Frank O. Bowman III writes:

“High crimes and misdemeanors” is surely the most troublesome, misleading phrase in the U.S. Constitution. Taken at face value, the words seem to say that impeachable conduct is limited to “crimes”—offenses defined by criminal statutes and punishable in criminal courts. That impression is reinforced by the fact that the phrase follows the obviously criminal “treason” and “bribery” in Article II’s list of the kinds of conduct for which the “President, Vice President and all civil officers” may be impeached.

But this is not, in fact, what the Constitution requires. “High crimes and misdemeanors” is not, and has never been, limited to indictable criminality. Nonetheless, despite centuries of learning on the point, there the phrase sits, begging to be taken at its delusory face value.

Accordingly, in nearly every significant American impeachment since 1788, the defenders of the impeached official—whether president, judge, senator, or Cabinet officer—have argued that their man can’t properly be removed, because what he did wasn’t actually a statutory crime. This process has already begun for President Donald Trump. Among the first things the president’s personal lawyer Jay Sekulow said in a September 27, 2019, CBS interview about the Ukraine affair was that the phone call between Trump and Ukrainian President Volodymyr Zelensky involved “no violation of law, rule, regulation, or statute.”

Even some of Trump’s critics entertain the same erroneous notion. The New York Times columnist Bret Stephens has repeatedly intimated that, to him, “high crimes and misdemeanors” requires ordinary criminality. He recently wrote, “I struggle to see exactly what criminal statute Trump violated with the [Ukraine] call.”

Those most eager to impeach this president may know their Constitution better, but they recognize that crimes are just easier to explain than old Anglo-American legal jargon. So some are tempted to scour the criminal code for a subsection into which one or the other of Trump’s misadventures can be wedged. The most recent example is the vociferous but ultimately pointless argument over whether opposition research—dirt—on a political opponent is a “thing of value” for purposes of federal election laws.

There are two strong arguments against the idea that the phrase requires criminal behavior: a historical one and a practical one. The history of the phrase “high crimes and misdemeanors” and of how it entered our Constitution establishes beyond serious dispute that it extends far beyond mere criminal conduct. The practical reasoning is in some ways more important: A standard that permitted the removal of presidents only for indictable crimes would leave the nation defenseless against the most dangerous kinds of presidential behavior. [Continue reading…]