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Neither the federal nor any state constitution gives a list or a precise description of what offenses are impeachable. The impeachment process, intended to be an extraordinary remedy, involves both quasijudicial and political judgments. Thus the grounds for impeachment are not susceptible to more than very general descriptions – such as the U.S. Constitution’s “high crimes and misdemeanors.” -Impeachable Offenses Under American Law, 1997 Whether an official’s conduct warrants removal from office is in part a political – though not necessarily a partisan – judgment. For that reason, federal and state constitutions consign that judgment to the legislature, the branch of government most closely linked to the voters. An impeachable offense may, but need not, be an indictable crime. It may instead be a serious abuse of power, official misconduct, or an attempt to subvert the Constitution. But an impeachable offense should be related to the official’s fitness to hold public office, rather than to a mere personal peccadillo or private matter. Illinois General Assembly Research Response, 1997 The removal of a public official from the office through the process of impeachment is a grave matter, as it represents a repeal of the will of the people who have elected an individual to an office of public trust. Because it is a reversal of the inherent power of the people in a democratic society to choose those who govern, it is a power rarely exercised, and one which has fortunately been required in few instances in Kentucky’s history. Impeachment in Kentucky, 1991 The great majority of commentators who have examined closely the likely meaning of the constitutional phrase ‘other high Crimes and Misdemeanors,’ including Justice James Wilson, Justice Joseph Story, Chief Justice Charles Evans Hughes, Justice Arthur Bestor, Paul Fenton, Peter Hoffer and N.E.H. Hull, John Feerick, and John Labovitz (a former staff member of the House Judiciary Committee investigating President Nixon), have reached the same conclusion: The phrase ‘other high Crimes and Misdemeanors’ consists of technical terms of art referring to ‘political crimes.’ They also have agreed that ‘political crimes’ had a special meaning in the eighteenth century; ‘political crimes’ cons isted of the kinds of abuses of power or injuries to the Republic that only could be committed by public officials by virtue of the public offices or privileges that they held. Although the concept ‘political crimes’ uses the term ‘crimes,’ the phrase did not necessarily include all indictable offenses. Nor were all indicatable offenses considered ‘political crimes.’ Michael J. Gerhardt, BACKGROUND: The Lessons of Impeachment History, 67 Geo. Wash. L. Rev. 603, 609-610. Moreover, the majority of examples given throughout the Convention debates about the scope of impeachable offenses, such as Madison’s preference for the phrase ‘other high Crimes and Misdemeanors’ because it encompassed attempts to subvert the Constitution, confirm that impeachable offenses primarily consisted of abuses of power that injured the State (and thus were not necessarily limited to indictable offenses). Neither the debates nor the relevant constitutional language
eventually adopted, however, identifies the specific offenses that constitute impeachable abuses against the State. Michael J. Gerhardt, BACKGROUND: The Lessons of Impeachment History, 67 Geo. Wash. L. Rev. 603, 611 (1999). The Constitution sates that ‘the President, Vice President and all civil Officers of the United St ates, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.’ To understand the meaning of ‘high Crimes and Misdemeanors,’ we must understand the purpose of the clause. Like other constitutional processes, impeachment responds to a particular problem of governance – in this case, how to end the tenure of an officer whose conduct has seriously undermined his fitness for continued service and thus poses an unacceptable risk of injury to the Republic. This purpose is evident from the structure of this provision and other provisions relating to impeachment. First, the only legal consequences that flow from impeachment proceedings – removal from office and potential disqualification from future office – make little sense unless impeachment is aimed at removing unfit officials. Impeachment permits no penal sanctions and contemplates no consequences short of removal. The consequences of impeachment and conviction go just far enough, and no further than, to remove the threat posed to the Republic by an unfit official. John O. McGinnis, BACKGROUND: Impeachment: The Structural Understanding, 67 Geo. Wash. L. Rev. 650 (1999) The Framers were much concerned about the legitimacy of the impeachment process. They believed that, if impeachment is to acquire validity, the grounds must be accepted by a broad public as persuasive. The charges must be so grave and the evidence for them so weighty that members of both parties agree on the necessity of considering the drastic remedy of removal from office.” Arthur M. Schlesinger, Jr., BACKGROUND: Reflections on Impeachment, 67 Geo. Wash. L. Rev. 93, 695 (1999) The American states retained impeachment as a check against the potential corruption of public officials. In republics, as well as in monarchies, officers could abuse the public trust. The framers of state constitutions had doubts about relying solely on electoral protections, particularly