The American Impeachment Institution


The Watergate scandal in the United States introduced a new word—impeachment—to us. The newsmedia supplied us daily with information concerning the progress of the impeachment investigation of President Nixon. It also tried to explain what impeachment was and how the proceeding worked.
    Impeachment was nothing new, invented by Congress, in order to remove Nixon from office. It was designed in 1787 when the Constitution of the United States was drafted. This paper will try to briefly explain the background to why and how impeachment became an institution in American government. It does not attempt to be a complete analysis or answer all the questions involved, but merely to point out some of the problems intrying to decide the concept of impeachment. It is primarily concerned with the Presidency and does not take into account impeachment as a"tool" of removing federal judges, which it has mostly been used for.
    The House Judiciary Committee did in fact recommend the impeachment of President Nixon. As a result of his resignation, however, the House never impeached, and some of the questions about this institution still remain unanswered.





One of the characteristics that distinguish the governmental system of the United States from other governments is its separation of powers. In contrast to the English system—in which the ultimate power is in the hands of the Parliament—the American constitution promotes a balanced system of three different branches, where no single branch can have the absolute power.1 This division of power was mainly a reaction against the English power struggle over sovereignty between the King and the Parliament. The system was viewed as the best to protect the country from any kind of dictatorship.
    The executive branch2, or better known as the Presidency, is an office held for four years by one single person. The branch is independent in that it does not have to be in political harmony with the legislative body. The principle of separation of powers precludes any member of the executive department from having a seat in the legislature. The President appointshis cabinet members and other high officers in various departments and agencies. He also appoints the judges of the Supreme Court. The Presi-


1 David Coyle, "The United States Political System" 11, 19 (New York, New American Library, 1963).

2 The Constitution of the U.S., 92d congress, 2d session House Document No 92—157 (Washington, U.S. Govt. Print, 1972).

3 Usually subject to Senate approval.


Michael Madigan 63dent is the commander in chief of the armed forces and in charge of the foreign policy.
    The legislative branch4—the Congress of the United States—differs from a parliament mainly in the respect that it does not contain the executive. The Congress consists of the House of Representatives and the Senate. The House of Representatives has 437 members, representing the different populations in the States. In the Senate each State has two votes regardless of how many voters it has. This arrangement was invented forthe purpose of protecting the smaller States from being outvoted by the larger ones. The Congress has the legislative power to levy taxes on thepeople and to appropriate the money to pay for the government.
    The third branch is the judiciary: "The judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may . . . establish."5 The Supreme Court has assumed the power to review laws. This function of the Court is now accepted and it quite often declares new laws unconstitutional when they violate the Constitution of the United States.
    There are no clear lines separating the governmental function of one branch from another. To avoid that one branch tries to assume all power the Constitution was carefully designed to provide a "system of checks and balances". The President, for instance, can veto any act of Congress. The act then goes back to the Congress and cannot become law unless both houses pass it again by a two-thirds vote. The Congress can sometimes block many kinds of presidential action by refusing to provide the money. One special kind of check is the legislative non-judicial process called impeachment, which is the topic of this paper.



The Impeachment Process


"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."6
    An impeachment process is a two-stage procedure. The House of Representatives has "the sole Power of Impeachment"7. Usually a committee (the Judiciary committee) conducts an investigation of the offenses and reports on charges that might lead to impeachment. Where the committee concludes that one or more impeachable offenses are shown with sufficient clarity to justify trial, they report their charges to the House. The House can amend the recommendation but this is politically unlikely. These charges are called Articles of Impeachment. When the House pass one or more Articles of Impeachment by a single majority vote of those present, the person is impeached.8
    The Bill of Impeachment is then sent to the Senate for trial. "The Senate shall have the sole Power to try all Impeachments."9 The House will play the


