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High crimes and misdemeanors[edit]

Main article: High crimes and misdemeanors

“High crimes and misdemeanors”, in the legal and common parlance of England in the 17th and 18th centuries, is corrupt activity by those who have special duties that are not shared with common persons.[17] Toward the end of the 18th century, “High crimes and misdemeanors” acquired a more technical meaning. As Blackstone says in his Commentaries: The first and principal high misdemeanor…was mal-administration of such high offices as are in public trust and employment.[18]

The phrase “high crimes and misdemeanors” was a common phrase when the U.S. Constitution was written and did not require any stringent or difficult criteria for determining guilt, but meant the opposite. The crimes are called “high crimes” because they are carried out by a person in a position of public authority, or by misusing the position of public authority they have been given. It does not mean that the crimes themselves are unusual or “higher” types of crime. The phrase was historically used to cover a very broad range of crimes. In 1974 the Senate’s Judiciary Committee’s stated that “‘High Crimes and Misdemeanors’ has traditionally been considered a ‘term of art‘, like such other constitutional phrases as ‘levying war’ and ‘due process.’ [19]

Several commentators have suggested that Congress alone may decide for itself what constitutes a “high Crime or Misdemeanor”, especially since the Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly “tried” a defendant.[20] In 1970, then-House Minority Leader Gerald R. Ford defined the criterion as he saw it: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”[21]

Historical examples[edit]

Of the 21 impeachments voted by the House:

  • No official has been charged with treason
  • Three officials have been charged with bribery
  • The remaining charges against all the other officials fall under the category of “high Crimes and Misdemeanors”.

Standard of proof[edit]

The standard of proof required for impeachment and conviction is also left to the discretion of individual representatives and senators, respectively. Defendants have argued that impeachment trials are in the nature of criminal proceedings, with convictions carrying grave consequences for the accused, and that therefore proof beyond a reasonable doubt should be the applicable standard. House Managers have argued that a lower standard would be appropriate to better serve the purpose of defending the community against abuse of power, since the defendant does not risk forfeiture of life, liberty, or property, for which the reasonable doubt standard was set.[22]

Criminal vs non-criminal activity[edit]

In drawing up articles of impeachment, the House has placed little emphasis on criminal conduct.[6] Less than one-third of the articles that the House have adopted have explicitly charged the violation of a criminal statute or used the word “criminal” or “crime” to describe the conduct alleged.[6] Officials have been impeached and removed for drunkenness, biased decision-making, or inducing parties to enter financial transactions, none of which is specifically criminal.[6] Two of the articles against President Andrew Johnson were based on rude speech that reflected badly on the office: President Johnson had made “harangues” criticizing the Congress and questioning its legislative authority, refusing to follow laws, and diverting funds allocated in an army appropriations act, each of which brought the presidency “into contempt, ridicule, and disgrace”.[23] A number of individuals have been impeached for behavior incompatible with the nature of the office they hold.[6] Some impeachments have addressed, at least in part, conduct before the individuals assumed their positions: for example, Article IV against Judge Thomas Porteous related to false statements to the FBI and Senate in connection with his nomination and confirmation to the court.[6]

Conversely, not all criminal conduct is impeachable: in 1974, the Judiciary Committee rejected a

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