To End a Presidency

by Laurence Tribe

  Those interpretive battles persist to the present—partly because there’s never been a successful presidential impeachment. We have no clear precedent accepted by both the House and the Senate about what presidential conduct qualifies as “high Crimes and Misdemeanors.” To be sure, we can consider the articles of impeachment approved by the House against Andrew Johnson and Bill Clinton, as well as articles approved by the House committee investigating Richard Nixon. But the Nixon articles were never adopted by the House, and the Johnson and Clinton impeachments failed in the Senate. Although some senators publicly justified their votes in the Johnson and Clinton cases, most senators didn’t speak their minds—and the publicly available explanations don’t cohere into a single majority view of the Impeachment Clause. Even if they did, we’re skeptical that so-called “impeachment precedent” commands deference apart from its power to persuade future generations. Congress isn’t bound by its own prior decisions.

  This doesn’t mean we’re entirely at sea. A fair-minded study of the Constitution and our history does reveal some principled insights about the meaning of “high Crimes and Misdemeanors.” To appreciate them, we must try to interpret that phrase as though we stand behind a veil of ignorance—unsure about when the Impeachment Clause will be applied. If you can, put the current president out of mind. Imagine that your best friend and then your worst enemy might hold our highest office. What rules, in general, should decide when either of them could be impeached?

  In answering that question, it’s helpful—though less so than you might expect—to return to Convention Hall. As we’ve seen, the Framers originally adopted “mal-practice or neglect of duty”14 as the standard for impeachment. In late July, though, the Committee of Detail changed the standard to “Treason, Bribery or Corruption.” By narrowing the grounds for removal, the committee sought to address lingering concerns that the president would be too dependent on whoever had the power to impeach. Five weeks later and without explanation, another committee shortened the list to “Treason or Bribery.”

  For George Mason, this was a bridge too far: “Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences.” To solve this problem, Mason proposed adding the nonspecific term “maladministration” as a more general ground for removal. Elbridge Gerry seconded Mason, but James Madison objected: “So vague a term will be equivalent to a tenure during pleasure of the Senate.” Morris chimed in to suggest that a new presidential election every four years would suffice to “prevent maladministration.” Without any further debate or discussion, Mason then substituted “other high Crimes and Misdemeanors.” The Convention accepted this compromise and moved on.15

  And that was the whole discussion. Unlike many other facets of impeachment, the Framers devoted essentially zero time to selecting “high Crimes and Misdemeanors” as the applicable standard.

  Before we proceed, then, it’s worth emphasizing that this is a case where we should be modest about reliance on originalism. Few delegates at the Convention addressed impeachable conduct at all, and we don’t know whether the views of those who did are representative of all thirty-nine men who signed the Constitution. Further, if we look beyond Convention Hall to gauge original meaning, the definition of impeachable conduct was barely discussed at most state ratifying conventions. That absence is telling. Given the diversity of state impeachment practice, it’s likely that Americans around the country had divergent understandings of the Impeachment Clause that they ratified.

  Even individual Framers were at times inconsistent. Just two years after objecting to “maladministration,” Madison apparently reversed course. Speaking in the First Congress about presidential power, he opined that “the wanton removal of meritorious officers would subject [the president] to impeachment and removal” for “an act of maladministration.”16 It seems that Madison—a key player in the switch to “high Crimes and Misdemeanors”—didn’t assign enduring significance to his earlier concerns, if he remembered having raised them in the first place.

  Accordingly, if you’re told that the Framers definitely meant a particular offense to be impeachable (or not), your first reaction ought to be skepticism. More often than not, that sort of originalist hokum is just a rhetorical gambit meant to make a disputed judgment sound neutral and objective.

  Still, we have to start somewhere. And in interpreting the phrase “high Crimes and Misdemeanors,” the Convention records do shed some helpful light. The insights they offer can then be fleshed out by considering the text itself and the structure of the Constitution.

  There are three important points. The first is that nobody at the Convention objected to capturing “great and dangerous offences” beyond treason and bribery. This suggests a recognition that the scope of the Impeachment Clause had to match its broad purpose. At the very least, it’s apparent that in adding this phrase after “Treason” and “Bribery,” Mason didn’t have a particular set of offenses in mind. Nor was he using recognized shorthand for a well-defined list that he assumed everyone would immediately recognize. Rather, he chose an open-ended term that would allow Congress to impeach for many imaginable—and not yet imaginable—“great and dangerous offences.”