4 U.S. Constitution, Art. I.

5 U.S. Constitution, Art. III sec. 1.

6 U.S. Constitution, Art. II sec. 4.

7 Ibid. Art. I sec. 2.

8 Charles Black, "The Impeachment Handbook", 7 (New Haven, Conn., Eastern Press Inc., 1974).

9 U.S. Constitution, Art. I sec. 3.


64 Michael Madiganrole of the prosecuting party at the Senate trial. To emphasize the fact that the Senate is taking on quite a different role fram its normal legislative one,the senators take a special oath.10 When the President of the United States11 is tried, the Chief Justice of the Supreme Court presides over the Senate.12
    The Senate hears evidence on each Article of Impeachment. Each side will call witnesses and introduce documentary evidence. The President does not have to appear in person. On any procedural question the Chief Justice will make a ruling, but any ruling may be reversed by a majority vote of the senators present.13
    After all evidence and arguments have been heard, the Senate has to vote. The vote is separate on each Article of Impeachment. If one or more of the Artices receive a vote of two-thirds or more, then the President is convicted, and judgment of conviction and removal from office is pronounced by the Chief Justice.14
    We conclude that in order to remove the President (or any civil officer) from office, he has to be both impeached for and convicted of the offenses charged.



The History of Impeachment


When the Framers15 of the Constitution of the United States met at the Constitutional convention in Philadephia 1787, their desire was to create a responsible and strong executive, but at the same time—having fresh in mind the tyranny of the King of England—to avoid a too powerful one. It was vividly discussed how safeguards against executive abuse and usurpation of power should be built into the Constitution. They strongly rejected the protection a plural-executive system provided.16 One delegate stated that under a plural-executive system "the opportunity of discovering with facility and clearness the misconduct of the person in the public trust, in order either to their removal from office, or to their actual punishment incases which admit of it, is lost".17 It was said that one single man would feelthe greatest responsibility and administer the public affairs best.18 Under the proposed Constitution the President "was of very different nature from a monarch. He was to be . . . personally responsible for any abuse of the great trust reposed in him."19 When there was only one man, "the public were never at a loss to fix the blame".20
    It was soon recognized that some kind of a check on the executive was


10 Ibid.

11 Not only the President, but all civil officers are subject to impeachment.

12 See n. 4.

13 Black, 12.

14 U.S. Constitution, Art. I sec. 3.

15 The delegates at the Convention are usually referred to as the Framers.

16 Farrand, "The Record of the Federal Convention of 1787", 66 3 vols., (New Haven, Yale Univ. Press, 1911).

17 Hamilton, "The Federalist", 442 (New York, The Knickerbocker Press,1888).

18 Farrand, 65.

19 Elliott, "Debates in the Several State Conv. on the Adoption of the Federal Const.", 4 vol., 74 (Washington, Elliott, 1836) 2 ed, 4 vol.

20 4 Elliott, 104.


The American Impeachment Institution 65needed. "The Executive will have great opportunities of abusing his power; particularly in time of war when the military force, and in some respect, the public money will be in his hands."21 Most of the delegates believed that the Constitution should provide for "punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused."22
    A specific provision making the executive impeachable was adopted although there were also arguments opposing the impeachability of the executive.23 One argument was that the President would periodically betried for his behavior by his electors and therefore should not be subject toany intermediate trial by impeachment.24 Another fear was that the executive would become too dependent on the legislature, giving them this weapon.25
    The impeachment institution itself was borrowed from England. Great Britain had served as "the model from which impeachment has been borrowed".26 No exact date can be given when the first impeachment occurred in England, but most writers seem to agree that the first cases took place during the 14th century.27
    Impeachment had two different roles in its early history. First it was a judicial proceeding used as a direct method of bringing to account the King's ministers and favorites.28 At this time these individuals were bytheir power and prestige more powerful than the courts and they might otherwise have been beyond reach. Secondly, impeachment was used as atool by the Parliament in the powerstruggle with the King. The long struggle by the Parliament to assert legal restraints over the will of the King ultimately reached a climax with the execution of Charles I in 1649 andthe establishment of the Commonwealth under Oliver Cromwell. In the course of that struggle, the Parliament sought to remove those of the King's ministers that most effectively supported him. One of the toughest executants of the royal policies was the Earl of Strafford. The House of Commons impeached him in 1642. As with many earlier impeachments the charge was damage to the state. The first Article of Impeachment alleged:29
    "That he . . . hath traiterously endeavoured to subvert the Fundamental Laws and Government of the Realms . . . and instead thereof, to introduce Arbitrary . . . and Tyrannical Government against Law."
    During the period from 1620—1649 over 100 impeachments were voted by the House of Commons.30 Some of these impeachments charged with high treason, as in case of Strafford, others charged with high crimes


21 2 Farrand, 67.

