Note from the Editor:

This article explores the meaning of the phrase "high . . . Misdemeanors" in the Constitution's Impeachment Clause. It concludes that the phrase denotes breaches of fiduciary duties.

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. Whenever we publish an article that advocates for a particular position, as here, we offer links to other perspectives on the issue, including ones opposed to the position taken in the article. We also invite responses from our readers. To join the debate, please email us at info@fedsoc.org.

The Constitution provides expressly for three methods by which federal government officials can be removed from office: (1) elected officials may be defeated for re-election, (2) members of Congress may be expelled,[1] and (3) judicial and executive officers may be removed on impeachment by the House of Representatives followed by trial and conviction by the Senate.[2]The Constitution contains no standards governing the first two methods of removal. For the third method, however, the official must be guilty of "Treason, Bribery, or other high Crimes and Misdemeanors."[3]

Modern commentators disagree over what the Founders meant[4] by the term "high . . . Misdemeanors." Some have argued the term comprehends only violations of the criminal law.[5]Others, most famously then-Representative Gerald Ford, have claimed it encompasses whatever Congress decides it encompasses.[6] Neither of these two views comports with the Constitution's text. If the Founders understood "high . . . Misdemeanors" to be limited to criminal violations, they could have omitted the words entirely and ended the sentence with "Crimes." If they understood "high . . . Misdemeanors" to grant unlimited discretion, they could have omitted the phrase "Treason, Bribery, or other high Crimes."

Other commentators contend the actual standard lies between these two extremes. The text implies this is correct, but commentators have not had great success determining what that standard is. Their formulations have tended to center on vague terms without discernible legal content, such as "unacceptable risk"[7] and "egregious abuse."[8]

Why have commentators not deduced a clearer standard? Perhaps politics has gotten in the way. Most modern commentary dates from the time of the Nixon and Clinton impeachments and seems influenced by whether or not the author wanted the incumbent president impeached and convicted. A more fundamental problem may be the methodology employed. Writers have attempted to deduce standards from charges in English and American impeachment cases decided from the fourteenth through the twentieth centuries; Professor Raoul Berger's authoritative 1973 book on the impeachment process is the premier example of this methodology.[9] However, most of the cases examined are not particularly probative of the Founders' understanding. Those decided after the Constitution was ratified,[10] of course, had no effect on their understanding. The value of early cases[11]—those arising before the eighteenth century—is compromised by the fact that the goals and values driving the impeachment process changed over time.[12] To recapture the founding generation's understanding of "high . . . Misdemeanors," we do best to limit ourselves to the events and literature of the eighteenth century. We should take heed of earlier proceedings only to the extent authors influential during the founding generation relied on them.

I must qualify in one respect my statement about the unsatisfying nature of prior explanations of "high . . . Misdemeanors." In a 1975 study, two practitioners, E. Mabry Rogers and Stephen B. Young (later Dean Young, of the Hamline University Law School), concluded that the term meant "breach of fiduciary duty."[13] I believe that conclusion to be precisely correct. This essay marshals additional sources to demonstrate why it is correct.

I. The Eighteenth Century British Background

In considering the thesis that "high . . . Misdemeanors" referred to fiduciary violations, we should draw no negative implications from the Constitution's use of traditional phrasing rather than the more modern formulation "breach of fiduciary duty." During the eighteenth century, the law of fiduciaries was still fragmented and without a uniform vocabulary. The phrase "breach of fiduciary duty" was very rare. To be sure, the law increasingly recognized a commonality underlying the fragments, but lawyers employed a variety of terms for fiduciary breaches, some specific and some more general. The most common broad term was "breach of trust."[14]

Despite the differences in vocabulary, eighteenth century British sources display a close connection between impeachment and violation of fiduciary duty. For example, Parliamentary articles of impeachment explicitly and repetitively described the accused's conduct as a breach of trust. Thus, the first article in the impeachment against Warren Hastings—the century's most spectacular proceeding of the kind—charged the defendant with acting "in direct Breach of his Duty, his Trust, and of existing treaties.[15] The articles of impeachment against the Earl of Stratford,[16] the Earl of Oxford,[17] and Lord Halifax[18] similarly charged breach of trust.

Popular secondary legal sources justified impeachment as arising from breach of trust or in similar fiduciary terms. Blackstone's Commentaries begins its discussion of misprisions by observing that "THE first and principal [misprision] is the mal-administration of such high officers, as are in public trust and employment," which was "usually punished by the method of parliamentary impeachment."[19] Richard Wooddeson, Blackstone's successor in Oxford University's Vinerian Chair, wrote that "such kind of misdeeds . . . as peculiarly injure the commonwealth by the abuse of high offices of trust, are the most proper, and have been the most usual grounds for this kind of prosecution."[20]

To be sure, British authors popular in the eighteenth century frequently listed grounds for impeachment in addition to "breach of trust." This was because some of those grounds were criminal and other terms were available from fiduciary jurisprudence to describe the remainder. In fact, however, the non-criminal charges were invariably what we would think of as breaches of fiduciary duty. For example, Edward Coke's Institutes (written in the seventeenth century, but the British Empire's most used legal treatise until Blackstone's Commentaries appeared in 1765) recited a posthumous list of "high Misdemeanors" against Cardinal Woolsey.[21] William Petyt's Jus Parliamentarium, published in 1740, reproduced the charges against Woolsey,[22] as did an anonymous author's 1788 legal treatise entitled The Law of Parliamentary Impeachments.[23]Today we would recognize every item on the list as a breach of fiduciary duty. Petyt also summarized charges in the 1386 impeachment of William de la Pole; he did not enumerate every charge,[24] but rather focused on items congruent with fiduciary law: self-dealing, neglect, misdirection of funds, and misuse of the pardon power.[25]

