Editor's Note: In 1974, a law professor named Charles L. Black published an extraordinary brief volume, entitled, Impeachment: A Handbook. It is the finest text on the subject I have ever read. With the subject of impeachment on many people's minds these days, we received permission from Yale University Press to republish the portion of Black's book that discusses the parameters of the impeachable offense. I also asked Jane Chong to write an essay applying the lessons of Black's book to our time. I recommend that readers take the time to read Black's book in its entirety, along with Jane's exceedingly thoughtful treatment of its importance in the age of Donald Trump.
We come now to the heart of the matter. What offenses are impeachable? The constitutional categories are "Treason, Bribery, and other high Crimes and Misdemeanors."
Here we are on smooth ground. The Constitution narrowly defines "treason," in Article III:
Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
There is, in short, no reason to think the word means anything other than this in the impeachment passage. This makes irrelevant a great deal of learning (interesting enough in itself) about treasons under English law, except insofar (and that is not very far) as the contemplation of these throws light on the interpretation of the exceedingly narrow American definition. Since the situation in our times has in no way implicated "treason," the subject may be put to one side.
The first point to be made here is that bribery may mean the taking as well as the giving of a bribe. At the Constitutional Convention, Gouverneur Morris gave the instance of Charles II, who "was bribed by Louis XIV."
As to both the taking and giving of bribes, several cases that have lately been in the spotlight remind us that the states of mind of giver and of recipient are all important. There is nothing wrong with receiving a campaign contribution from dairy interests; there is nothing wrong in raising the price-support on milk. The question is as to the connection between the two events. An old English judge said that "The Devil himself knoweth not the heart of a man." But courts have to try, and continually do try, to work out the truth about intents and motives, for these are often (in bribery cases as elsewhere) of the very essence of the charge.
Is it "bribery" (or attempted "bribery") to suggest to a federal judge, engaged in trying a case crucial to the executive branch, that the directorship of the Federal Bureau of Investigation might be available? It is not wrong to offer a good district judge an important job. Almost all district judges, almost always, have government cases pending before them, in some number. Again, it is motive or intent that is crucial and that is hard to prove.
Careful, patient inquiry into and weighing of the facts is essential before one even begins to judge, in cases such as these. Beyond doubt, such cases are suspicious, but suspicion is not enough. On the other hand, it is not always a hopeless task, though it is usually a very difficult one, to establish improper motives on circumstantial evidence. In cases such as those here used as examples, there is nothing a conscientious congressman or senator can do but to suspend judgment until all the evidence is heard and analyzed.
"Other high Crimes and Misdemeanors"
This is the third, catchall phrase in the formula designating impeachable offenses. The reader will hardly need to be told that it must generate, and has generated, great difficulties of interpretation. Some definite things can be said about its extent, but we will be left with an area of considerable vagueness. Let us take the definite things first.
It would be well to start with the one and only discussion of the phrase at the 1787 Constitutional Convention. The day was September 8, 1787, just nine days before the Constitution was signed and transmitted for the adherence of the states. The impeachment provision, as reported out by the last of the convention committees (except the final one charged only with polishing the style of the Constitution), listed "treason and bribery" as the only grounds for impeachment and removal. The colloquy we need to look at was brief, taking perhaps five minutes:
The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up.
Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined— As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration". Mr. Gerry seconded him—
Mr Madison So vague a term will be equivalent to a tenure during pleasure of the Senate.
Mr Govr Morris, it will not be put in force & can do no harm— An election of every four years will prevent maladministration.
Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemeanors" <agst. the State">
On the question thus altered
N. H— ay. Mas.— ay Ct. ay. (N. J. no) Pa no. Del. no. Md ay. Va. ay. N. C. ay. S. C. ay.* Geo. ay. [Ayes—8; noes—3.]
This is by far the most important piece of evidence on the original intention with regard to the "other high Crimes and Misdemeanors" phrase. It is true that the proceedings of the Convention were secret (a fact, like the fact that the Supreme Court deliberates in deep secrecy, not often mentioned by those who would have us think that secrecy in public affairs is always wrong). But the men present were representative of their time, and their understanding, at the moment when the crucial language was under closest examination, tells us a great deal about its meaning.