22 Ibid. 65.

23 1 Farrand, 22.

24 2 Farrand, 67.

25 Ibid., 66.

26 The Federalist, 408.

27 Simpson, "A Treatise on Federal Impeachment", 5 (Philadelphia Law Association of Philadelphia, 1916).

28 The House Judiciary Committee, "Constitutional Grounds for Presidential Imp.", 93rd congr. 2d. House Print (Wash., 1974), 4.

29 Ibid. 5.

30 The Judiciary Comm. 6.5—Svensk Juristtidning 1978


66 Michael Madiganand misdemeanors. The latter included both statutory offenses and non statutory ones. There were no impeachments during the Commonwealth (1649—1660). After this period there were very few cases of impeachments.
    The English impeachment institution was criminal in nature. It combined removal from office with criminal punishment. When the Framers adopted the institution they replaced the penal sanctions with removal alone.31
    Very little was said on the specific grounds for impeachment during the Convention. The original draft of the Constitution provided for removal upon impeachment for treason or bribery. Late in the Convention George Mason objected that these grounds were too limited: "Why is the provision restrained to Treason and Bribery only? Treason as defined in the Constitution will not reach many great and dangerous offenses. Hastings32 is not guilty of Treason. Attempts to subvert the Constitution maynot be Treason as above defined. — — — It is the more necessary to extend the power of impeachment."33
    Mason then moved to add the word "maladministration" to the other two grounds. James Madison, delegate from Virginia, objected that the term was very "vague" and was afraid it could be used at the pleasure of the Congress.34 Mason then withdrew "maladministration" and substitutedthe English phrase "high crimes and misdemeanors".35
    During the impeachment debate, the Framers were almost exclusively concerned with the Presidency. Shortly before the Convention adjourned they added, "Vice President and all civil officers of the United States", to Art. II sec. 4.36



High Crimes and Misdemeanors


In the final draft of the Constitution, Article II, section 4 provided 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."
    Despite the discussion at the Constitutional Convention, it is not clear today how the provision should be interpreted. Did the Framers intend to give the Congress unlimited power to impeach? Are the words "high crimes and misdemeanors" limited to criminal offenses only? Is impeachment a criminal proceeding in any sense? Is an impeachment and conviction reviewable by the courts?
    There are two sides with extremely different opinions on these matters. One side, as stated by Congressman Gerald R. Ford in the House 1970, claims that impeachment is not limited to a criminal offense, furthermore an "impeachable offense is whatever the House, with the concurrence ofthe Senate, considers it to be."37


31 Berger, 7.

32 Warren Hastings was the British Governor-General of India. He was impeached for "high crimes and misdemeanors" in 1787.

33 2 Farrand, 550.

34 Ibid.

35 Ibid.

36 2 Farrand, 552.

