Impeachment Grounds: Part 6: Quotes from Sundry Commentators

Impeachment Grounds: Part 6: Quotes from Sundry Commentators

98-899 A
October 30, 1998
CRS Report for Congress
Received through the CRS Web
Impeachment Grounds:
Part 6: Quotes from Sundry Commentators
(name redacted)
Senior Specialist
American Law Division
Summary
This is a collection of selected background materials pertinent to the issue of what
constitutes impeachable misconduct for purposes of Article II, section 4 of the United
States Constitution quoted below. It includes quotations from treatises and law reviews
on the question. Unfortunately, the constraints of time and space, among others,
preclude presentation of little more than a hint of the views of the cited works. It is the
last of six segments that together with footnotes comprise, Impeachment Grounds: A
Collection of Selected Materials, CRS Report 98-882.
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. U.S.Const. Art. II, §4
Charles Black
Impeachment: A Handbook
39-40 (1974)
“Omitting qualifications, and recognizing that the definition is only an
approximation, I think we can say that `high Crimes and Misdemeanors,’ in the
constitutional sense, ought to be held to be those offenses which are rather obviously
wrong, whether or not `criminal,’ and which so seriously threaten the order of political
society as to make petulant and dangerous the continuance in power of their perpetrator.
The fact that such an act is also criminal helps, even if it is not essential, because a general
societal view of wrongness, and sometimes of seriousness, is, in such a case, publicly and
authoritatively recorded.
“The phrase `high Crimes and Misdemeanors’ carries another connotation—that of
distinctness of offense. It seems that a charge of high crime or high misdemeanor ought
to be a charge of a definite act or acts, each of which in itself satisfies the above
requirements. General lowness and shabbiness ought not to be enough. The people take
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some chances when they elect a man to the presidency, and I think this is one of them,”
BLACK, IMPEACHMENT: A HANDBOOK, 39-40 (1974).
Bob Barr
“The `President and all civil Officers of the United States shall be removed
from Office on Impeachment for and Convictions of, Treason, Bribery, or other high
Crimes and Misdemeanors.’ The phrase `high crimes and misdemeanors’ was an English
term of art that denoted political crimes against the state, and the choice of this phrase was
a deliberate and considered action. By including that English phrase, our Founding
Fathers intended to expand the scope of impeachable offenses beyond the scope of
criminally indictable offenses. This language incorporates political offenses against the
state that injure the structure of government and tarnish the integrity of the political office.
As Alexander Hamilton observed, these political offenses include breaches of the public
trust that a president assumes once he has taken office. Hamilton made this point in the
Federalist, describing impeachable crimes as `those offences which proceed from the
misconduct of public men, or, in other words, from the abuses or violations 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”,
BARR, High Crimes and Misdemeanors, 2 TEXAS REVIEW OF LAW AND POLICY 1, 9-10
(1997).
John Labovitz
“The concept of an impeachable offense guts an impeachment case of the very
factors — repetition, pattern, coherence — that tend to establish the requisite degree of
seriousness warranting the removal of a president from office. . . .
“The most pertinent precedent in this nation’s history for framing a case for the
removal of a chief executive may well be the earliest — the Declaration of Independence.
In expressing reasons for throwing off the government of George III, the Continental
Congress did not claim that there had been a single offense justifying revolution. Instead,
it pointed to a course of conduct; it `pursu[ed] invariably the same Object’ and evinced
a common design; it `all [had] in direct object the establishment of absolute Tyranny over
these States.’ It was this pattern of wrongdoing taken together, not each specification
considered alone, that showed the unfitness of George III to be the ruler of the American
people. . . . [T]he unfitness of a president to continue in office is to be judged in much the
same way: with reference to totality of his conduct and the common patterns that emerge,
not in terms of whether this or that act of wrongdoing, viewed in isolation, is an
impeachable offense,” LABOVITZ, PRESIDENTIAL IMPEACHMENT, 129-31 (1978).
Paul Fenton
“It can therefore be concluded that impeachment is not a political tool for arbitrary
removal of officials; that the standard for what constitutes an impeachable offense is not
based on an inflexible historical precedent or on the judicial tenure clause; that
impeachment is not limited to crimes, whether indictable or otherwise; and that the

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sanction of impeachment does not extend to noncriminal misconduct unless it involves
violation of statutory law, the conduct of the respondent’s official duties or an abuse of
his official position.
“Within these limitations, it is extremely difficult to define the proper standard for
an impeachable offense in affirmative terms. . . .
“The only generalization which can safely be made is that an impeachable offense
must be serious in nature. . . .
“While there are no clear rules as to what constitutes a serious offense, there are a
number of factors which are relevant. Thus an offense is more serious if it is a criminal
violation or if it involves moral turpitude. In the words of one court,
It may be safely asserted that where the act of official delinquency consists in the
violation of some provision of the constitution or statute which is denounced as a crime
or misdemeanor, or where it is a mere neglect of duty willfully done, with a corrupt
intention, or where the negligence is so gross and disregard of duty so flagrant as to
warrant the inference that it was willful and corrupt, it is within the definition of a
misdemeanor in office. But where it consists of a mere error of judgment or omission of
duty without the element of fraud, and where the negligence is attributable to a
misconception of duty rather than a willful disregard thereof, it is not impeachable,
although it may be highly prejudicial to the interests of the State,” Fenton, The Scope of
the Impeachment Power, 65 NORTHWESTERN UNIVERSITY LAW REVIEW 719, 745-7
(1970).
Laurence Tribe
“Despite then-Congressman Gerald Ford’s well-known assertion that `an
impeachable offence is whatever a majority of the House of Representatives considers [it]
to be’, there is now wide agreement that the phrase `high Crimes and Misdemeanor’ was
intended by the Framers to connote a relatively limited category closely analogous to the
`great offences’ impeachable in common law England. In addition to treason and bribery,
the `great offences’ included misapplication of funds, abuse of official power, neglect of
duty, encroachment on or contempt of legislative prerogatives, and corruption.
“There have been only two serious attempts to impeach American Presidents. In
both instances, the offenses charged reflected the impact of the common law tradition
discussed here: offenses have been regarded as impeachable if and only if they involve
serious abuse of official power,” TRIBE, AMERICAN CONSTITUTIONAL LAW 217 (1978).
Theodore Dwight
“I have dwelt the longer on this point because many seem to think that a public
officer can be impeached for a mere act of indecorum. On the contrary, he must have
committed a true crime, not against the law of England but against the law of the United
States. As impeachment is nothing but a mode of trial, the Constitution only adopts it as
a mode of procedure, leaving the crimes to which it is to be applied to be settled by the
general rules of criminal law.
“. . . [A]s there are under the laws of the United States no common law crimes, but
only those which are contrary to some positive statutory rule, there can be no
impeachment except for a violation of a law of Congress or for the commission of a crime