It is interesting first that this passage quite definitely establishes that "maladministration" was distinctly rejected as a ground for impeachment. The conscious and deliberate character of this rejection is accentuated by the fact that a good many state constitutions of the time did have "maladministration" as an impeachment ground. This does not mean that a given act may not be an instance both of "maladministration" and of "high crime" or "misdemeanor." It does mean that not all acts of "maladministration" are covered by the phrase actually accepted. This follows inevitably from Madison's ready acceptance of the phraseology now in the text; if "maladministration" was too "vague" for him, and "high Crimes and Misdemeanors" included all "maladministration," then he would surely have objected to the phrase actually accepted, as being even "vaguer" than the one rejected.
On the other hand, Mason's ready substitution of "high Crimes and Misdemeanors" indicates that he thought (and no voice was raised in doubt) that this new phrase would satisfactorily cover "many great and dangerous offenses" not reached by the words "treason" and "bribery"; its coverage was understood to be broad.
The whole colloquy just quoted seems to support the view that "high Crimes and Misdemeanors" ought to be conceived as offenses having about them some flavor of criminality. Mere "maladministration" was not to be enough for impeachment. This line may be a hard one to follow, but it is the line that the Framers quite clearly intended to draw, and we will have to try to follow it as best we can.
Several other things are to be noted about this colloquy of September 8, 1787. Madison's reason for objecting to "maladministration" as a ground was that the inclusion of this phrase would result in the president's holding his office "during pleasure of the Senate." In other words, if mere inefficient administration, or administration that did not accord with Congress's view of good policy, were enough for impeachment and removal without any flavor of criminality or distinct wrongdoing, impeachment and removal would take on the character of a British parliamentary vote of "no confidence." The September 8 colloquy makes it very plain that this was not wanted, and certainly the phrase "high Crimes and Misdemeanors," whatever its vagueness at the edges, seems absolutely to forbid the removal of a president on the grounds that Congress does not on the whole think his administration of public affairs is good. This distinction may not be easy to draw in every case, but there are vast areas in which it is very clear. And it is perhaps the most important distinction of all, because it tells us—and Congress—that whatever may be the grounds for impeachment and removal, dislike of a president's policy is definitely not one of them, and ought to play no part in the decision on impeachment. There is every reason to think that most congressmen and senators are aware of this.
Before we leave this verbal exchange of a September 1787 day, one more little-noticed point must be mentioned. Mason says that we need more grounds for impeachment than treason and bribery alone because we do not have the "bill of attainder," which he thinks to have been a safeguard of the British Constitution. Let us explore this.
The parliamentary bill of attainder, probably more often than not directed at a public official, made past conduct of the person attainted criminal, and imposed punishment for it, without judicial trial and without any necessary reference to prior law or to his offense's being a crime under that prior law. The Framers of our Constitution looked on this procedure with such abhorrence that they prohibited its use not only by Congress but even by the states. In the same clauses of the Constitution, they also prohibited, both as to Congress and as to the states, the passage of any "ex post facto law"—a law making past conduct criminal, with the result that a person could be punished for doing something which was not criminal when he did it. It will be seen that these two monstrosities overlap in their coverage, because the "bill of attainder," as said just above, may impose penalties for any conduct, whether or not the prior law dealt with that conduct at all.
Now Mason's assumption—which was not challenged and which seems clearly right—was that the "bill of attainder" prohibition applied to any congressional actions dealing with the president. If this assumption is right, then it must also be true that the prohibition of "ex post facto" laws—laws making punishable conduct that was not punishable when committed—is equally applicable to Congress's dealings with the president. If this is right—and I would think it right whether Mason had said what he did or not—then we have established another boundary on "high Crimes and Misdemeanors": that phrase must not be so interpreted as to make its operation in a given impeachment case equivalent to the operation of a bill of attainder, or of an ex post facto law, or of both.