37 Berger, 56.


The American Impeachment Institution 67    The other side claims that impeachment is strictly limited to criminal offenses. This has been stated by James St. Clair, councel to President Nixon.
    The dispute is basically over the interpretation of "high crimes and misdemeanors". The first offense, Treason, is even defined in the Constitution Art. III, sec. 3:
"Treason against the States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."
    The second offense, Bribery, has not caused much dispute either. Although not defined in the Constitution, it has been given precise definitions through the normal processes of the common law system.
    This leaves us with the controversial "high crimes and misdemeanors". One approach is a literal interpretation of the words.
    In criminal law there is a difference between a felony and a misdemeanor. A felony is usually a graver crime, such as murder, rape, burglary, etc.,punishable by death or imprisonment. According to federal law it is any crime punishable by imprisonment for more than a year. A misdemeanor is hence a crime less than a felony which is not punishable by imprisonment. This tends to support the opinion that impeachment is limited to criminal offenses.
    The words "high crimes" have a different meaning from the word "crimes" itself. They are defined as crimes of infamous nature contrary to public morality, but not technically constituting felonies. High crimes are considered serious crimes.38
    Another approach would be to use the old rule "eiusdem generis". This rule says that when a general word occurs after a number of specific words, the meaning of the general word ought to be limited to the meaning or "spirit" of the specific word.39 Using this method "high crimes and misdemeanors" would again be limited to the criminal concept treason and bribery falls under.
    We know that the Framers borrowed the phrase from England and we may therefore examine the history of the expression. The phrase is first met—not in an ordinary criminal proceeding—but in an impeachment, that of the Earl of Suffolk in 1386.40 The charges against him involved both criminal and non-criminal offenses.
    The phrase does not reappear in impeachment proceedings until 1450. In that year Articles of Impeachment against the Duke of Suffolk charged him with several acts of high treason, but also with "high crimes and misdemeanors" including various offenses as advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of the laws, "procuring offices for persons who were unfit and unworthy of them" and "squandering away the public treasure".41
    At this time in history there was in fact no such crime as a "misdemeanor". It was in the sixteenth century that this word first entered as a category of ordinary crimes.42 The gap of 150 years that separates "misdemean-


38 Webster's third Int. Dictionary of English (Chicago, Lakeside press).

39 Black, 36.

40 Simpson, 86.

41 The Judiciary Comm. 6.

42 Berger, 64.


68 Michael Madiganor" from "high misdemeanor" shows a sharp division between the two. High misdemeanor (and high crime) was a category of political crimes against the state, where "misdemeanor" was a criminal offense against a private individual. After "misdemeanor" entered into the ordinary criminal law, it did not have the criterion of "high misdemeanor" in the parliamentary law of impeachment. Nor did "high crimes" and "high misdemeanors" ever enter into the general criminal law of England.43
    This leaves us with the conclusion that the phrase "high crimes and misdemeanors" actually means "high crimes" and "high misdemeanors" and appears to be "words of art", confined to parliamentary impeachment without any root in the ordinary criminal law.44
    As stated earlier in this paper, the Framers thought treason and bribery to be too limited. They first added the term "maladministration" which was considered too vague, and was then replaced by "high crimes and misdemeanors".45 One leading Framer stated:"Impeachment and offenses and offenders impeachable, come not in those descriptions, within the sphere of ordinary jurisprudence. They are founded on different principles, are governed by different maxims and are directed to different objects. — — — Impeachment is confined to political characters, to political crimes and misdemeanors, and to political punishment."46
    When the Framers borrowed the phrase "high crimes and misdemeanors" having a special common law meaning, it was expected that those terms would be given their common law content."Since 'high crimes and misdemeanors' are not defined by any statute in the United States . . . resort then, must be had either to parliamentary practice and the common law . . . or the whole subject must be left to the arbitrary discretion of the Senate."47



A Criminal Proceeding?


The question whether impeachment is a criminal proceeding is also disputed. The confusion is due to the fact that impeachment in England was designed to accomplish punishment as well as removal. A conviction could be followed by death, imprisonment or a heavy fine.48 Some impeachment provisions in the Constitution may also seem to point in the direction of a criminal proceeding, because they employ a criminal terminology. Besides Art. II, sec. 4, which has already been discussed, Art. III, sec. 2, provides that "the trial of all Crimes, except in cases of Impeachment, shall be by Jury". Mr. St. Clair says this clearly shows that impeachment was criminalin nature.
    When the Framers adopted the English Impeachment institution they intended to separate removal from punishment:
"Judgment in Cases of Impeachment shall not extend further than to removal. . . and disqualification to hold and enjoy any Office . . . but the Party convicted shall nevertheless be liable . . . to Indictment . . . and Punishment, ac-


