High Crimes and Misdemeanors

“Washington, DC is 12 square miles bordered by reality” –   Andrew Johnson, 1st U.S. President to be impeached.

The latest round of impeachment proceedings have included a lot of talk about what the Founding Fathers intended when they wrote this contingency into the Constitution. Much of that talk is solely to enhance the credibility of the Congressmen or media pundits pleading their case in front of a camera. These speakers all purport to channel what the early statesmen of our country meant by a single phrase in the Constitution – “high crimes and misdemeanors”. Instead of appropriating just that one phrase when they dig out their pocket copies of the Constitution, they should read the whole thing. It only takes about ten minutes.

The first thing that hits you when you read the entirety of the Constitution is how short and direct it is. There are no filler words or flowery language. It not only lays out how the federal government will operate, but how very limited its size and power were meant to be.¹ For over one hundred years the federal government remained relatively small as was originally intended. However, after World War I and the Great Depression, politicians expanded the federal bureaucracy far beyond anything envisioned by any founder.

This expansion was not justified by a “plain” reading of the Constitution but evolved out of a limitless chain of inferred meanings that could be manipulated to align with almost any ideology. It became easy for a politician or judge to confidently proclaim that a law or judicial interpretation was in accordance with the Constitution by creating a long dubious linkage of anemic deductions. Witness how the 1^st paragraph of the 14^th amendment, written in the aftermath of the Civil War to ensure the rights of freed slaves, was tortured into justifying a woman’s “right” to have an abortion. While this “right” was supposedly derived from the Constitution, it bears no resemblance to any actual words or concepts in the Constitution or its Amendments.

This same exact thing has happened with the meaning of the phrase “high crimes and misdemeanors”. These words, taken out of the context of the time in which they were written, and attached to a clever but specious chain of logic, are then declared to mean almost anything a politician wants them to mean. There is so much ideology attached to these words at present, it is impossible to elicit a consensus definition (and we shall not attempt to do so here). Even “expert” historians are not immune to their own personal biases on this subject and skew their definitions to fit (or not) the current Presidential “crime” being considered. This was on full display on December 4^th, 2019 when Constitutional experts from academia testified during the Trump impeachment hearings and voiced wildly different points of view. We must instead look to other elements of context from the historical record.

In the first 208 years of our country’s existence, from 1789 – 1997, only one out of 41 Presidents was impeached (Andrew Johnson, in 1868 for flagrantly breaking a law passed by Congress). During the next 21 years, from 1998 up to the present, 2 out of the last 4 Presidents have been impeached. In both these modern-day occurrences, the main “crime” upon which each case rested occurred as a result of the impeachment proceedings themselves. In their aggressive defense against the original accusations against them, both Clinton and Trump were accused of abusing the power of the Presidency to obstruct the impeachment process. These contingent crimes, which separately became articles of impeachment against each man, would arguably never have occurred if the impeachment process hadn’t been started in the first place.

The personal behavior of both Bill Clinton and Donald Trump so enraged their opponents that removing them from office was deemed absolutely necessary at any cost. But while each man crossed the line of Presidential “decency” in the eyes of the majority party in Congress, neither of them had committed an offense that could reasonably warrant removal from office in the original context of the Constitution. Everyone, including their accusers, knew that each man’s transgressions were not egregious enough to mobilize full bipartisan support against them. To create a sound legal basis for impeachment, Congress needed to lay a trap and goad each man into a process crime. In the end, a variation of the very malleable and impressive sounding “obstruction of judicial process” charge became the core impeachable offense in each instance. However legally prosecutable this offense may be, we are certain it was not a “removal from office” scenario envisioned by the founders. Impeachment was not included in the Constitution to green light a plot in which Congress ensnares a President in a legal booby trap.

These entrapment schemes only worked because the subsequent defensive actions of each President could be readily translated into the legal language of “obstruction”. In Clinton’s case, he lied under oath. In Trump’s case he refused to comply with subpoenas ordering his advisers to testify. Even so, any objective assessment of either scenario shows Congress disguising its true goal of carrying out a vendetta against a President they reviled. Congress used impeachment to berate and excoriate a President for distasteful behavior. This is inconsistent with the Founder’s intent to reserve impeachment as the most severe remedy for an atrocious crime. Should we expect Presidential impeachments to now happen regularly since they can be personality-driven, sans any real “removable” offense?

Another way to look at it is to view the Clinton case as an aberration and a clear misuse of impeachment power by the Republican Congress. When Trump’s equally distasteful personal behavior invited an opportunity for a Democrat Congress to even the impeachment score, they took it. With a weird kind of balance now restored in the impeachment universe, each side could potentially go back to using impeachment as it was originally intended. This is the most positive interpretation of what has just occurred. However, that scenario requires the current House Democrats to throttle down, having now accomplished their tit-for-tat impeachment goal. Could this be part (or all) of the reason why the House Speaker has not forwarded the Trump impeachment articles to the Senate? Recent headlines suggesting there will be more articles of impeachment against President Trump, or even additional impeachment votes during a second Trump term, don’t presage a retreat. They herald the Democrats taking things too far once again.²

If additional impeachment transactions do occur, they would instantly invalidate our theory that the only reason for the Trump impeachment was to settle the Clinton score. With no hope of a conviction in the Senate and no bipartisan support in the House, these actions would be just another unsophisticated attack on the President by members of the political opposition. The notion of a thoughtful, statesman-like consideration of the circumstances will have been blasted from existence. Impeachment was envisioned by the Founders as the sober last resort of a bipartisan coalition of Congress to remove a President who is truly beyond the pale. Instead, the process has now become a vehicle for elevating a certain Presidential style, manner and tone to the level of a national crisis.

We must reiterate that Donald Trump and his personality were both voted into office because that is what the people wanted. There was nothing hidden behind a facade of campaign promises/rhetoric (as is typical of many candidates). No one was tricked or deceived into voting for him. His behavior, comportment, and habits as President are the same as they were during his campaign in 2016. A similar statement can be made about Bill Clinton in his campaign back in 1992 (his womanizing ways were well known at the time).

Above all else, impeachment was never meant to “undo” the voter’s choice, no matter how distasteful that choice appears to others. If a President truly crosses the line of “high crimes and misdemeanors” it will be clear and obvious to all, not just to those who live in continual opposition.

¹This was the main topic of debate during the Constitutional convention in 1787. As a result, the Constitution was written to describe only the powers the federal government possessed, not powers it didn’t possess. Any aspect of governance left unstated in the Constitution was assumed to be in the purview of State and local governments. It was for this reason that James Madison and others did not believe a Bill of Rights was even necessary. Citizens retained all imaginable privileges not specifically limited by the Constitution. In fact, the federal government was so restricted in scope that for a very long time it was only in session for a short period during each year.

²Still fresh in our minds is the Democrat overreach that occurred in the confirmation hearings for Justice Bret Kavanaugh. Specifically, Senator Feinstein improperly withheld evidence (the original letter from Christine Ford) from Judiciary Committee Chairman Charles Grassley. Instead, she used it as a political flamethrower with which she torched the confirmation proceedings and incinerated Kavanaugh’s hard-won reputation. Feinstein took things way too far and has never been held accountable for her actions.