Faithless Execution. Andrew C McCarthy
elaborates:
Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.13
“High crimes and misdemeanors” is a concept rooted not in statutory offenses fit for criminal court proceedings, but in damage done to the societal order by persons in whom great public trust has been reposed. Hamilton described impeachable offenses as those
which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.14 [Emphasis in original.]
Mason fixed on betrayal of the president’s fiduciary duty and oath of allegiance to our system of government, saying that “attempts to subvert the Constitution” would be chief among the “many great and dangerous offences” beyond treason and bribery for which removal of the president would be warranted. It is noteworthy for our purposes that the Framers regarded the mere attempt to subvert the Constitution, whether successful or not, as a sufficiently heinous breach of trust to warrant removal by impeachment.
What distinguishes impeachment from judicial proceedings and technical legal processes is its political aspect. As the Constitution Society’s Jon Roland points out, it was immaterial whether the offenses cited in articles of impeachment “were prohibited by statutes”; what mattered were “the obligations of the offender. . . . The obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.”15
This explanation echoes Joseph Story’s elaboration on the “political character” of impeachment in his seminal 1833 treatise, Commentaries on the Constitution. Justice Story noted that while “crimes of a strictly legal character” would be included, the removal power
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. They must be judged of by the habits and rules and principles of diplomacy, or departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations of foreign as well as domestic political movements; and in short, by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence.16
An essential attribute of criminal laws is definitiveness. Our jurisprudence mandates that the laws put a person of ordinary intelligence on notice about what is prohibited. Otherwise, law enforcement becomes capricious and tyrannical. “High crimes and misdemeanors,” by contrast, is a concept neither conceived for nor applicable to quotidian law enforcement. It is redolent of oath, honor, and fiduciary obligation. These notions, conveying positive duties, are more demanding of the public officials than the clear prohibitions of the criminal law. They are also more abstract: It is not as easy to divine what duty calls for in the various situations a public official confronts as it is to say whether a given private citizen’s course of conduct satisfies the essential elements of a penal statute.
This distinction makes impeachment rare—a process reserved for grave public wrongs. It does not make impeachment arbitrary, as implied by the deservedly maligned claim that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” It is one of history’s curiosities that this assertion was made in 1970 by Congressman Gerald R. Ford during his failed effort to impeach William O. Douglas, the irascible liberal Supreme Court justice. Ford would replace Spiro Agnew as vice president before the end of 1973, and Richard Nixon as president eight months later—Agnew and Nixon both having resigned to avoid impeachment and removal.17
It is odd that politicians, law professors, and plaintiff’s lawyers have been known to complain that “high crimes and misdemeanors” is too amorphous a notion to apply to political wrongs. They rarely think twice about dressing down, condemning, or filing suit against a corporate CEO for breaches of fiduciary obligations. Do they really think a president should be less accountable than a CEO? In truth, the president, the commander in chief, is akin to a soldier in that his duties make him punishable for actions that would not be offenses if committed by a civilian: such things as abuse of authority, dereliction of duty, moral turpitude, conduct unbecoming, and the violation of an oath.18
The delegates to the Constitutional Convention were adamant that impeachment not reach to errors of judgment, or what Edmund Randolph described as “a willful mistake of the heart, or an involuntary fault of the head.” On the other hand, betrayals of the constitutional order, dishonesty in the executive’s dealing with Congress, and concealment of dealings with foreign powers that could be injurious to the rights of the people were among the most grievous high crimes and misdemeanors in the Framers’ estimation. The concept also embraced the principle that “the most powerful magistrates should be amenable to the law,” as James Wilson put it in his “Lectures on Law,” delivered shortly after the Constitution was adopted.
For example, in response to a hypothetical in which a president, to ram a treaty through to ratification, brought together friendly senators from only a few of the states so as to rig the Constitution’s two-thirds approval process, Madison remarked: “Were the president to commit any thing so atrocious . . . he would be impeached and convicted, as a majority of the states would be affected by his misdemeanor.” Iredell made clear that the president “must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives.” It would be untenable to abide a president’s fraudulently inducing senators “to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them.”
Finally, the Framers stressed that the impeachment remedy was a vital congressional check on the executive branch as a whole, not just on the president’s personal compliance with constitutional norms. The chief executive, Madison asserted, would be wholly “responsible for [the] conduct” of executive branch officials. Therefore, it would “subject [the president] to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.”
What would the Framers have made of a U.S. attorney general who practices racial discrimination in executing the civil rights laws, politicizes law enforcement, and urges state attorneys general to ignore the laws they are sworn to defend? Of a Homeland Security secretary who obstructs sovereign states trying to defend themselves from illegal immigration? Of a secretary of state who collaborates with foreign governments to diminish American constitutional rights and recklessly neglects to provide adequate security for American officials, who consequently get killed serving in the perilous foreign posts to which she has irresponsibly dispatched them? What would the Framers have made of a Health and Human Services secretary (perhaps I should end the question right there) who energetically violates and rewrites congressional statutes in the simultaneously fraudulent and incompetent implementation of a government plan to seize control of the private economy’s healthcare sector? What would they make of the habit the president’s “coadjutors”