43 Ibid. 65.

44 Ibid. 66.

45 See page 71.

46 Wilson, "Works", 2 vols., 1—324, (Cambridge, Mass., Harvard Univ.Press, 1967).

47 Story, "Commentaries on the Const. of the U.S.", #796, 5 ed 2 vols. (Boston, Little Brown, 1905).

48 Berger, 82.


The American Impeachment Institution 69cording to law."49
    Removal would enable the Government to replace an unfit officer with a proper person and the criminal punishment (if the impeachable offense was punishable at all) was left to a separate proceeding. Justice Story stated in 1830 that impeachment is "a proceeding purely of a political nature. It is not so much designed to punish an offender as to secure the state against gross official misdemeanors. It touches neither his person norhis property, but simply divests him of his political capacity."50
    When the Framers later drafted the Sixth Amendment (1791), they did not exempt impeachment as in Art. III, sec. 2:
    "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury,"51
    They did so because they presumably did not consider impeachment a criminal prosecution at all.52
    If impeachment were a criminal proceeding we would also have a problem with the "double jeopardy" in the Fifth Amendment: "nor shall any person be subject for the same offense to be twice put in jeopardy of lifeor limb."53
    A conviction or acquittal on impeachment would then bar a criminal indictment and a prior conviction or acquittal on indictment would bar an impeachment, for no man can be tried twice for the same offense. The Framers meant to have both impeachment and indictment available, not to put Congress to a choice between them.54


Judicial Review


When Congressman Gerald Ford said in 1970 that an impeachable offense is whatever the House considers it to be, the statement not only indicated the impeachment power to be illimitable, but also seemed to neglect the basic concept of the "checks and balances", which was so important to the Framers of the Constitution.
    It was never intended that the Congress should be the final judge of the boundaries of its own powers. In no Convention was a claim of illimitable power made with respect to any branch of the Government. In no records is there to be found that impeachment was to constitute an exception.55
    If Congress does not have a final say about the impeachment power who is then to decide? It is not within the limits of this paper to analyse this constitutional problem, but merely to give some examples of the arguments involved.
    Those who argue that it is up to the Senate alone to decide the scope of the impeachment power base their opinion usually upon Art. I sec. 3:
    "The Senate shall have the sole Power to try all Impeachments."
    The opposite side points out that impeachment, by Art. II sec. 4, is confined to only three grounds: "Treason, Bribery or other High Crimes and


49 U.S. Constitution, Art. I sec. 3.

50 Story, #803.

51 U.S. Constitution, Sixth Amend.

52 Berger, 338.

53 U.S. Constitution, Fifth Amend.

54 Berger, 338.

55 Berger, 122.


70 Michael MadiganMisdemeanors", which is the framework of the Senate's "sole power". The "sole power" does not enlarge these grounds.56
    They further claim support through Art. III sec. 2: "The Judicial Power (of the Supreme Court) shall extend to all Cases, . . .arising under this Constitution."
    The Supreme Court has stated:"It is the province and duty of the judicial department to determine . . .whether the powers of any branch of the government . . . have been exercisedin conformity to the Constitution; and if they have not, to treat their acts as null and void."57
    Even if assumed that the Senate is strictly limited to the three grounds mentioned, the problem of interpreting the scope of "high crimes and misdemeanors" remains. What is said earlier in this paper shows that when the Framers adopted "high crimes and misdemeanors" it had a limited and "technical" meaning to them. Madison rejected the word "maladministration" on the ground that it was "so vague" and would leave the interpretation to the pleasure of the Senate.58
    Another argument against judicial review is that the power to "try" and to issue a "judgment", is in itself judicial, and therefore the Supreme Court cannot substitute its judicial power for that of the Senate.59
    The best argument against review seems to be the fact that the trial of impeachment was originally entrusted to the Supreme Court.60 There were several reasons for changing it to the Senate. First, the Supreme Court was to try the President upon indictment after the trial of impeachment.61 One framer also felt that no other tribunal than the Senate could be trusted, and that the judges of the Supreme Court were too few in number and "might be warped or corrupted".62 Another delegate regarded the Supreme Court as improper to try the President because thejudges would be appointed by him and would therefore be partial to him.63