When a congressman says, in effect, that Congress is entirely free to treat as impeachable any conduct it desires so to treat, he (or she) is giving a good textbook definition of a bill of attainder and an ex post facto law, rolled into one. Our Framers abhorred both these things, and we have never wavered from that abhorrence. It cannot be right for Congress to act toward the president as though these prohibitions did not exist. There may be no way to keep Congress from violating their letter or spirit, but the conscientious congressman has to feel them, in spirit at least, as bounding and confining the operation of the vague words, "high Crimes and Misdemeanors."
I say "in spirit," because the letter of these clauses cannot always apply. As pointed out above, in connection with the question of criminal character of the impeachment proceeding, the words "high Crimes and Misdemeanors'' are themselves too vague to satisfy constitutional standards of reasonably clear warning, in criminal statutes as applied in the ordinary courts; in this technical sense, the application of the quoted phrase to concrete cases must often be "ex post facto" in practical effect. But the spirit and equity of the bill of attainder and ex post facto clauses can to a large extent be followed if we treat as impeachable those offenses, and only those, that a reasonable man might anticipate would be thought abusive and wrong, without reference to partisan politics or differences of opinion on policy. The approximation of this result necessitates exploration of some further issues.
The Relation between Impeachable Offenses and Ordinary Crimes
"Treason" and "bribery" are crimes, whether committed by the president or by anyone else. Is the meaning of the phrase "high Crimes and Misdemeanors" limited to ordinary crimes? Can a president lawfully be impeached and removed only for conduct which would also be punishable crime for anybody?
Some have contended for this interpretation. It would be easeful to be able to adopt it, because the vague phrase "high Crimes and Misdemeanors," would thus be lent all the precision of the statute book; agonized attempts properly to limit it, while at the same time leaving it properly ample scope, would be avoided. But I cannot think it remotely possible that this interpretation is right.
Suppose a president were to move to Saudi Arabia, so he could have four wives, and were to propose to conduct the office of the presidency by mail and wireless from there. This would not be a crime, provided his passport were in order. Is it possible that such gross and wanton neglect of duty could not be grounds for impeachment and removal?
Suppose a president were to announce that he would under no circumstances appoint any Roman Catholic to office and were rigorously to stick to this plan. I am not sure that this conduct would be punishable as crime, though it would clearly violate the constitutional provision that "no religious test" may ever be required for holding federal office. I cannot believe that it would make any difference whether this conduct was criminal for general purposes; it would clearly be a gross and anticonstitutional abuse of power, going to the life of our national unity, and it would be absurd to think that a president might not properly be removed for it.
Suppose a president were to announce and follow a policy of granting full pardons, in advance of indictment or trial, to all federal agents or police who killed anybody in line of duty, in the District of Columbia, whatever the circumstances and however unnecessary the killing. This would not be a crime, and probably could not be made a crime under the Constitution. But could anybody doubt that such conduct would be impeachable?
These extreme examples test the overall validity of the proposition that impeachable offenses must be ordinary indictable crimes as well, and I think the proposition fails the test. But the rather extravagant character of the illustrations makes another point: most actual presidential misdeeds, of a seriousness sufficient to warrant impeachment, are likely to be ordinary crimes as well. It is somewhat strange, indeed, that the question here being examined has assumed such prominence in our days, because most of the wrongful acts that have been seriously charged against an incumbent president are regular crimes—bribery, obstruction of justice, income-tax fraud, and so on—so that, as to these offenses, the issue under discussion here need not arise.