  In thinking about what types of offenses those might be, it’s useful to invoke ejusdem generis. While this may sound like a spell from Harry Potter, the reality is no less exciting: it’s a canon of legal interpretation. (Okay, maybe that’s less exciting.) Ejusdem generis says that if we list a series of items and then include a catchall phrase at the end, that phrase includes only things similar to the items that precede it. Courtesy of Justice Antonin Scalia and his coauthor Bryan A. Garner, here’s a helpful example of ejusdem generis: “If one speaks of ‘Mickey Mantle, Rocky Marciano, Michael Jordan, and other great competitors,’ the last noun does not reasonably refer to Sam Walton (a great competitor in the marketplace) or Napoleon Bonaparte (a great competitor on the battlefield). It refers to other great athletes.”17

  In our case, the relevant list is “Treason, Bribery, or other high Crimes and Misdemeanors.” Invoking ejusdem generis, we can presume that “high Crimes and Misdemeanors” are offenses of the same general type as treason and bribery. Treason causes the gravest possible injury to the nation and reflects a betrayal of the first order. Bribery is the ultimate corruption of office—an exercise of power for private benefit, not public good. Both offenses drastically subvert the Constitution and involve an unforgivable abuse of the presidency. It’s inconceivable that someone who committed these misdeeds could ever again be trusted with “the Executive Power.” Both offenses are also momentous: they have the capacity to inflict extraordinary harm on the nation, and the discovery that they occurred could disqualify any president as a viable national leader. To qualify as impeachable, offenses must share these traits.

  Treason and Bribery have one more thing in common: they require proof of intent. To impeach on these grounds, we must assess a president’s state of mind. In practice, that needn’t always involve a separate factual inquiry. Some abuses of power would be facially impeachable, because there’s no conceivable motive that would justify them. An order that the army kill all protesters at a peaceful rally in New York City would constitute such an abuse. But more often than not, we’d need to know why the president did what he did. Many otherwise lawful uses of executive power might be impeachable if—but only if—the president acted for impermissible reasons. For example, while the president can generally pardon criminals, fire the FBI director, and make false public statements, doing so as part of a conspiracy to obstruct justice is plainly impeachable. Motive matters in assessing whether the president acted corruptly or abusively.

  Given the many difficulties of proving intent, this requirement is often fatal to calls for impeachment. In Nixon’s case, it was only tape recordings of Oval Office conversations that incontrovertibly showed malice. Yet to borrow a phrase from commentator George Will, rarely is ther
e a “smoking howitzer” like the Nixon tapes.18 Instead, we ordinarily must infer the president’s state of mind from all relevant circumstances.

  A second source of insight into the definition of impeachable offenses comes from the Constitution’s drafting history. When the Framers replaced “maladministration” with “high Crimes and Misdemeanors,” they sought to narrow—not expand—the class of impeachable offenses. At the time, “maladministration” broadly encompassed gross incompetence, bad policies, and unwise personnel decisions. In contrast, “high Crimes and Misdemeanors” was understood as limited to serious misconduct that inflicted injury on the state itself. Mason and Madison thus rejected a term that allowed impeachment for strong differences over policy and personnel and replaced it with a rule of wrongdoing.

  On that score, use of the word high is revealing. In Britain, high treason involved a crime against the Crown—as distinguished from petit treason, the betrayal of a superior by a subordinate. The Framers knew this and deliberately chose to incorporate the word high as a limitation on impeachable offenses. We can safely treat that fact as important, because the Framers knew how to denote ordinary crimes when they wanted to do so. For example:

  • The Fifth Amendment requires grand jury indictment in cases of a “capital, or otherwise infamous crime.”

  • The Currency Clause empowers Congress to “provide for the Punishment of counterfeiting the Securities and current Coin of the United States.”

  • The Law of Nations Clause authorizes Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”

  • The Interstate Extradition Clause provides that “a Person charged in any State with Treason, Felony, or other Crime” who flees from one state to another shall be returned upon request.

  The Impeachment Clause thus stands out in the Constitution. By adding high before Crimes in this one provision, while excluding it everywhere else, the Framers plainly sought to capture a distinct category of offenses against the state.

  Unlike some scholars, however, we don’t assign any further meaning to this choice of language. While “high Crimes and Misdemeanors” was a term of art dating to 1386, and had thus accumulated centuries of intellectual baggage, there’s no reason to think the Framers had all that in mind. As Alexis de Tocqueville observed, the colonists—and then the Framers—transformed impeachment when they ripped it from its English roots. In America, this power was about political accountability and popular sovereignty, not criminal punishment and parliamentary supremacy. Those differences weaken the relevance of English practice. Moreover, it’s unlikely that Americans in the 1780s knew the details of four hundred years of technical English learning on “high Crimes and Misdemeanors.”

  This leaves our final lesson about conduct that justifies ending a presidency: impeachment is not meant to function like a bill of attainder. As we explained in Chapter 1, Parliament used these bills to declare that someone’s prior acts were crimes—and to impose punishment for those “crimes” without a trial or hearing. The Framers were so appalled by this practice that they forbade it at every level of government. In the same breath, they also barred ex post facto laws, which made illegal an act that was legal when committed—or which increased the punishment for a crime above the level authorized when the deed was done.

  At the Constitutional Convention, while explaining why impeachment must reach “great and dangerous offenses,” Mason observed that “bills of attainder which have saved the British Constitution are forbidden.”19 Unlike Parliament, Congress could not retroactively declare that particular presidential conduct was abusive or corrupt. Instead, it could impeach the president only for evil deeds identified as such ahead of time. Accordingly, Mason emphasized that the Constitution must use a broad definition of impeachable offenses to preserve Congress’s discretion.