Impeachment Cases


Impeachment proceedings have been initiated in the House of Representatives more than fifty times since 1789.64 Many of these proposed impeachments have failed to come to a vote in the House, because the defendant died, resigned or received another appointment. The reasons for failure to impeach may also have rested upon failure of proof, political judgment, press of legislative business etc.
    Only thirteen officers have been impeached by the House. In two cases the officers resigned, so only eleven were actually tried in the Senate. In one case the Senate found themselves lacking in jurisdiction. Of the remaining ten, six officers were acquitted and four convicted.65 These four


56 Ibid., 110.

57 Ibid.

58 See page 71.

59 Berger, 116.

60 2 Farrand, 22.

61 2 Farrand, 500.

62 Ibid., 551.

63 Ibid.

64 Impeachment—Selected Material, 705, The House Jud. Comm. 93rd 1, House Document No 93-7 (Wash. U.S. Gov. Print, 1973).

65 The Jud. Comm. (Const. Grounds), 17.


The American Impeachment Institution 71convicted persons were all federal judges. Among the six officers acquitted were one cabinet member and President Andrew Johnson.
    Two of the convicted officers, Judge John Pickering and Judge West Humphreys, were impeached for what could be summed up as "behaving in manner grossly incompatible with the proper function and purpose of the office".66
    Judge Pickering was impeached in 1803, largely for intoxication on the bench. Three of the Articles alleged errors in a trial in violation of his trust and duty as a judge, the fourth charged that he had appeared on the bench during the trial in a state of total intoxication and had used profane language.67
    Judge Humphreys was impeached in 1862 on charges that he had joined the Confederacy without resigning his federal judgeship.68
    The impeachment and conviction of Judge Robert Archbald (1912) and Judge Halsted Ritter (1936) involved charges on the use of office for direct or indirect personal monetary gain.69
    Two of the impeachments have traditionally stood out from all the rest. They involved Justice Samuel Chase of the Supreme Court in 1805 and President Andrew Johnson in 1868, the two most powerful and important federal officials ever subjected to the process. Both were impeached by the House and both were acquitted by the Senate after sensational trials.
    Behind the Chase impeachment lay intensely partisan politics. The House alleged that he had permitted his partisan views to influence his conduct of two earlier trials he held when he was a circuit court judge. Responsible for the attacks were Jeffersonian Democrats who had also planned to impeach Chief Justice John Marshall if Chase were impeached.70 The acquittal of Justice Chase has been said to represent the triumph of justice over heated political partisanship.71
    The Andrew Johnson impeachment also grew out of a bitter partisan struggle over the implementation of Reconstruction in the South following the Civil War. President Johnson was charged with violations of the Tenure of Office Act; an Act which took away the President's authority to remove members of his own cabinet and specificly provided that a violation would be a "High Misdemeanor", as well as a crime. Believing the Act unconstitutional, Johnson removed his Secretary of war Edwin Stanton andwas impeached three days later.
    The first Article of Impeachment charged that President Johnson,"unmindful of the high duties of this office, of his oath of office and of the requirement of the Constitution that he should take care that the laws be faithfully executed, did unlawfully, and in violation of the Constitution and laws of the United States, order in writing the removal of Edwin M. Stanton, from the office of the Secretary for the Department of War".72
    Altogether there were eleven Articles of Impeachment adopted by the


66 Ibid., 18.

67 Ibid., 19.

68 Ibid., 20.

69 Ibid., 21.

70 Selected Materials, 705.

71 Berger, 234.

72 Trial of Andrew Johnson on Imp., House of repr. 1—6, 3 vols. (New York, Da Capo Press, 1868). 

72 Michael MadiganHouse. One charged that he had made inflammatory speeches that attempted to ridicule and disgrace the Congress.
    President Johnson was acquitted in the Senate trial, but only by one vote short of the two-thirds needed to convict.
    The removal of Stanton was more a catalyst for the impeachment than a fundamental cause. The Judiciary Committee had recommended impeachment three months earlier, which was defeated in the House.
    The Johnson impeachment, like the British impeachments of the King'sministers, basically involved the issue of the constitutional division between the executive and the legislative power; in this case, which of them should have the constitutional power to make and enforce the Reconstruction policy in the South.73





