High crimes and misdemeanors

I’m currently reading a new release by Joan Biskupic called The Chief The Life and Turbulent Times of Chief Justice John Roberts. It has always been my practice to know the opposite side as well as they know themselves because you can’t argue effectively against them unless you know who they are and what they stand for. As some of you may know, “The Chief” details the life of John Roberts from childhood up through the present and, in reading it, the idea of Presidential impeachment raised its ugly head again.

The phrase high Crimes and Misdemeanors can be found in Section 4 of Article Two of the United States Constitution: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for and conviction of, Treason, Bribery or other high Crimes and Misdemeanors.

So, what does that mean? On the one hand, it sounds extremely serious because it specifically includes the crimes of treason, bribery and high crimes but on the other hand, sounds less serious because of the inclusion of misdemeanors. Those familiar with the law know that in today’s world, a misdemeanor is the least serious crime, almost never includes prison time upon conviction, and often doesn’t include jail time at all. So does impeachment include serious crime only which would be legal in nature or any crime or misdeed which would be political in nature?

To discover that, we have to go back in history to the earliest days of this phrase which is usually what we have to do with anything we’re researching. A well-worn phrase suggests that those who forget history are doomed to repeat it and the state of our collective intellect today suggests that millions of Americans don’t even know their history, much less knowing enough to forget it.

It turns out the impeachment of the King’s Chancellor, Michael de la Pole, 1st Earl of Suffolk in 1386 was the first case to use this charge. One charge under this heading alleged that de la Pole broke a promise to Parliament. He had promised to follow the advice of a committee regarding improvement of the kingdom. Another charge said that he failed to pay a ransom for the town of Ghent and because of that the town fell to the French.

Impeachment fell out of use after 1459 but Parliament revived it in the early 17th century to try the King’s ministers. In 1621, Parliament impeached the King’s Attorney General, Sir Henry Yelverton, for high crimes and misdemeanors. The charges included failing to prosecute after starting lawsuits and using authority before it was properly his.

Today, the generally accepted definition of high crimes and misdemeanors covers allegations of misconduct by officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, unbecoming conduct, refusal to obey a lawful order, chronic intoxication, and tax evasion. Offenses by officials also include ordinary crimes on the grounds that more is expected of officials by their oaths of office. A high crime is one that can only be done by someone in a unique position of authority, which is political in character, who does things to circumvent justice. “High crimes and misdemeanors” was a common phrase at the time the U.S. Constitution was written and did not mean any stringent or difficult criteria for determining guilt; in fact, it meant just the opposite. The phrase was historically used to cover a very broad range of crimes. And the definitive statement was issued by the United States Supreme Court which held that this phrase must be construed, not according to modern usage, but according to what the framers meant when they adopted it.

Many learned scholars and political leaders have commented on the phrase through the ages including Benjamin Franklin who asserted that the power of impeachment and removal was necessary for those times when the Chief Executive “rendered himself obnoxious:” and the Constitution should provide for the “regular punishment of the Executive when his conduct should deserve it and for his honorable acquittal when he should be unjustly accused.”

Throughout American history, it has been used very sparingly because of the implications of the charges. Prior to the Clinton investigation, the House had begun impeachment proceeding against only 17 officials – one U.S. senator, two presidents, one cabinet member and 13 federal judges.

Because of the many different interpretations of the phrase “high crimes and misdemeanors”, there is no concrete definition for the term, except to allow people to remove an official from office for subjective reasons entirely.

And that’s why the phrase is being bandied about with such regularity today. The Democrats don’t like President Trump. They don’t like what he says, what he does or how he does it and, because of that, they contend he is an embarrassment to the office and should be removed. So many think impeachment charges will be filed against him in the U.S. House of Representatives and he will be convicted there because the Democrats hold the majority.

On the other hand, to be removed from office, he has to also be convicted by the U.S. Senate which is highly unlikely because the Republicans hold a majority there. Many Democrats, including House Speaker Nancy Pelosi, therefore sees impeachment proceedings as a procedure dead on arrival because of the inability to remove the President from office and the strong anti-Democrat feelings an impeachment process would promote.

It is this columnists’ feeling that Speaker Pelosi is right in her assumption about impeachment and that no procedure against the President should be instituted. The Republicans were successful in impeaching President Clinton in the House only to see the Senate reject impeachment proceedings and the result was Clinton leaving office when his term ended with an extremely high favorable rating.

If the Democrats want to win in 2020, they should do it at the ballot box, not in the House or the Senate because that will reflect the dictate of the electorate