because such democratic checks did not provide an adequate safeguard for curbing abuses between elections. While state constitutions limited impeachment of any official. This model of impeachment conformed to republican notions of limited and separated powers: Governors could appoint officials, and legislatures could remove them. The division of authority protected against tyranny. In addition to providing a means of dislodging particular, corrupt officials, impeachment also had a larger symbolic value, representing a public commitment to honest government. After debating various possible impeachment arrangements, the delegates at the Constitutional Convention followed state practice and adopted language allowing the impeachment of all government officers. Michael J. Broyde & Robert A. Schapiro, Impeachment and Accountability: the Case of the First Lady, 15 Const. Commentary 479, 485-486 (1998) The impeachment process provides a means of monitoring and checking misconduct by such officials through the use of a legislative forum. The mechanism is a cumbersome one which takes time away from other legislative business. Yet its very cumbersomeness might be viewed as necessary to minimize the chance that so serious a course would be engaged in lightly; in this light, its complex and
somewhat unwieldy nature could be considered an attempt to deter unwarranted legislative intrusions into the business and personnel of the other two branches. The impeachment process might be seen as a constitutional effort to balance these two countervailing forces. Elizabeth B. Bazan, Congressional Research Service, Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice 23 (2010). First, on the issue of double jeopardy, Gessel ruled that while many of the charges within the articles of impeachment did correspond to Hastings’ felony trial, his claim was based ‘on a fundamental misapprehension.’ Hastings’ Senate trial must be viewed as ‘sui generis.’ The U.S. Constitution specifically differentiates between impeachment proceedings and criminal proceedings. For example, the impeached official has no right to a jury trial. Also, the President cannot pardon a conviction arising out of an impeachment. The Framers realized that an impeachment trial would be ‘fundamentally political, which seems to indicate that impartiality – however much it has been present and is to be desired – is not guaranteed.’ Unlike a criminal proceeding, the federal rules of evidence are inapplicable in an impeachment proceeding. The Constitution does not require a unanimous vote when making its judgment. Also, the Framers consciously deviated from the English political system by limiting the type of punishment imposed upon conviction – removal from office and future disqualification. Joseph R. Thysell, Ph.D., Senate Rule Xi and the Impeachment of Federal Judges, 29 S.U. L. Rev. 77, 85 (2001) The Framer’s foresaw controversies in which ‘an officer … had rendered himself justly criminal in the eyes of a majority.’ The Framers created a process in which such qu estions of legitimacy could be resolved in an open and deliberative fashion. Alexander Hamilton described impeachment as “a method of NATIONAL INQUEST into the conduct of public men.” It is a public process to reach a public determination about the conduct of public officials. As James Iredell noted, it is a process guaranteed that ‘if a man be villain, and willfully abuse his trust, he is to be held up as a public offender.” Jonathan Turley. Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke L.J. 1, 137-138 (1999). Impeachment is intended for occasional and extraordinary cases where a superior power is acting for the whole people is put into operation to protect their rights and rescue their liberties from violations. Representative Barbara Jordan, Speech on Impeachment, Address before the House Judiciary Committee (July 25, 1974) Impeachment is a constitutional remedy to address serious offenses against the system of government. It is the first step in a remedial process – that of removal from public office and possible disqualification from holding further office. The purpose of impeachment is not punishment; rather, its function is primarily to maintain constitutional government. Deschler Ch 14 App. pp 726-728; 105-2, Dec. 19, 1998, pp 28107-9. Wm. Holmes Brown & Charles W. Johnson. House Practice: A Guide to Rules, House Precedents, and Procedures of the House, 108 th Cong. 1st Sess. Ch. 27, 587 (2003) An impeachment trial, however, stands wholly separate from a criminal proceeding. Neither impeachment by the House nor conviction by the Senate precludes criminal indictment or conviction on charges related to crimes for which a [public officer] was impeached. As a political process,
impeachment and conviction as delineated in the Constitution seek to protect the integrity of American political and judicial institutions. To this point, House managers in a 1989 impeachment trial argued, Criminal proceedings and impeachment serve fundamentally different purposes: the former is designed to punish an offender and seek retribution, while the latter is the first step in a remedial process. The purpose of impeachment is not personal punishment, but rather to maintain constitutional government through removal of unfit officials from positions of public trust. Congressional Research Service, R 41172, The Role of the Senate in Judicial Impeachment Proceedings: Procedure, Practice, and Data 3 (April 9, 20210).