One important exception may be warlike activity. It seems quite possible that military action, unauthorized by Congress and concealed from Congress, might at some point constitute such a murderous and insensate abuse of the commander-in-chief power as to amount to a "high Crime" or "Misdemeanor" for impeachment purposes, though not criminal in the ordinary sense. But (as I shall maintain later) precedents of the distant and recent past make it hard to establish knowing wrongfulness in most such cases. And the question, specifically, whether the long-secret 1973 Cambodian bombing could amount to an impeachable offense is complicated by the fact that, on its being revealed, Congress, by postponing until August 15, 1973, the deadline for its ending, would seem to have come close to ratifying it. One is sailing very close to the wind when one says, "You may do it till August 15, but it is an impeachable offense."
To resume the main line of thought here, I would conclude that the limitation of impeachable offenses to those offenses made generally criminal by statute is unwarranted—even absurd. But it remains true that the House of Representatives and the Senate must feel more comfortable when dealing with conduct clearly criminal in the ordinary sense, for as one gets further from that area it becomes progressively more difficult to be certain, as to any particular offense, that it is impeachable.
To turn the coin around, it would be comforting to our desire for certainty to be able to conclude, at least, that all regular crimes are impeachable offenses. But a moment's reflection would show that this, too, would produce absurdities. Suppose a president transported a woman across a state line or even (so the Mann Act reads) from one point to another within the District of Columbia, for what is quaintly called an "immoral purpose." Or suppose a president did not immediately report to the nearest policeman that he had discovered that one of his aides was a practicing homosexual—thereby committing "misprision of a felony." Or suppose the president actively assisted a young White House intern in concealing the latter's possession of three ounces of marijuana—thus himself becoming guilty of "obstruction of justice." Or suppose, to take a real instance, that the presidential ladies' wearing of the Saudi Arabian jewels technically constituted a criminal "conversion" and that the president could be shown to have been an "accomplice." Would it not be preposterous to think that any of this is what the Framers meant when they referred to "Treason, Bribery, and other high Crimes and Misdemeanors," or that any sensible constitutional plan would make a president removable on such grounds?
An Affirmative Approach to the Meaning of "high Crimes and Misdemeanors"
At this point, I think, we have to have recourse to an old and quite sensible rule of legal construction. This rule has, expectably, a Latin name, "eiusdem generis." This phrase means "of the same kind," and what the rule eiusdem generis says is that, when a general word occurs after a number of specific words, the meaning of the general word ought often to be limited to the kind or class of things within which the specific words fall. Thus if I said, "Bring me some ice cream, or some candy, or something else good," I would think you had understood me well if you brought me a piece of good angel food cake, I would boggle a little, perhaps, if you brought me a good baked potato, and I would think you crazy or stupid or willful if you brought me a good book of sermons or a good bicycle tire pump.
Like all "rules" of interpretation, this one is not applicable everywhere. But it seems quite naturally to apply to the phrase "Treason, Bribery, or other high Crimes and Misdemeanors," and could help us toward identifying both those ordinary crimes which ought also to be looked upon as impeachable offenses, and those serious misdeeds, not ordinary crimes, which ought to be looked on as impeachable offenses, though not criminal in the ordinary sense.
The catch in applying this eiusdem generis rule is the difficulty (sometimes) of correctly pinning down the "kind" to which the specific items belong. In the present case, however, the "kind" to which "treason" and "bribery" belong is rather readily identifiable. They are offenses (1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and ( 3 ) which are plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books.
Now this all may sound unbearably abstract, but this line of thought could solve many problems. Take the string of imagined cases used above to show the absurdity of limiting impeachable offenses to ordinary crimes—the examples of a president's migrating to Saudi Arabia, or of his excluding Roman Catholics from appointment to office, or of his systematically pardoning all government police who kill anybody under any circumstances. Is it not the fact that these are serious assaults on the integrity of the processes of government, obviously wrong to any man of normal good sense, that makes us feel certain they must be impeachable offenses? On the other hand, take the common crimes that I gave as examples of criminal offenses which we would probably not think impeachable—transporting a woman for "immoral purposes," or easing things a bit for aides in trouble. If you agree with me that these offenses ought not to be held impeachable, is that not because they are not (as treason and bribery are) serious offenses against the nation or its governmental and political processes, obviously wrong, in themselves, to any person of honor?