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named in the constitution. English precedents concerning impeachable crimes are
consequently not applicable,” Dwight, Trial by Impeachment, 15 AMERICAN LAW
REGISTER (6 N.S.) 257, 268-69 (1867).
Alexander Simpson
“Many attempts have been made to define this power, quite commonly by those who
were trying to make the definition fit the facts to a particular case, rather than to have it
accord with the constitutional provisions only. A notable exception to this, however . .
. is what was said by Manager (afterwards President) Buchanan in the Peck Impeachment:
`What is misbehavior in office? In answer to this question and without pretending
to furnish a definition, I freely admit that we are bound to prove that the respondent has
violated the Constitution, or some known law of the land. This, I think, is the principle
fairly to be deduced from all the arguments on the trial of Judge Chase, and from the votes
of the Senate on the Articles of Impeachment against him, in opposition to the principle
for which his counsel in the first instance strenuously contended, that in order to render
an offence impeachable it must be indictable. But this violation of law may consist in the
abuse, as well as in the usurpation of authority. The abuse of a power which has been
given may be criminal as the usurpation of a power that has not been granted.’
“Perhaps that statement should be broadened to include offences of so weighty a
character, and so injurious to the office, that every official is bound to know that they are
of the same general character as crimes, and might well be made criminal by statute; but
the terra incognita beyond, no one can properly be asked to explore under the existing
constitutional provisions, if for no other reason than because it is a fixed and salutary
principle that penal provisions shall be so construed that the persons to be affected by
them may certainly know what things they are forbidden to do,” Simpson, Federal
Impeachments, 64 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 651, 881 (1916).
Michael Gerhardt
“[A]ttempts to limit the scope of impeachable offenses have rarely proposed limiting
impeachable offenses only to indictable offenses. Rather, the major disagreement among
commentators has been over the range of nonindictable offenses for which someone may
be impeached.
* * *
“The . . . problem is how to identify those nonindictable offenses for which certain
high-level government officials may be impeached. Given that certain federal officials
may be impeached and removed for committing serious abuses against the state and that
these abuses are not confined to indictable offenses, the challenge is to find contemporary
analogues to the abuses against the state that authorities such as Hamilton and Justices
Wilson and Story viewed as suitable grounds for impeachment. On the one hand, these
abuses may be reflected in certain statutory crimes. Violations of federal criminal statues,
such as the bribery statute, represent abuses against the state sufficient to subject the
perpetrator to impeachment and removal, because bribery demonstrates serious lack of
judgment and respect for the law and because bribery lowers respect for the office. In
other words, there are certain statutory crimes that, if committed by public officials,
reflect such lapses of judgment, such disregard for the welfare of the state, and such lack

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of respect for the law and the office held that the occupant may be impeached and
removed for lacking the minimum level of integrity and judgment sufficient to discharge
the responsibilities of the office. On the other hand, Congress needs to be prepared, as
then-Congressman Ford pointed out, to explain what nonindictable offenses may be
impeachable offenses by defining contemporary political crimes. The boundaries of
congressional power to define such political crimes defy specification because they rest
both on the circumstances underlying a particular offense (including the actor, the forum,
and the political crime) and on the collective political judgement of Congress,” Gerhardt,
The Constitutional Limits of Impeachment, 68 TEXAS LAW REVIEW 1, 83, (1989).
Ronald Rotunda
“Moreover, leaving aside historical precedent, to limit impeachment to the
commission of crimes is bad policy, such a limitation is both too broad and too narrow.
It is too broad because some crimes have no functional relation to the problem of
malfeasance or abuse of office. For example, if an official in the executive branch, a
judge, or a legislator, had been arrested once for driving while intoxicated, that crime
should not merit the drastic remedy of removal from office.
“The proposed limitation is also too narrow, for the `civil Officer’ might engage in
many activities which amount to abuse of office and yet not commit any crimes. For
example, if the President abused his pardon power by unconstitutionally pardoning a
judge who had been impeached or summoned the Senators from only a few states to ratify
a treaty, the President may have violated no criminal law, but he or she has abused the
office. . . .” Rotunda, An Essay on the Constitutional Parameters of Federal
Impeachment, 76 KENTUCKY LAW JOURNAL 707, 725-26 (1988).

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