What is an impeachable offense?

Applicable constitutional provisions:

Article 1, §2. “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.”

Article 1, §3. “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Article 2, §4. “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.”

Discussion: The question in impeachment cases is “what constitutes high crimes and misdemeanors?”

Britannica says accurately, I believe: “Felony and misdemeanour, in Anglo-American law, classification of criminal offenses according to the seriousness of the crime.

“U.S. jurisdictions generally distinguish between felonies and misdemeanours. A class of minor offenses that may be described as petty offenses or quasi-crimes is also recognized. These last offenses are created by local ordinance, and the requirement of trial by jury does not apply.”

“In U.S. law, the classification of a crime as a felony or misdemeanour is ordinarily determined by the penalties attached to the offense. A felony is typically defined as a crime punishable by a term of imprisonment of not less than one year. Misdemeanours are often defined as offenses punishable only by fines or by short terms of imprisonment in local jails. A consequence of commission or conviction of a felony rather than a misdemeanour is that the offender may lose some of his civil rights.” /1/

Many, including the late, great, and mostly-ignored Professor Raoul Berger /2/ have said that the purpose of the impeachment clauses to set out an apparatus of regeneration to protect our constitution. That may be true, and I have great confidence in the Professor, but not the benefit of his reasoning, so for now I must pass on that assertion.

Justice Story, on the other hand, may be found on the internet. In his Commentaries on the Constitution, he takes a broad view of what are impeachable offenses and concludes that in addition to treason and bribery, an official can be impeached for violating the common law.

“The next inquiry is, what are impeachable offences? They are “treason, bribery, or other high crimes and misdemeanours.” For the definition of treason, resort may be had to the constitution itself; but for the definition of bribery, resort is naturally and necessarily had to the common law; for that, as the common basis of our jurisprudence, can alone furnish the proper exposition of the nature and limits of this offence. The only practical question is, what are to be deemed high crimes and misdemeanours? Now, neither the constitution, nor any statute of the United States has in any manner defined any crimes, except treason and bribery, to be high crimes and misdemeanours, and as such impeachable. In what manner, then, are they to be ascertained? Is the silence of the statute book to be deemed conclusive in favour of the party, until congress have made a legislative declaration and enumeration of the offences, which shall be deemed high crimes and misdemeanours? If so, then, as has been truly remarked, the power of impeachment, except as to the two expressed cases, is a complete nullity; and the party is wholly [un]punishable, however enormous may be his corruption or criminality. /3/

He continues:

“Resort, then, must be had either to parliamentary practice, and the common law, in order to ascertain, what are high crimes and misdemeanours; or the whole subject must be left to the arbitrary discretion of the senate, for the time being. The latter is so incompatible with the genius of our institutions, that no lawyer or statesman would be inclined to countenance so absolute a despotism of opinion and practice, which might make that a crime at one time, or in one person, which would be deemed innocent at another time, or in another person. The only safe guide in such cases must be the common law, which is the guardian at once of private rights and public liberties. And however much it may fall in with the political theories of certain statesmen and jurists, to deny the existence of a common law belonging to, and applicable to the nation in ordinary cases, no one has as yet been bold enough to assert, that the power of impeachment is limited to offences positively defined in the statute book of the Union, as impeachable high crimes and misdemeanours.” /4/

Justice Story’s view also might be right but in incorporating common law into the law of impeachment may lead to the perhaps unsolvable mystery, “what common law”. Justice Story believed there was federal common law, /5/ but Jefferson and others disagreed. /6/ The question is complicated; fortunately, we need not reach it here.

The reason we need not reach Justice Story’s common law question is the existence of this rather obscure federal statute, 18 U.S.C §242, entitled, “Deprivation of rights under color of law”. The statute declares willful constitutional violations by U.S. and other officials a crime:

“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States .  .  . shall be fined under this title or imprisoned not more than one year, or both.”

The statute partly answers the problem of identifying what “other high crimes and misdemeanors” may mean in relation to purely constitutional violations that deprives persons of rights, for it criminalizes them if willful.

But what about the case in which there is a generalized violation of the Constitution? “Mere usurpation”, so to say? That is, suppose there is no one who suffers specific and provable damage from the violation? May the violators, say Congress and the President, be impeached? I don’t think so, but confess to being confused by the question.

Do any readers have the answer?

For a view that “usurpation” is impeachable, see http://www.politico.com/blogs/bensmith/0411/GOP_lawyer_circulates_Obama_impeachment_articles.html

Endnotes:

/1/ http://www.britannica.com/EBchecked/topic/204029/felony-and-misdemeanour

/2/ I don’t have any present access to Prof. Berger’s book, but in a Harpers Review article the author summarized the Professor’s view as: “The Founders feared an excess of power in executive hands; they had just thrown off the shackles of one tyrant, George III, and were not minded to submit to another. Hence, they provided impeachment as an essential restraint against arbitrary one-man rule. The wisdom of the Founders has been abundantly confirmed by recent events. The time has come to regard impeachment, not as a clumsy, outworn apparatus, but rather as an instrument of regeneration for protection of our liberties and our constitutional system.” http://harpers.org/archive/2008/02/hbc-90002302. Part of his book is found at http://tinyurl.com/6d7yvov.

/3/ The Founders’ Constitution @ http://press-pubs.uchicago.edu/founders/documents/a1_2_5s18.html

/4/ Id. at § 795.

/5/ See Justice Story’s opinion in Swift v. Tyson, 41 U.S. 1 (1842) overruled in Erie RR v. Tompkins, 304 U.S. 64 (1938). Swift is found @ http://laws.findlaw.com/us/41/1.html; Erie RR @ http://laws.findlaw.com/us/304/64.html.

/6/ For Jefferson’s view, http://earlyamerica.com/review/spring97/blackstone.html, “Blackstone In America: Lectures by An English Lawyer Become The Blueprint for a New Nation’s Laws and Leaders”