The Truth About 'High Crimes and Misdemeanors'

Even if President Bill Clinton's acts amount to a criminal offense--and at this preliminary grand-jury stage, that is far from clear--his actions do not constitute an impeachable offense under the Constitution.

Impeachment is decided on by a legislative majority, an inherently partisan body. Thus, as Alexander Hamilton put it, "There will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt." Hamilton was right to be worried. Ever since England introduced impeachment in the 14th century, legislative majorities have used it for partisan ends, often unfairly.

To avoid the abuses that occurred in Britain, and because of their own distrust of legislatures, the Constitution's framers limited impeachment to "treason, bribery or other high crimes and misdemeanors" and the consequences of conviction to removal and disqualification from office.

Putting aside treason and bribery as obviously inapplicable, what "other high crimes and misdemeanors" are is not self-evident. The phrase was adopted by the framers from the prior English usage, and in both countries it has come to be understood that the misconduct justifying impeachment might be criminal in the usual sense, but need not be. Conversely, even if the action constitutes a criminal offense it is not necessarily a "high crime or misdemeanor."

This open-ended quality of the phrase explains then-Rep. Gerald R. Ford's claim in 1970, when he tried to impeach Supreme Court Justice William O. Douglas, that "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."

Herman Schwartz is a professor of constitutional law at American University and author of "Packing the Courts: The Conservatives' Campaign to Rewrite the Constitution."

Realistically, that is true. Constitutionally, it is not. Though its scope may be indefinite, "other high crimes and misdemeanors" has a definite meaning.

In the many centuries of British usage and in 16 U.S. cases (13 involving judges), impeachment has been used only to punish serious breaches of official duty, such as abuse of power or misappropriation of funds, what George Mason, who proposed using the phrase, described as "great and dangerous offenses," "attempts to subvert the Constitution." It has not been used for purely personal matters. The impeachment remedy was intended to preserve constitutional government by removing from office an official who "subverts" it, not punishing someone who breaks the law in connection with a private matter.

The Founding Fathers' views on sex-related misconduct was made clear in an incident involving Hamilton, then Treasury secretary. Hamilton had committed adultery with a woman named Maria Reynolds. He then bribed her husband to cover it up and had Mrs. Reynolds destroy evidence of the affair. Hamilton admitted all this, but future president James Monroe and other congressmen did not consider it an impeachable offense. Even after the matter became public in 1797, Hamilton was nominated and confirmed to the second-highest post in the Army.

The Starr report makes the sweeping claim that the president has "a manifest duty to ensure that his conduct at all times complies with the law of the land." This seems plainly wrong--textually, historically and as a matter of common sense. The Constitution draws no distinction among different officeholders. Also, the Starr position would remove, for the most minor offenses, the only public official elected by the entire American people, even if it is clear that Americans are overwhelmingly opposed to this.

The charges, however, are perjury and obstruction of justice, not minor offenses. Yet, the president has not been convicted of them and may never be, for they are notoriously difficult to establish. The obstruction-of-justice charge, in particular, has always been weak, and the Lewinsky testimony released Monday, which Starr omitted from his report, completely undermines it. The "hair-splitting" engaged in by the president's lawyers is certainly bad politics, but it may be good law, as legal experts have pointed out.

Furthermore, is a polarized House of Representatives or a 100-member Senate even qualified to determine whether the criminal law has been violated? Judges trained in the law and sworn to objectivity have a hard time with these offenses. If the president is guilty of the offense charged, the Constitution expressly provides that he can be prosecuted for it upon leaving office.

The text of Article II, Section 4, lends additional support to limiting "other high crimes and misdemeanors" to serious abuses of public office. An established principle for construction of laws is the Latin maxim ejusdem generis, meaning "of the same kind." It means that where specific items are set forth in a law, followed by some form of catchall, the latter is to be read as including items "of the same kind" as the specifics.

The ejusdem generis principle seems appropriate here, since the Constitution explicitly says "other high crimes and misdemeanors" (emphasis added). That clearly limits impeachable offenses to criminal and noncriminal matters similar to treason and bribery. Though "of the same kind" does not set precise boundaries, treason and bribery obviously refer to grave breaches of official duties. Equally obviously, lying about sex does not fit that description, even if it was under oath.

This is not to say that if an official committed a serious offense not affecting official duties, but for which there is substantial evidence, he cannot be impeached. Murder and rape are examples.

It has also been suggested that Clinton's greatest impeachable offense was lying to the public. If so, then a great many past presidents should have been subjected to a similar fate. Yet, impeachment was not seriously considered, even when President Ronald Reagan falsely told the American people not once, but repeatedly, that the U.S. did not "traffic with terrorists" or trade arms for hostages, despite his approval of illegal sales of Hawk antiaircraft missiles to Iran.

An impeachable offense is indeed what Congress says it is. If the House decides to have the inquiry--and it will unless public opinion dissuades members--37 representatives of Congress will each insist on his and her place in the TV sun to question Monica S. Lewinsky, Linda R. Tripp, Vernon E. Jordan Jr., Betty Currie and the others whom independent counsel Kenneth W. Starr paraded before the grand jury. The same sorry procedure may then be repeated in a Senate trial as the presidential election approaches. All this sound and fury will probably come to nothing, for it is unlikely that the GOP will be able to muster enough Democrats to get the two-thirds necessary for conviction.*

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