Let us test the power of this kind of thought by applying it to a far from fanciful set of facts. Suppose a president were shown by convincing evidence to have used the federal tax system consistently and massively as a means of harassing and punishing his political opponents. As far as I know, this conduct is not criminal in the ordinary sense. But does such gross misuse of what is supposed to be a politically neutral arm of government not tend seriously to undermine and corrupt the political order? Is it not obviously wrong, to any man of ordinary honor? If these questions are answered "yes,'' then this offense, as lawyers might say, is eiusdem generis, of the same kind, with treason and bribery. If it is a crime under statute, then it is the kind of ordinary crime that ought to be held impeachable. If it is not a crime under statute, then it is the kind of offense which ought to be held impeachable, though not criminal in the ordinary sense. In both cases, this is because such an offense is, in the relevant ways, of the same kind as treason and bribery.
This rule will not work all the way; rules of interpretation rarely do. But the one obvious exception may be more apparent than real. Many common crimes—willful murder, for example—though not subversive of government or political order, might be so serious as to make a president simply unviable as a national leader; I cannot think that a president who had committed murder could not be removed by impeachment. But the underlying reason remains much the same; such crimes would so stain a president as to make his continuance in office dangerous to public order. Indeed, it may be this prospective tainting of the presidency that caused even treason and bribery to be made impeachable. So far as punishment goes, we could punish a traitorous or corrupt president after his term expired; we remove him principally because we fear he will do it again, or because a traitor or the taker of a bribe is not thinkable as a national leader.
Now this has been a long pull, but we have our hands on a good first approximation to a rational definition of an impeachable "high Crime or Misdemeanor." 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 pestilent 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 some chances when they elect a man to the presidency, and I think this is one of them.
While on the topic of the relations between criminality and impeachability, let me remind the reader that the president, like everybody else, is generally bound by the criminal law. If something he has done is both a crime and an impeachable offense, then, by express constitutional provision, he may, after removal, be tried again in the ordinary courts, and punished; this provision was put in to avoid any possible plea of "double jeopardy." If his criminal act is not held impeachable, it is still criminal. If the contention is upheld (and I for one think it ought to be) that an incumbent president cannot be put on trial in the ordinary courts for ordinary crime, and if the crime he is charged with is not an impeachable offense, the simple and obvious solution would be either to indict him and delay trial until after his term has expired, or to delay indictment until after his term, with the "Statute of Limitations," which bars prosecution after a certain time, "tolled"—that is to say, stopped running—until the president's term is over. All these results could easily be attained by legitimate judicial techniques, but a simple Act of Congress could put the matter beyond doubt.
Application to Particular Problems
In what follows, I do not intend in any way to judge any real-life issue. Questions of exact fact and of evidence are always crucial, and it is not in any case my wish here to decide anything. But some questions are inevitably suggested by events, and can be dealt with tentatively.
There is of course no problem about the impeachability of bribery; as indicated above, the problems in such cases are factual and are at their most difficult when motivation is concerned—the motivational connection between the thing of value received and the benefit conferred.
Serious income-tax fraud by a president, particularly when the vehicle of such fraud is a set of papers resulting from his holding one government office, and when he might anticipate virtual immunity from serious audit because of his occupying the presidency, would seem definitely impeachable, in addition to being criminal. The offense seems akin to bribery, in that it uses office for corrupt gain; in any case, it undermines government, and confidence in government. A large-scale tax cheat is not a viable chief magistrate.
Use of Tax System to Harass Opponents
This has been discussed just above, as an illustration of the partial irrelevance of the ordinary criminal law to the finding of an impeachable offense. This offense not only thoroughly satisfies the canon of interpretation I have tried to elaborate, but also strikes close to the heart of what the Framers most feared in a president—abuse of power. Enforcement of any law, including the tax laws, must be to some extent discretionary. Perhaps the most dangerous (and certainly the most immoral) line of conduct an official can follow is that of using this discretion, which is given him for public purposes and is meant to be used neutrally, for the grossly improper purposes of menace and revenge. I should think that clearly evidenced and persistent misconduct of this kind is impeachable beyond a doubt.
