The Beltway fixture that Republicans have placed in charge of the House judiciary committee—i.e., the committee that, by its own description, functions as “the lawyer for the House of Representatives,” and claims an “infrequent but important role in impeachment proceedings”—is ignorant when it comes to the Constitution’s impeachment standard.

Chairman Bob Goodlatte (R., Va.) took to one of the Sunday shows to demonstrate his cluelessness. After explaining that “the Constitution is very clear as to what constitutes grounds for impeachment of the president of the United States,” he proceeded to mangle that very clear standard, opining that President Obama “has not committed the kind of criminal acts that call for that.”

In point of fact, no “criminal acts” are necessary before a president may be impeached. The very clear standard the Constitution prescribes calls for impeachment upon the commission of treason, bribery, or high crimes and misdemeanors. Treason and bribery are, of course, well known criminal acts. As I illustrate in Faithless Execution, “high crimes and misdemeanors” is a term of art borrowed from British law. It does not refer—at least, not necessarily—to criminal acts that violate the penal code. Instead, it captures what Hamilton, in Federalist No. 65, described as:

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 concept conveyed by “high crimes and misdemeanors” is executive maladministration, whether out of imperiousness, corruption or incompetence. In that sense, it is more redolent of military justice offenses than criminal acts that violate the penal code. Like a soldier, one who owes fiduciary responsibility is liable for acts that would not be considered criminal wrongs if committed by an ordinary civilian. Dereliction of duty, conduct unbecoming, profound deceitfulness, and the failure to honor an oath, to take a few obvious examples, would qualify as high crimes and misdemeanors even if they might not be indictable offenses if committed by one in whom high public trust was not reposed.

As I further relate in Faithless Execution, what the Framers were most concerned about was presidential misconduct that undermined our governing framework, particularly the separation of powers:

[F]ixing on betrayal of the president’s fiduciary duty and oath of allegiance to our system of government, [George] Mason elaborated that “attempts to subvert the Constitution” would be chief among the “many great and dangerous offences” beyond treason and bribery for which removal of the president would be warranted. Given that we here consider President Obama, who has, among other wrongs, actually succeeded in usurping congressional law-writing power – in the sense that he is ubiquitously exercising it with impunity – it is noteworthy that, for the Framers, mere attempts to subvert the constitution were a sufficiently heinous breach of trust to warrant removal by impeachment.

I also quote this useful synopsis of “high crimes and misdemeanors” from the Constitutional Rights Foundation:

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.

It is this uniquely political aspect of impeachment that distinguishes it from judicial proceedings and technical legal processes. As the Constitution Society’s Jon Roland explains, it was immaterial whether the offenses cited in articles of impeachment “were prohibited by statutes”; what mattered were

the obligations of the offender…. The obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.”

The Framers wanted the legal basis for impeachment to be clear (even if it remains a mystery to the man Republicans have chosen to lead the judiciary committee), but they also wanted real impeachment—meaning removal from office, not just the formal accusation of impeachable offenses—to be difficult to carry out. The requirement of a two-thirds super-majority vote in the Senate to remove the president from power ensures that impeachment can succeed only if there is a public consensus supporting it—a consensus that cuts across partisan and ideological lines.

Consequently, it makes sense that the House is not “drawing up articles of impeachment,” as Rep. Goodlatte took pains to assure George Stephanopoulos. Impeachment is a political remedy involving the stripping of political authority, not the proof of crimes. In that most important of senses, it is a matter of public will.

-SNIP-

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