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Constitutional Grounds for Presidential Impeachment:
III. The Criminality Issue

The following is from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.

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The phrase "high Crimes and Misdemeanors" may connote "criminality" to some. This likely is the predicate for some of the contentions that only an indictable crime can constitute impeachable conduct. Other advocates of an indictable offense requirement would establish a criminal standard of impeachable conduct because that standard is definite, can be known in advance andd refelects a contemporary legal view of what conduct should be punished. A requirement of criminality would require resort to familiar criminal laws and concepts to serve as standards i n the impeachment process. Furthermore, this would pose problems concerning the applicability of standards of proof and the like pertaining to the trial of crimes.1

The central issue raised by these concerns is whether requiring an indictable offense is an essential element of impeachable conduct is consistent with the purposes and intent of the framers in establishing the impeachment power and in setting a constitutional standard for the exercise of that power. This issue must be considered in light of the historical evidence of the framers' intent.2 It is also useful to consider whether the purposes of impeachment and criminal laware such that indictable offenses can, consistent with the Constitution, be an essential element of grounds for impeachment. The impeachment of a President must occur only for reasons at least as pressing as those needs of government that give rise to the creation of criminal offenses. But this does not mean that the various elements of proof, defenses, and other substantive concepts surrounding an indictable offense control the impeachment process. Nor does it mean that state or federal criminal codes are necessarily the place to turn to provide a standard under the United States Constitution. Impeachment is a constitutional remedy. The framers intended that the impeachment language they employed should reflect the grave misconduct that so injures or abuses our constitutional institutions and form of government as to justify impeachment.

This view is support by the historical evidence of the constitutional meaning of the words "high Crimes and Misdemeanors." That evidence is set out above.3 It establishes that the phrase "high Crimes and Misdemeanors"-- which over a period of centuries has evolved into the English standard of impeachable conduct-- has a special historical meaning different from the ordinary meaning of the terms "crimes" and "misdemeanors."4 "High Misdemeanors" referred to a category of offenses that subverted the system of government. Since the fourteenth century the phrase "high Crimes and Misdemeanors" had been used in English impeachment cases to charge officials with a wide range of criminal and non-criminal offenses against the institutions and fundamental principles of English government.5

There is evidence that the framers were aware of the special, non-criminal meaning fo the phrase "high Crimes and Misdemeanors" in the English law of impeachment.6 Not only did Hamilton acknowledge Great Britain as "the model from which [impeachment] has been borrowed," but George Mason referred in the debates to the impeachment of Warren Hastings, then pending before Parliament. Indeed, Mason, who proposed the phrase "high Crimes and Misdemeanors," expressly stated his intent to encompass "[a]ttempts to subvert the Constitution."7

The published records of the state ratifying conventions do not reveal an intention to limit the grounds of impeachment to criminal offenses.8 James Iredell said in the North Carolina debates on ratification:

..., the person convicted is further liable to a trial at common law, and may receive such common law punishment as belongs to a description of such offences if it be punishable by law.9 Likewise, George Nicholas of Virginia distinguished disqualification to hold office from conviction for criminal conduct: If [the President] deviates from his duty, he is reponsible to his constituents... He will be absolutely disqualified to hold any place of profit, honor, or trust, and liable to further punishment if he has committed such high crimes as are punishable at common law.10

The post convention statements of and writings of Alexander Hamilton, James Wilson, and James Madison-- each a participant in the Consitituional Convention-- show that they regarded impeachment as an approporiate device to deal with offenses against constitutional government by those who hold civil office, and not a device limited to criminal offenses.11 Hamilton, in discussing the advantages of a single rather than a plural executive, explained that a single executive gave the people "the opportunity of discovering with facility and clearness the misconduct of the persson they trust, in order either to their removal from office, or to their actual punishment in cases which admit of it."12 Hamilton further wrote, "Man, in public trust, will much oftener acct in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment."13

The American experience with impeachment, which is summarized above, reflects the principle that impeachable conduct need not be criminal. Of the thirteen impeachments voted by the House since 1789, at least ten involved one or more allegations that did not charge a violation of criminal law.14

Impeachment and the criminal law serve fundamentally different purposes. Impeachment is the first step in a remedial process-- removal from office and possible disqualification from holding future office. The purpose of impeachment is not personal punishment;15 its function is primarily to maintain constitutional government. Furthermore, the Constitution itself provides that impeachment is no substitute for the ordinary process of criminal law since its specifies that impeachment does not immunize the officer from criminal liability for this wrongdoing.16

The general applicability of the criminal law also makes it inappropriate as the standard for a process applicable to a highly specific situation such as removal of a President. The criminal law sets a general standard of conduct that all must follow. It does not address itself to the abuses of presidential power. In an impeachment proceeding a President is called to account for abusing powers that only a President possesses.

Other characteristics of the criminal law make criminality inappropriate as an essential element of impeachable conduct. While the failure to act may be a crime, the traditional focus of criminal law is prohibitory. Impeachable conduct, on the other hand, may include the serious failure to discharge the affirmative duties imposed on the President by the Constitution. Unlike a criminal case, the cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert consitutional government.

To confine impeachable conduct to indictable offenses may well be to set a standard so restrictive as not to reach conduct that might adversely affect the system of government. Some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law.

If criminality is to be the basic element of impeachable conduct, what is the standard of criminal conduct to be? Is it to be the criminality as known to the common law, or as divined from the Federal Criminal Code, or from an amalgam of State criminal statutes? If one is to turn to State statutes, then which of those of the States is to obtain? If the present Federal Criminal Code is to be the standard, then which of its provisions are to apply? If there is to be new Federal legislation to define the criminal standard, thenm presumably both the Senate and the Presdient will take part in fixing that standard. How is this to be accomplished without encroachment upon the constitutional provision that "the sole power" of impeachment is vested in the House of Representatives?

A requirement of criminality would be incompatible with the intent of the framers to provide a mechanism broad enough to maintain the integrity of constitutional government. Impeachment is a constitutional safety valve; to fulfill this function, it must be flexible enough to cope with exigencies not now foreseeable. Copngress has never undertaken to define impeachable offenses in the criminal code. Even a respecting grounds for impeachment, the federal statute establishing the criminal offense for civil officers generally was enacted over seventy-five years after the Constitutional Convention.17

In sum, to limit impeachable conduct to criminal offenses would be incompatible with the evidence concerning the constitutional meaning of the phrase "high Crimes and Misdemeanors" and would frustrate the purpose that the framers intended for impeachment. State and federal criminal laws are not written in order to preserve the nation against serious abuse of the presidential office. But this is the purpose of the consitutional provision for the impeachment of a President and that purpose gives meaning to "high Crimes and Misdemeanors."

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