What Exactly Are High Crimes and Misdemeanors?

In 1787, a few days before they finished writing the Constitution, the men working on it stumbled on an unresolved question: Under what circumstances should Congress be able to impeach the President? No doubt tired of parsing legalisms after months of work, they took only about five minutes to dispense with the constitutional crisis. They had already decided that treason and bribery were no-brainers–definitely grounds for impeachment–but George Mason of Virginia said he was concerned that those two crimes didn’t capture “many great and dangerous offenses.” So he suggested adding “maladministration” to the list of impeachable no-nos. When others complained that the term was too vague, he offered this legal delicacy: “other high crimes and misdemeanors.”

It was a brilliant little piece of 18th century spin. The fusty phrase carried the weight of history even back then: it had been around since at least 1386, when Members of Parliament used it to describe the financial shenanigans of one Michael de la Pool. The phrase seemed to combine the right measure of breadth and gravity–not just any crimes, but the “high” ones. A quick vote was taken, the phrase was accepted, and now the President’s fate rests on it.

The 18th century may have been a time when English common law was studied and revered, but at the end of the 20th, we’re more familiar with TV’s Judge Judy than with James Madison. “High crimes and misdemeanors” sounds like it could mean anything, from murder to jaywalking. And here’s the rub–Mason’s dirty little secret–it could mean anything. The Constitution gives the House of Representatives sole authority to decide what constitutes grounds for impeachment. That’s why President Andrew Johnson was impeached in 1868, when a nasty political dispute got out of hand. (The Senate failed by a vote to convict him, and he stayed in office.)

Impeachment, by the way, is voted by the House–think of it as an indictment–but removal (conviction) is decided after a Senate trial. The framers were clear that impeachment is a solemn matter; to its credit, the House has generally taken the responsibility seriously. It has voted to impeach only one President and 15 other men–13 judges; President Ulysses Grant’s Secretary of War; and Senator William Blount of Tennessee, who tried in the 1790s to get Indian tribes to invade Florida and Louisiana (then owned by Spain), kill a bunch of people and force the survivors’ allegiance to Britain. Inciting transcontinental war–now that sounds like an impeachable offense. Alas, it’s a long way from President Clinton’s alleged lies about Monica.

Shouldn’t high crimes and misdemeanors at least be crimes in the criminal code? Once again, no: impeachment is a political, not a criminal, process, designed to remove officials who abuse their powers. Law professors use an example: if a Senator moves to the Bahamas and refuses to return, she isn’t committing a crime, but she is abusing her office. Conversely, if she shoplifts from the Georgetown Gap, we probably shouldn’t impeach her for such a petty crime. Says Harvard law professor Laurence Tribe: “The criminal process typically serves [to impose] punishment. Impeachment is a prophylactic device, to deter certain behavior and cleanse the body politic.”

Over the next few days, the debate over the Lewinsky mess will narrow to this difficult question: Did Clinton behave so badly that he abused the power of his office? History offers little guidance, but one of the most recent impeachments doesn’t bode well for him: U.S. District Judge Walter Nixon of Mississippi was impeached and removed in 1989. He had allegedly accepted a bribe, but that’s not what got him impeached. Lying to the grand jury did.

–By John Cloud