misdemeanors,” at least in our day. It is a general term for wrongdoings.

Isn’t impeachment really just a political tool?

JAMES MADISON: “There will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstration of innocence or guilt.”

GOUVERNEUR MORRIS: Impeachment could be used as a “tool of a faction.”

Some of our president’s supporters have suggested dispensing with impeachment and letting the upcoming election decide. What are your thoughts?

EDMUND RANDOLPH: I agree. If the president “should be re-elected, that will be sufficient proof of his innocence.”

GEORGE MASON: “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice?”

BENJAMIN FRANKLIN: “Anyone who wishes to be president should support an impeachment clause, because the alternative is assassination.” 

That’s a bit harsh, Ben. Now for the ultimate question, should Trump be impeached for high crimes and misdemeanors?

GEORGE MASON: Who is Trump? George Washington is our president. 
 

Caveat: The above includes some paraphrasing and modernizing of language but quotes are actual language from the corresponding Framers, recorded from their debates. The views expressed are those of the Framers, recorded from such debates, and not necessarily the views of Acker + Associates P.C.