  At even a glance, this reasoning appears inconsistent. How can a flexible standard for impeachable offenses be squared with the principle of fair notice that underlies the bill of attainder and ex post facto clauses? Professor Charles L. Black Jr. has offered a convincing solution. Reading the Constitution harmoniously, he concludes that the phrase “‘high Crimes and Misdemeanors’… 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.”20 What does this mean in practice? Black explains: “[We should] treat as impeachable those offenses, and only those, that a reasonable man might anticipate would be thought abusive and wrong, without references to partisan politics or differences of opinion on policy.”21

  Put simply, the Constitution doesn’t contemplate impeachment by ambush. In thinking about “high Crimes and Misdemeanors,” we must recall elementary norms of fair notice and just punishment. Judgments about which conduct justifies removal must be made in the present rather than by reference to the founding era (or any other period). This rule protects the president against impeachment for reasonable, good-faith errors. At the same time, it means that presidents may not plead ignorance of the norms and customs that now define constitutional governance.

  Pulling all this together, we can identify key elements of “high Crimes and Misdemeanors”: like treason and bribery, they involve corruption, betrayal, or an abuse of power that subverts core tenets of the US governmental system. They require proof of intentional, evil deeds that risk grave injury to the nation. Finally, they are so plainly wrong by current standards that no reasonable official could honestly profess surprise at being impeached.

  In short, when a president commits an impeachable offense, he has done something so awful that we must seriously consider removing him without waiting for the next election. We face that decision because the president has lost legitimacy and viability as our leader, and because we fear he’ll inflict further damage to our polity if he remains in power.

  Making these judgments requires a nuanced view of current circumstances, a realistic assessment of whether the president poses a continuing risk, and a substantive conception of how the chief executive may exercise power. The Constitution guides this inquiry but can’t answer it except at a very general level. When a leader is called to answer for his sins, case-specific variables swiftly overtake broad claims about the meaning of “high Crimes and Misdemeanors.” As we’ve seen before and will surely see again, every presidential implosion burns a different color.

  Based in constitutional text, structure, and history, these principles afford us a working definition of impeachable offenses. To refine that understanding, it’s helpful to consider a frequently asked question about “high Crimes and Misdemeanors”: Can presidents be impeached for misdeeds that aren’t crimes?

  Our analysis of that issue begins with one of US history’s greatest, weirdest villains.

  He did not throw away his shot. On July 11, 1804, Vice President Aaron Burr mortally wounded former Treasury Secretary Alexander Hamilton at a duel in Weehawken, New Jersey. The tale is now widely told, thanks to Lin-Manuel Miranda’s musical Hamilton. Less well known is what followed.

  As biographer Ron Chernow reports, “when a handwritten notice of Hamilton’s death went up at the Tontine Coffee House [in New York], the city was transfixed with horror.”22 The New York Supreme Court and Bank of New York were draped in black, and for a full month New Yorkers sported black armbands to mourn their fallen hero. On July 14, 1804, Hamilton’s two-hour funeral procession brought the city to a halt for a slow-motion spectacle of silent despair.

  And fury. As outrage persisted, New York and New Jersey indicted Burr for murder. Local papers damned the vice president as a heartless traitor and sadistic coward. His surreal confidence finally broken, Burr fled south to Georgia.

  You might think that this murder would at least raise a question of impeachment. But you’d be wrong: Congress never considered impeaching Burr. To the contrary, eleven US senators formally asked the governor of New Jersey to drop all charges. Thi
s was necessary, they explained, “to facilitate the public business by relieving [Burr] from the peculiar embarrassments of his present situation, and the Senate from the distressing imputation thrown on it, by holding up its President to the world as a common murderer.”23 (As vice president, Burr also served as president of the Senate.)

  Incredibly, the story only got stranger from there. Months later, Burr was forced back to the capital to preside over a highly partisan (and unsuccessful) impeachment trial for Justice Samuel Chase. As Chief Justice William Rehnquist has recounted, “this led one contemporary wag to remark that whereas in most courts the murderer was arraigned before the judge, in this court the judge was arraigned before the murderer!”24 In the end, Burr was never punished by Congress for killing Hamilton. New Jersey dropped its murder charge, and Burr was convicted by New York only for the misdemeanor offense of dueling.

  To modern sensibilities, this story is appalling. If Vice President Michael Pence were to kill Treasury Secretary Steven Mnuchin—and if Pence did not then resign—he would surely be impeached, removed from office, and charged with murder. Even given the culture of dueling that persisted in the early 1800s, Congress’s response to the Burr–Hamilton incident is profoundly disturbing. We have nothing good to say about it.

  Nonetheless, this tale gestures to an important difference between criminality and impeachability. Across history, not all crimes by federal officials have been seen as impeachable. This was as true for Burr in 1804 as it was for Richard Nixon in 1974, when the House Judiciary Committee rejected an article of impeachment for tax fraud. The inverse of this principle is also true: impeachment doesn’t require proof of a crime. Consider the case of Judge Alcee Hastings. In 1989, the Senate convicted and removed Hastings for conspiring to accept bribes—even though he had already been acquitted in a criminal trial of that same offense. (In an ironic turn of events, Hastings later ran for Congress—and won. On January 10, 2007, after years of service, he formally presided over the same institution that had impeached him two decades earlier.)