High crimes and misdemeanors
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The charge of high crimes and misdemeanors covers allegations of misconduct by officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, unbecoming conduct, refusal to obey a lawful order, chronic intoxication, and tax evasion. Offenses by officials also include ordinary crimes, but perhaps with different standards of proof and punishment than for nonofficials, on the grounds that more is expected of officials by their oaths of office.
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The impeachment of the King's Chancellor, Michael de la Pole, 1st Earl of Suffolk in 1386 was the first case to use this charge. One charge under this heading alleged that de la Pole broke a promise to Parliament. He had promised to follow the advice of a committee regarding improvement of the kingdom. Another charge said that he failed to pay a ransom for the town of Ghent, and because of that the town fell to the French.
The 1450 impeachment of William de la Pole, 1st Duke of Suffolk, a descendant of Michael's, was next to allege charges under this title. He was charged with using his influence to obstruct justice, cronyism, and wasting public money. Other charges against him included acts of high treason.
Impeachment fell out of use after 1459 but Parliament revived it in the early 17th century to try the King's ministers. In 1621, Parliament impeached the King's Attorney General, Sir Henry Yelverton for high crimes and misdemeanors. The charges included failing to prosecute after starting lawsuits and using authority before it was properly his.
After the Restoration the scope of the charge grew to include negligence, and abuse of power or trust while in office. For example, charges in the impeachment of Edward Russell, 1st Earl of Orford in 1701 included many violations of trust and his position. In this case, he abused his position in the Privy Council to make profits for himself; as Treasurer of the Navy he embezzled funds; and as Admiral of the Fleet he got a commission for the pirate William Kidd.
"High crimes and misdemeanors" is a phrase from Section 4 of Article Two of the United States Constitution: "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."
"High" in the legal and common parlance of the seventeenth and eighteenth centuries of "high crimes" signifies activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons. A high crime is one that can only be done by someone in a unique position of authority, which is political in character, who does things to circumvent justice. The phrase "high crimes and misdemeanors" when used together was a common phrase at the time the U.S. Constitution was written and did not require any stringent or difficult criteria for determining guilt; it meant the opposite. The phrase was historically used to cover a very broad range of crimes. The Judiciary Committee's 1974 report "The Historical Origins of Impeachment" stated: "'High Crimes and Misdemeanors' has traditionally been considered a 'term of art', like such other constitutional phrases as 'levying war' and 'due process.' The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the framers meant when they adopted them. Chief Justice John Marshall wrote of another such phrase:
It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.
Since 1386, the English parliament had used the term “high crimes and misdemeanors” to describe one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.
Benjamin Franklin asserted that the power of impeachment and removal was necessary for those times when the Executive "rendered himself obnoxious," and the Constitution should provide for the "regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused." James Madison said, "...impeachment... was indispensable" to defend the community against "the incapacity, negligence or perfidy of the chief Magistrate." With a single executive, Madison argued, unlike a legislature whose collective nature provided security, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic."
According to the Constitutional Rights Foundation, "Prior to the Clinton investigation, the House had begun impeachment proceedings against only 17 officials – one U.S. senator, two presidents, one cabinet member, and 13 federal judges."
The process of impeaching someone in the House of Representatives and the Senate is difficult, made so to be the balance against efforts to easily remove people from office for minor reasons that could easily be determined by the standard of "high crimes and misdemeanors". It was George Mason who offered up the term "high crimes and misdemeanors" as one of the criteria to remove public officials who abuse their office. Their original intentions can be gleaned by the phrases and words that were proposed before, such as "high misdemeanor", "maladministration", or "other crime". Edmund Randolf said impeachment should be reserved for those who "misbehave". Cotesworth Pinkney said, It should be reserved "...for those who behave amiss, or betray their public trust." As can be seen from all these references to "high crimes and misdemeanors", there is no concrete definition for the term, except to allow people to remove an official from office for subjective reasons entirely.
Alexander Hamilton said, "...those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself."
The first impeachment conviction by the United States Senate was in 1804 of John Pickering, a judge of the United States District Court for the District of New Hampshire, for chronic intoxication. Federal judges have been impeached and removed from office for tax evasion, conspiracy to solicit a bribe, and making false statements to a grand jury.
Andrew Johnson was impeached on February 24, 1868, in the United U.S. House of Representatives on eleven articles of impeachment detailing his "high crimes and misdemeanors", in accordance with Article Two of the United States Constitution. The House's primary charge against Johnson was with violation of the Tenure of Office Act, passed by Congress the previous year. Specifically, he had removed Edwin M. Stanton, the Secretary of War from office and replaced him with John Schofield, although it was unclear if Johnson had violated the act as Stanton was nominated by President Lincoln and not by Johnson.
- Roland, Jon (January 19, 1999). "Meaning of High Crimes and Misdemeanors". Constitution Society. Retrieved 2012-02-26.
- "High Crimes and Misdemeanors". Constitutional Rights Foundation. Crf-usa.org. Retrieved 2017-08-28.
- "United States v Burr, 25 Fed. Cas. 1, 159 (No 14, 693) (C.C.D. Va 1807)". University of Missouri–Kansas City School of Law. Retrieved 2019-04-25.
- "Constitutional Grounds for Presidential Impeachment". The Washington Post.
- Lindorff, Dave; Olshansky, Barbara (2006). The Case for Impeachment: The Legal Argument for Removing President George W. Bush from Office. New York, NY: St. Martin's Press. p. 38. ISBN 978-0-312-36016-0. Retrieved 30 January 2017.
- Judiciary Committee 1974 Nixon Impeachment (1998-09-24). "Constitutional Grounds for Presidential Impeachment Part 2, The Historical Origins of Impeachment, The intentions of the framers". Washington Post. Retrieved February 25, 2012.
- "Special Report: Documents From the Starr Referral". Washingtonpost.com. 1998-09-24. Retrieved 2012-02-26.
- "Impeachment of federal judges". Ballotpedia. Retrieved 2016-09-12.
- The Trial of Andrew Jackson. On Articles of Impeachment exhibited by the House of Representatives Archived 2010-11-04 at the Wayback Machine. Retrieved on January 17, 2009