Obviously, the same would be true of the harassing use of any governmental power meant to be neutrally employed; the tax system is only a conspicuous example.
Impoundment of Appropriated Funds for the Purpose of Destroying Authorized Programs
I, myself, feel no doubt that it is a violation of his constitutional duty for a president to use his discretionary power (which sometimes must be given him) over expenditures, for the improper purpose of dismantling altogether, or severely crippling, programs that have been regularly enacted in lawful form; this seems to me a violation of his duty to take care that the laws be faithfully executed. "Faithfully" is a word that does not keep company with the disingenuous pretense that economy is the motive, when the real motive is hostility to the law.
But that is only an opinion, and this is a gray area, wherein opinions may legitimately differ. The president operates under a statutory directive that total expenditure or debt not exceed a certain figure, and he may even have some residual responsibility not to see the country descend into financial ruin. He might think (though others would disagree) that these responsibilities were to be served best by cuts where his judgment advised they might least hurtfully be made, rather than by cuts across the board. Many appropriations, moreover, are phrased by Congress as authorities rather than as duties to spend. Finally, there seem to exist, in many cases, adequate judicial remedies for persons or governmental units who have a clear legal right to the "impounded" money, and a president might think that by "impounding" he is doing no more than referring a doubtful question to the courts.
On the whole, for all these reasons, I incline to think "impoundment" not an impeachable offense, though one ought never try to anticipate judgment on the flagrancy of some instance that might come to light. The problem is one that badly needs to be dealt with by Congress, using means short of impeachment—as to which, see Chapter 5.
Unauthorized Warlike Operations
This I find the most agonizing question of all. As a new matter, I should have thought that totally unauthorized entrance into hostilities, without any emergency or any immediate threat to the nation, was the grossest possible usurpation of power, clearly impeachable.
Unfortunately, it is not a new matter. The Bay of Pigs, for example, happened—and as far as I recall there was no talk of impeachment. There are many, many other precedents to which appeal can be made. Furthermore, there is often some fairly plausible claim of authorization in the particular case, and where experts disagree on justification, it is hard to find clear and wanton abuse of power. Moreover, it is the undoubted fact that the wrongness of unauthorized military action is likely to seem clear, on the whole, only to those who disapprove substantively of the particular intervention; would it be thought that an impeachable offense had been committed if our forces in the Mediterranean were ordered to intervene to keep the Syrians from taking Haifa?
Reluctantly, I have to conclude that only a very extreme and not now visible case ought to bring the impeachment weapon into play as a sanction against presidential warlike activity. Congress ought to deal with this matter comprehensively and clearly; if it did, then the president's violation of the congressional rules would be impeachable beyond a doubt, for the uncertainties generated by precedent would be cleared up. The so-called War Powers Resolution passed last year is so far from filling this need that the Administration, not without plausibility, could publicly toy with the idea that the resolution, supposedly a restraint on the president, actually authorized resumption of the Cambodian bombing that Congress had earlier ordered to be ended!
Improper Campaign Tactics
I know of no offense the impeachability of which more depends on the exact case shown by evidence. There must come a point at which the deliberate harassment of political opponents—the bugging of their offices, the circulation of known lies about them, the attributing to them of statements they never made, and so forth—takes on the character of deliberate and knowing wrong, as highly corruptive of the political process as is the actual bribery of voters. On the other hand, politics is known by all not to be croquet, and a certain amount of roughing up is expected. One could construct an endless series of hypothetical cases, and try to pronounce on each; the part of wisdom, in any such situation, is to suspend judgment until a real case is made out.
Here again, Congress could do much more than it has done to make clear what the rules are to be.