In drafting the Constitution of the United States, the Framers soon realized that some kind of "check and balance" on the executive branch was needed.
    Being familiar with the history of England, they adopted the English impeachment institution. Not very much was said about this institution during the Convention. The first provision drafted called for impeachment when a President committed treason or bribery. The Framers soon became aware of the fact that treason and bribery would not cover enough of the offenses a President could commit. On the other hand, giving the Congress unlimited power to decide what would constitute an impeachable offense would make the Executive dependent on the Congress, which was not in harmony with the separation of power principle.
    The Framers then settled for adding the old English phrase "high crimes and misdemeanors" to treason and bribery. This phrase was a "term ofart" and had been used in English Parliamentary impeachments since thelate 14th century.
    In interpreting the Constitution, "high crimes and misdemeanors" have been confused with the criminal offense "misdemeanor". However, "highcrimes and misdemeanors" actually means high crimes and high misdemeanors, and were offenses against the state, such as subversion of the Constitution, abuse of power, betrayal of trust, neglect of duty etc. It had no connection in history with "misdemeanor", which was an offense against the individual, triable by courts under the general criminal law.
    To limit impeachment to criminal offenses would require Congress to cover all areas where a President could commit wrongs with statutes, a task which would be impossible.
    Impeachment is also sometimes said to be a criminal proceeding. It is true that in England impeachment was criminal in nature. It combined removal with punishment. The Constitution also employs a criminal terminology in some provisions.
    It seems clear, though, that the Framers intended to separate removal from punishment. The important thing was to give the Congress power to remove from office, and disqualify an unfit officer. If the offense also constituted a crime, the offender could be tried criminally before a court.


73 The Jud. Comm., 19.


The American Impeachment Institution 73    The Senate has been given the "sole power to try all impeachments".This does not mean that the Senate necessarily has an unlimited power to decide what constitutes an impeachable offense. We know the Framers wanted a strong and independent Executive, and impeachment was a limited exception to the separation of powers. We know that every branch of government is confined to the limits drawn in the Constitution, and whether in this case the Senate or the Supreme Court should have the final sayis not agreed on.
    In 200 years, only four persons, all federal judges, have been impeached and convicted. When the Framers added that all civil officers could be impeached, this opened up a way to remove federal judges who hold their office for the rest of their life.
    In only one case has a President been impeached. The impeachment was then used the way the Framers most feared, as a means in a political powerstruggle between the Congress and the Executive. The President was not convicted and the purpose of the impeachment institution—toserve as a part of the checks and balances—triumphed over political partisanship.

Michael Madigan

The Constitution of the United States, 92d Congress, 2d sess. House Document (Wash., U.S. Gov. Print, 1972) No 92—157
Constitutional Grounds for Presidential Impeachment, Report by the Staff of the Impeachment Inquiry Committee (The House Judiciary Committee) 93d Cong., 2d session, House Committee Print (Wash., U.S. Gov. Print, 1974) Impeachment—Selected Materials, The House Judiciary Committee 93d.Cong. 1 s., House Document No 93—7 (Wash. U.S. Gov. Print, 1973) Trial of Andrew Johnson on Impeachment, The House of Repr. 3 vols., (New York, Da Capo Press, 1868)
Berger, Raoul, Impeachment: The Constitutional Problems, (New York, Bantam Books, 1974)
Black, Charles, The Impeachment Handbook, (New Haven, Eastern Press, 1974)
Coyle, David, The United States Political System and how it works, 2d ed., (N.Y. New American Library, 1963)
Elliott, Jonathan, Debates in the Several State Conventions on the Adoption of the Federal Constitution, 4 vols. (Wash., Elliott, 1836, 2d ed.)
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