What Are High Crimes and Misdemeanors

High crimes and misdemeanors is the Constitutional standard the Congress must use to decide whether or not to impeach and remove a sitting President. It’s always been difficult to understand Constitutional law because it’s written in old-fashioned language and is often intentionally vague. That’s why my teaching assistant review sessions, for the late great civil rights lawyer Haywood Burns, attracted hundreds of students and packed the auditorium at CUNY Law School. It was hard enough to understand these concepts back in the 1990’s, but now we live in the age of “fake news” and it’s becoming increasingly difficult to know who to believe. The discussions we see on TV and read in the paper are usually so partisan that they are unreliable. We all have a bias, and since you know I’m a civil rights lawyer, you probably also know where my sympathies lie. That said, I’m going to try to explain this extremely arcane Constitutional law concept in a clear and objective way.

What Does The Constitution Say?

Article 2, Section 4 of the United States Constitution states that, “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.” The clauses in Article 1 that give the House of Representatives the power to “impeach,” and the Senate the power to “try the case,” are not disputed. 

History of Impeachment and Removals

In the entire history of the United States, prior to the current proceedings, only two Presidents, one Senator, one cabinet office and fifteen judges have been impeached. From this group, the only convictions and removals were for eight of the Judges. One of the reasons for the rarity of impeachment is that most civil officers resign when confronted with scandal. Contrary to popular belief, President Richard Nixon was never impeached by the House of Representatives. He resigned once the magnitude of the evidence about the Watergate coverup was released. John Pickering was a federal judge charged with making rulings that were “in violation of the laws of the United States,” “contrary to his trust and duty as a Judge,” and with sitting on the bench “in a total state of intoxication.” The Senate found him “guilty as charged” and removed him, even though he had not committed any actual criminal acts. Pickering doesn’t close the debate on whether a government official can be impeached for acts that are merely “disgraceful” and “degrading to the honor of the United States” or whether there must be an actual criminal act. Robert Woodrow Archbald was impeached and removed from the United States Commerce Court for improper business relationships with litigants. Harry Clairborne was impeached and removed after being convicted of tax evasion and Halsted Lockwood Ritter was impeached and removed for “favoritism in the appointment of bankruptcy receivers and practicing law without a license.”

How Has “High Crimes and Misdemeanors” Been Interpreted?

No President has ever been impeached, convicted and removed. Looking at the cases of the eight judges that were impeached, convicted and removed for “high crimes and misdemeanors” shows that not all of them had committed any actual crimes. It’s crystal clear that officials cannot be removed for simple incompetence or unfitness, but only for abuses of office. The problem is that the line between abuse and unfitness is not always so clear. 

Should President Trump Be Convicted and Removed From Office?

That’s not for me to say, but it is important that we put pressure on Congress to ensure that the proceedings are fair. Both President Trump and the American people deserve nothing less than the truth.