Obstruction of Justice
Here the question has to be whether the obstruction of justice has to do with public affairs and the political system; I would not think impeachable a president's act in helping a child or a friend of his to conceal misdeeds, unless the action were so gross as to make the president unviable as a leader. In many cases his failure to protect some people at some times might result in his being held in contempt by the public. I would have to say that the protection of their own people is in all leaders, up to a point, a forgivable sin, and perhaps even an expectable one; this consideration may go to the issue of "substantiality," with which this chapter closes. But the obstruction of justice is ordinarily a wrong as well as a crime, and when it occurs in connection with governmental matters, and when its perpetrator is the person principally charged with taking care that the laws be faithfully executed, there must come a point at which excuses fail. Here again, the concreteness of the evidentiary case is all important.
Some Final Considerations
The President's Responsibility for Acts of his Subordinates
As to each possible impeachable offense, the question may arise of the president's responsibility for his people's misdeeds.
Here I think we have to remember that it is the president who must be found guilty of "high Crimes and Misdemeanors." A simple attribution to him of everything done by persons working under him is totally incompatible with the flavor of criminality, of moral wrong, in the quoted phrase. No chief of any considerable enterprise could pass such a test.
At the other extreme, it goes without saying that the president (like anybody else) is totally responsible for what he commands, suggests, or ratifies.
The difficult area is in between, the area of "negligence." I would find it impossible to qualify simple carelessness in supervision as a "high Crime or Misdemeanor"; perfect freedom from negligence is for the angels. At this point, however, the general law furnishes us with a valuable concept. When carelessness is so gross and habitual as to be evidence of indifference to wrongdoing, it may be in effect equivalent to ratification of wrongdoing. If I drive my car in an utterly reckless manner, and someone is injured, the case is not merely that I have been guilty of "negligence," but that I have so behaved as to show indifference to whether somebody got hurt or not. Gross and habitual indifference of this kind is more than mere negligence, and might well be held to amount to impeachable conduct.
Here, as in so many cases, everything depends on what the evidence in a case actually shows, but these are the right lines along which to sort out the evidence.
Good-Faith Belief in the Rightness of an Act
This concept has figured in this book at several points, in the discussion of particular offenses. Belief in the lawfulness or rightness of an action, in order to be a defense, must be such belief as a reasonable person could hold. A reasonable man could think selective impoundment of funds both lawful and right, but no reasonable man could think it right to use the tax system for partisan political purposes.
Here, again, Congress has an enormous role to play. A cleancut declaration, by Congress, that a given line of conduct is wrong, makes it much more difficult for a reasonable man to claim reliance on his own assessment of the matter. Congress has the power, within wide limits, to make presidential conduct criminal; where this was done, no subsequent president could be heard to say that he was not fully warned.
"Not all presidential misconduct is sufficient to constitute grounds for impeachment. There is a further requirement—substantiality." These words occur in the Conclusion to the House Judiciary Committee's Staff Report on Constitutional Grounds for Presidential Impeachment (the full citation is in Appendix A).
Undoubtedly this is true, but the concept is an extremely difficult one to handle. Does it mean "substantiality of the single offense" or "substantiality of all offenses proved, taken together"? Either alternative is dangerous. Should a president be impeached and removed when he has committed no single offense which would in itself justify removal? Would not an affirmative answer encourage the "stacking" of rather petty charges? On the other hand, would a president who has committed a number of offenses, offenses that, one by one, satisfy every criterion for impeachability except substantiality, not at some point have shown himself unfit for office?
To me, the first of these dangers is by far the greater, for it merges with fatal ease into the peril of an overall judgment of mere unfitness—quite outside the plain meaning of "high Crimes and Misdemeanors." The question will present itself in any particular case in highly concrete form. The answer, when answer must be given, must probably be to some extent political; law can lead us to the point where "substantiality" becomes the issue, but law cannot tell us what is "substantial" for the purpose of decision. We may justifiably hope that those who have to make this political judgment will see it as high-political, and not as having any connection with partisan politics, or with views on policy.