John Comyns' Digest of the Laws of England[26] enumerated a series of "high crimes and misdemeanors."[27] The first consisted of violations of criminal law (i.e., "high crimes"), such as encouraging piracy and bribery. Here again, the non-criminal violations were all fiduciary breaches:

• acting outside authority, as by ratifying a peace not approved by the parties, using the Great Seal without permission, and issuing unlawful and irregular orders;
• self-dealing, such as purchasing royal lands for less than true value, purchasing and holding a plurality of offices, and acting for one's "own profit only";
• other sorts of disloyalty, such as recommending a prejudicial peace, endangering the navy, holding incompatible offices, and attempting to undermine the established religion;
• neglect, such as an ambassador failing in his duty to inform other ambassadors of decisions, and an admiral "neglect[ing] the Safeguard of the Sea";
• other breaches of the duty of care, such as delaying court proceedings, giving false information to the king, refusing to carry out one's duties, and failing to pursue instructions; and
• violations of the duty to account, such as "taking Money, &c. from a foreign Prince, without giving an Account for it," and selling goods taken when an admiral "for his own use without accounting for a tenth to others."[28]

As these examples show, grounds for impeachment were not limited to criminal infractions. Indeed, the anonymous author of Parliamentary Impeachments found it necessary to caution readers that crimes, as well as other sorts of malfeasance, could be impeachable offenses.[29]Nor, on the other hand, was mere political opposition a proper ground for impeachment. Although differences in political opinion doubtlessly motivated many impeachments, successful accusation and conviction demanded proof that the defendant had committed a crime or otherwise breached his fiduciary obligations.[30] The author of Parliamentary Impeachments summarized the grounds for impeachment by saying that, "in general, they arise from some neglect, or misbehavior in some office . . . or from some general misbehavior, affecting government, the safety of the King's person, or the general interest and welfare of his subjects."[31]

Characterization of an impeachable offense as a fiduciary breach answers a question that has puzzled scholars. In his treatment of the subject, Wooddeson wrote that "[i]mpeachments . . . are founded and proceed upon laws in being."[32] How, one might ask, can that be the case when Wooddeson himself listed grounds other than violation of the criminal law? The probable answer is that fiduciary rules were among the "laws in being."

II. Eighteenth Century American Sources

As is now widely acknowledged, fiduciary government (to the extent practicable) was one of the Founders' core political principles, one of the objectives that informed the drafting and adoption of the Constitution.[33] Fiduciary government was not their only core political value, but it certainly ranked within the top five.[34]

Leading participants in the drafting and ratification of the Constitution regularly connected impeachment with fiduciary violations. At the federal convention, Madison argued that an impeachment procedure for the President was necessary because:

it [was] indispensable that some provision should be made for defending the Community agst [sic] the incapacity, negligence or perfidy of the chief Magistrate. . . . He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers."[35]

Gouveneur Morris added that he "was now sensible of the necessity of impeachments. . . . [The President] may be bribed by a greater interest to betray his trust."[36] When defending the Constitution in South Carolina, Charles Cotesworth Pinckney pointed out that impeachment would be available for federal officers who "behave amiss, or betray their public trust,"[37] and his ally Edward Rutledge made a similar statement in the same context.[38]

Moreover, there are very many instances of members of the founding generation linking impeachment to breaches of specific fiduciary duties. Thus, at the Virginia ratifying convention, Edmund Randolph saw it as a remedy for dishonesty, disloyalty, and self-dealing.[39] George Nicholas and James Madison referred to it as a remedy for maladministration and violating the national interest,[40] and Patrick Henry as a response to "violation of duty."[41]

On the other hand, Founders made it clear that "high . . . Misdemeanors" were neither politically defined nor limited to criminal offenses. Edmund Randolph[42] affirmed that "No man ever thought of impeaching a man for an opinion,"[43] and the influential Federalist essayist Tench Coxe assumed that an officer could be impeached for conduct not interdicted by the criminal law.[44]

III. Conclusion

We best capture the meaning of the phrase "high . . . Misdemeanors" when we think of it as referring to breaches of fiduciary duty. High misdemeanors are not limited to commission of crimes, but they do not include mere political differences. While violations of the criminal law provide grounds for impeachment, high misdemeanors encompass breaches of the duties of loyalty, good faith, and care, and of the obligations to account and to follow instructions (including the law and Constitution) when administering one's office.

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Impeachment: The Constitution's Fiduciary Meaning of "High . . . Misdemeanors" Federalist Society Review, Volume 19

Click on this link if you want to read the footnotes. https://fedsoc.org/commentary/publications/impeach...

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January 30, 2020

Voices4America Post Script. Yesterday, the Republicans declared, if Trump does it, it is good for the nation. How did they/we go so wrong? I am posting this to show what a big deal paper in, of all places, the Federalist Society Review, said. Read and weep for our #Democracy #82%WantWitnesses