As a constitutional lawyer, I am disappointed by the lack of understanding on the part of pundits and public leaders regarding Article II, Section 4, of the Constitution: “The President ... shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.” The meaning of “high Crimes and Misdemeanors” can be gleaned by examining the proceedings of the Constitutional Convention of 1787.
On June 1, 1787, Gunning Bedford argued that the president could be impeached for “misfeasance.” The next day delegates discussed removal of the president for “impeachment and conviction of malpractice or neglect of duty.” On June 18, Alexander Hamilton agreed that the president could be impeached for “malpractice or neglect of duty,” and the following day, the delegates voted to accept this mere negligence standard.
Six weeks later, a vigorous discussion ensued among delegates regarding impeachment. James Madison believed that elections were insufficient to guard against “negligence or perfidy” and feared the president “might pervert his administration into a scheme of peculation (misuse of public funds) or oppression (and) might betray his trust to foreign powers. ... (A Presidency) administered by a single man (was susceptible to) corruption (that) might be fatal to the Republic.” Elbridge Gerry added, “A good (President) will not fear (impeachment, and a) bad one ought to be kept in fear of (impeachment).” Gerry trusted “the maxim would never be adopted that the (President) could do no wrong.” Edmund Randolph opined, “The Executive will have great opportunities of abusing his power; particularly in time of war when the military force (and) the public money will be in his hands.” Gouverneur Morris feared the president might “be bribed (or paid) by a (foreign) interest” and, therefore, should be removed for “treachery” or “corruption.” The delegates then adopted the “removable on impeachment and conviction of malpractice or neglect of duty” standard by a decisive vote of 8-2.
On Aug. 27, the Committee of Detail inexplicably offered a new standard for impeachment of the president: “treason, bribery, or corruption.” The following day, the delegates distinguished between criminal trials, which require juries, and impeachment proceedings under which the House would be given power to recommend articles of impeachment and the Senate, not the Supreme Court, would “try all impeachments.”
Days later, Col. George Mason argued, “Treason as defined in the Constitution will not reach many great and dangerous offences.” He moved to add “mal-administration” to the list of impeachable offenses. “Maladministration” referred to William Blackstone’s Commentaries on the Laws of England, which was widely embraced by the delegates. Blackstone defined “high misdemeanors” as “mal-administration” or abuse of office or trust by a public official. Blackstone also distinguished between a criminal trial and impeachment proceedings.
James Madison, who firmly believed a president breached his trust to the American people by exercising his power in foreign relations or other matters for personal or political gain, preferred that impeachment be tried by the Supreme Court and expressed his lingering concern that the Senate might convict a president for purely political reasons. The language “high crimes and misdemeanors” was ultimately adopted as the impeachment standard in Article II. This language captured the idea of maladministration using the technical language of the time to avoid too low or too high of a bar.
As Madison feared, partisans on both sides of the aisle have politicized the impeachment process. Many members of Congress fear offending their respective bases more than they respect their oath of office to support and defend the Constitution. Many Democrats have declared the president guilty before they have definitive evidence to support the charge that the president betrayed the public trust by seeking material from a foreign power to use against a named opponent in the upcoming presidential election. Republicans, in turn, have chosen loyalty to the president and their base over their constitutional obligation to pursue the whole truth.
The president and members of the executive branch are failing to live up to their oath to put the Constitution above personal gain by ignoring the clear intent of an impeachment standard designed to determine whether there was a breach of public trust by the president. There is evidence from the transcript of President Trump’s call with the president of Ukraine and related materials that the president may have used the power of his office to obtain a political favor from a foreign government, which is compounded by the president’s personal attorney being involved in unprecedented “diplomacy” in this sensitive matter.
Americans deserve the truth. This is no time for partisan theatrics — it is time to put one’s duty to defend the Constitution, as intended by the framers, above political gain.
Rodney K. Smith is the director of the Center for Constitutional Studies at Utah Valley University. Research for this essay was done at quillproject.net, a joint project between Pembroke College (Oxford) and the Center for Constitutional Studies.