A Note on History
The phrase "high Crimes and Misdemeanors" comes to us out of English law and practice, starting (as far as we know) in 1386. It frequently figured in impeachment of officers. The English history seems to establish with some clarity that the English did not understand the phrase as denoting only common crimes, but in some sense saw it as including serious misconduct in office, whether or not punishable as crime in the ordinary courts. Beyond that, I have to confess that I can read no clear message. Sometimes the English cases seem to prove too much, treating as "high Crimes and Misdemeanors" petty acts of maladministration which no sensible person could think impeachable offenses in a president, or in anybody. This leaves us right where we were, so far as line-drawing is concerned. In many cases, "impeachment," a charge brought by the House of Commons, was not followed by conviction in the House of Lords, the finally responsible body; this makes the precedent a truncated one at best. Further, although many of the Framers of our Constitution undoubtedly knew in at least a general way of the English usage, and certainly borrowed the term "high Crimes and Misdemeanors" from that usage, it is hard for me to think that many of them, or many people at the state ratifying conventions, or many members of the late eighteenth-century American public, could have carried about, ever-present in their minds, much of the superabundant learning which in modern times has been developed on the subject. Nor does that learning, interesting as it is intrinsically, seem to me to eventuate in the unequivocal validation of any very precise view of the exact boundaries of the phrase's meaning.
If this history were to be canvassed here, this would be a very different (and much fatter) book—and I would be a very different (and probably much leaner) person. I have to say, on my own responsibility, that the English historical material I have seen does not seem to stand in the way of our working out, in any great case in our own times, a sensible concept of the meaning of "high Crimes and Misdemeanors," suitable to the spirit and structure of our Constitution.
All the American precedents are handily collected in the above-mentioned report by the staff of the Committee on the Judiciary of the House of Representatives, 93rd Congress, 2nd Session, Constitutional Grounds for Presidential Impeachment. But these precedents, too, fall far short of furnishing a well-rounded and well-supported answer to the question of the meaning of "high Crimes and Misdemeanors." There have been thirteen impeachments in all. Ten of them were of federal judges; four of these were acquitted, four were convicted, and two resigned, with the result that no Senate verdict was given. One senator was impeached; the Senate voted that it had no jurisdiction to convict a senator on impeachment, so that the case was dismissed without verdict. One secretary of war was impeached; he was acquitted on all Articles, but the force of the acquittal is clouded by the fact that an indeterminate number of senators may (or may not) have voted to acquit dominantly or wholly on the ground that the man had already resigned. The remaining case was that of President Andrew Johnson. He was impeached, substantially, for having removed the secretary of war, a holdover from Lincoln's administration, in alleged violation of a Tenure of Office Act passed by the Reconstruction Congress, and for attempting to bring disgrace and ridicule on Congress—itself a ridiculous charge. He was acquitted, but by a vote just one short of the two-thirds needful to convict; such an "acquittal'' is not a satisfactory legal precedent on "impeachable offense."
Now it is very plain that these American precedents speak with little clarity to new issues. Like the English precedents, they pretty clearly show a pattern of going beyond ordinary crimes for impeachable offenses: intoxication on the bench, for example, figures in several of the judicial impeachments. On the other hand, an acquittal blunts any precedent.
In the one presidential case, that of Johnson, the acquittal was almost certainly not on the facts, but on the belief that no impeachable offense had been charged—but with the weakness as precedent just mentioned. Moreover, the Johnson impeachment is, to say the least, by no means universally regarded today as a paradigm of propriety or of unimpassioned law.
On the whole, again, what this history really says is that no historical impediment exists to a sensible, reasoned treatment, right now, of the problem of the meaning of "high Crimes and Misdemeanors." The history of impeachment, like the history of most serious subjects, may conduce to underlying wisdom, but decision is for us, today.
Excerpted from Impeachment: A Handbook by Charles L. Black, Jr.
Copyright © 1974 by Yale University. Reproduced by permission of Yale University Press. All rights reserved.