‘High Crimes, Misdemeanors’: A Yardstick Whittled by History

As the House on Friday debated impeaching a president for just the second time in history, it measured President Clinton’s behavior against the only yardstick the Constitution offers: that a president can be removed from office only for “treason, bribery or other high crimes and misdemeanors.”

But what do those ambiguous-sounding final four words mean?

Do “high crimes and misdemeanors” cover personal misdeeds and moral failures, as House Republicans contend? Or does the phrase refer only to major crimes and abuses of official power against the government or the Constitution, as some of Clinton’s defenders argue?

So vague is the Constitution’s language that in 1970 then-Rep. Gerald R. Ford said: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

But as the records of the 1787 constitutional convention show, the framers actually had a clear vision of the kinds of misconduct that should be grounds for impeachment.

In their final vote on the issue, the state delegations agreed unanimously that the president could be impeached only for treason or bribery or other high crimes and misdemeanors “against the United States.”

Those last four words were added specifically “to avoid ambiguity,” in the words of the delegates. As they had made clear throughout their deliberations, the delegates were concerned not about future presidents’ personal conduct but about the possibility that they might betray the country or usurp power in ways that subverted the government or the Constitution itself.

What happened to those four words? The answer lies with the gremlins of history--those strange twists of events that scholars even now have trouble explaining.

Weary Delegates Drop Key Phrase

After nearly four months of drafting constitutional language, the weary delegates set up a five-member Committee on Style to put the various sections in some logical order and to smooth out the language. The committee dropped the phrase “against the United States,” leaving only the now-familiar “treason, bribery or other high crimes and misdemeanors.”

In the rush to adjourn, no one seems to have noticed the change. There is no record of discussion about it. Certainly there was no vote to delete the clarifying phrase.

To be sure, what the framers intended is not binding on their descendants. One reason the Constitution has endured is that it can be reinterpreted to reflect contemporary views.

Recurrently in American history, both presidents and members of Congress have read the Constitution in ways that the framers may not have intended.

It is ironic, however, that in today’s struggle over impeaching Clinton, conservatives and liberals have switched sides on how to interpret the Constitution.

Conservatives, who in most contexts insist on obedience to “original intent,” are arguing instead for a broader reading of the Constitution. Democrats, usually on the side of constantly reinterpreting the Constitution in light of new circumstances and events, have become strict constructionists.

Framers Thought All Was Clear

Regardless of which approach is right, the framers thought they had done their best to make their thinking on impeachment clear.

When the constitutional convention delegates took up impeachment for the first time, they accepted without debate the suggestion of two North Carolina members that a chief executive could “be removable on impeachment and conviction of malpractice or neglect of duty.” Only when the convention turned to the subject for a second time did a real discussion occur.

The delegates voiced particular concern about “cabal and corruption” in the election process. They worried that a politician might gain the presidency through “corruption” and that, once in office, a president “might spare no efforts or means whatever” to be reelected.

The delegates also feared the prospect that a greedy executive might succumb to temptation and “betray his trust to foreign powers.” Several pointed to the conduct of Charles II, king of England more than 100 years earlier, who accepted a bribe from Louis XIV of France as part of a plot to reestablish the Roman Catholic Church as England’s official church.

Some delegates warned that exposing the president to the possibility of impeachment might enable the legislature to use the threat of trial to “destroy his independence.”

Benjamin Franklin countered with the case of William V of Orange, the hereditary ruler of the Netherlands, who was long suspected of sabotaging a joint naval effort by France and Holland during the American Revolution. If William had been subject to an impeachment process, a formal inquiry could have established his guilt--or restored the public’s trust by proving his innocence.

When delegates next voted on the impeachment process, they merely reaffirmed that an executive could face impeachment and removal for malpractice or neglect of duty. A five-member drafting committee then wrote language providing impeachment for “treason, bribery, or corruption.”

The delegates did not closely explore impeachment again until early September. By then the statement on impeachment had, without real debate, been shortened to cover only bribery and treason.

George Mason of Virginia argued for broader grounds. There were “many great and dangerous offenses” that could “subvert the Constitution” and yet not be treason as the Constitution defined it, Mason said.

He alluded to the case of British statesman Warren Hastings, the longtime governor general of India, who had been notorious for supposedly extracting money and confiscating lands from Indian rulers. To cover such cases, Mason suggested that “maladministration” be added to treason and bribery as a reason for impeaching a president.

James Madison protested that “so vague a term will be equivalent to a tenure during the pleasure of the Senate.” Mason agreed. He withdrew the term “maladministration” and, in its place, recommended adding “high crimes and misdemeanors against the state.”

The delegates accepted that addition but quickly revised it to “high crimes and misdemeanors against the United States.” They did this, they emphasized, “to remove ambiguity.”

Then the Committee on Style went to work. It didn’t have much time. When it reported four days later, “against the United States” had disappeared, apparently victim of the committee’s desire for a single statement of impeachment that would cover all officials, not just the president.

None of the delegates protested, perhaps because they were eager to wrap up their work and adjourn.

Ford Examined Issue Closely

If those four words remained in the Constitution, events today might be taking a very different course.

Ford examined the issue closely in 1970, when he was part of a move to impeach the late Supreme Court Justice William O. Douglas. Ford concluded that federal judges could be impeached for ordinary crimes, because they held lifetime appointments and never stood for election.

Presidents, he said, were a different story. Since they faced the voters every four years and could easily be removed, the standard for impeaching them was substantially higher:

“To remove them at midterm,” Ford said, “would indeed require crimes of the magnitude of treason and bribery.”

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Alexander is a history professor at the University of Cincinnati and Cooper is a Times staff writer.