constitutional-law us-constitution
What is the meaning of “High crimes and misdemeanors”
<p>I have searched the internet for a coherent statement of the meaning of “high crimes and misdemeanors”, especially in the context of presidential impeachment. I have not been very successful. Summarizing the findings: the wording came after much argument and was finally just lifted from British law, British law appears to have taken an inclusive view as to what was impeachable (e.g. incompetence, drunkenness, ...), “high” means that offenses target the state (as in high treason).</p>

<p>Beyond that, I have no information. Pathetic. This is partly because most resources I found espoused a very partisan view of this contentious issue (e.g. what does Ann Coulter think in 2018 versus 1998).</p>

<p>Is there any reliable, timeless(I assume that this phrase is an example of “dead constitution”) interpretation? For example, what is a misdemeanor in this context? Presumably not a crime as crimes are separately treated in the phrase. </p>

<p>Some say that impeachment is “what congress wants it to be” but I am inclined not to accept this, especially if an impeachment trial is subject to judicial review (is it?)</p>

<p>I am ready to read so references are welcome.</p>

<p>This is a non-justiciable political question. <em>See <a href="https://supreme.justia.com/cases/federal/us/506/224/" rel="noreferrer">Nixon v. United States</a></em>, 506 U.S. 224 (1993) (a case involving a federal judge with the surname Nixon, not the U.S. President who resigned on August 8, 1974; Nixon at the time of his conviction and removal from office was a federal district court judge in Mississippi).</p>

<p>In other words, it means whatever the U.S. House of Representatives, in voting on the impeachment, and the U.S. Senate, in trying the impeachment, decides it means. </p>

<p>But, since U.S. Senate trials of Presidential impeachments must be presided over by the Chief Justice of the United States (<em>see</em> U.S. Constitution, Article I, § 3, clause 6), so that particular judge's opinion regarding what it means may have some influence on the proceedings. The procedures aspects of an impeachment set out in that clause states that:</p>

<blockquote>
  <p>The Senate shall have the sole Power to try all Impeachments. When
  sitting for that Purpose, they shall be on Oath or Affirmation. When
  the President of the United States is tried, the Chief Justice shall
  preside:</p>
  
  <p>And no Person shall be convicted without the Concurrence of two thirds
  of the Members present.</p>
</blockquote>

<blockquote>
  <p>Is there any reliable, timeless(I assume that this phrase is an
  example of “dead constitution”) interpretation?</p>
</blockquote>

<p>The <a href="http://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.pdf" rel="nofollow noreferrer">Black's Law Dictionary (4th ed.)</a> defines <em>High crimes and misdemeanors</em> (in its entry for <em>Crimes</em>) as </p>

<blockquote>
  <p>immoral and unlawful acts as are nearly allied and equal in guilt to
  felony, yet, owing to some technical circumstance, do not fall within
  the definition of "felony"</p>
</blockquote>

<p>(citing U.S. cases).</p>

<p>Also, searching for "<em>High crimes and misdemeanors</em>" at <a href="https://www.leagle.com/leaglesearch" rel="nofollow noreferrer">leagle.com</a> displays decisions involving that term. Although I am unsure whether any of the search results elaborates on the definition, one can certainly identify how the term relates to other concepts. </p>

<p>For instance, <a href="https://www.leagle.com/decision/infdco20180726b59" rel="nofollow noreferrer"><em>District of Columbia v. Trump</em>, (Civil No. PJM 17-1596; Jul. 25, 2018)</a> in its footnotes 23 and 31 reproduces a Constitutional provision which mentions the term. Locating where footnote 23 is referenced in the court decision, it reads that that article of the Constitution "<em>already addresses the crime of bribery, making it an impeachable offense</em>". Thus, one can infer that bribery is one example of <em>high crimes and misdemeanors</em>.</p>

<blockquote>
  <p>Some say that impeachment is “what congress wants it to be” but I am
  inclined not to accept this</p>
</blockquote>

<p>That notion does not seem far-fetched. See <a href="https://www.leagle.com/decision/1993730506us2241715" rel="nofollow noreferrer"><em>Nixon v. U.S.</em>, 506 U.S. 224-227 (1993)</a>, stating that "<em>On May 10, 1989, the House of Representatives adopted three articles of impeachment for high crimes and misdemeanors.</em>". And, going back to <em>District of Columbia v. Trump</em> ruling, the same paragraph referring to footnote 23 depicts as </p>

<blockquote>
  <p>"highly unlikely that the Framers would have intended bribery to be
  both an impeachable offense and, at the same time, an activity
  Congress could consent to when a foreign government donor is involved"</p>
</blockquote>

<p>which reinforces the notion that the Congress can determine --by consenting-- that certain act is not an impeachable offense, and hence not a high crime/misdemeanor either.</p>

<p>One of the main points I intend to make here and in other answers is that legal dictionaries like the Black's Law Dictionary and other free, online resources such as leagle.com can take you far when you need to conduct legal research.</p>

<p><strong>Edited to add reference</strong> (per OP's comment 8/10/2018)</p>

<p>Two days after answering this question, libertylawsite.org released an <a href="http://www.libertylawsite.org/2018/08/08/the-original-meaning-of-high-crimes-and-misdemeanors-part-1/" rel="nofollow noreferrer">article</a> that provides historical context as well as references on this topic.</p>

<p>The notion that an impeachment need not be (to borrow a phrase from a different setting and context) adequately premised is currently the the law of the land.  It's been decided in Nixon v US (1993) that impeachments are not justiciable.</p>

<p>However, given the fact that this decision is fairly modern and that its implications have not had any significant legal or historical consequences, it maybe challengeable.</p>

<p>One of the key consideration on which the decision rests is that the Constitution gives the Senate the "sole power" to try all impeachments.  </p>

<p>Nixon challenged the applicability of the word "sole" to the determination of whether a matter is justiciable.  His challenge was based on 2 considerations.</p>

<p>The court rejected both considerations.  However, the reason for rejecting the 2nd of these consideration is demonstrably false.</p>

<p>The court stated</p>

<blockquote>
  <p>Petitioner also contends that the word "sole" should not bear on the question of justiciability because Art. II, § 2, cl. 1, of the Constitution grants the President pardon authority "except in Cases of Impeachment." He argues that such a limitation on the President's pardon power would not have been necessary if the Framers thought that the Senate alone had authority to deal with such questions. <strong>But the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is "[a]n executive action that mitigates or sets aside punishment for a crime."</strong> Black's Law Dictionary 1113 (6th ed. 1990). Authority in the Senate to determine procedures for trying an impeached official, unreviewable by the courts, is therefore not at all inconsistent with authority in the President to grant a pardon to the convicted official. The exception from the President's pardon authority of cases of impeachment was a separate determination by the Framers that executive clemency should not be available in such cases.</p>
</blockquote>

<p>Thus the only reference given for this determination is a definition in a legal dictionary.  </p>

<p>This particular definition (and therefore the rejection) is premised on a wrong fact though.</p>

<p>A Presidential pardon can be given before a trial.  For example, <a href="https://en.wikipedia.org/wiki/Caspar_Weinberger" rel="nofollow noreferrer">Casper Weinberger</a> was pardoned before trial in December of 1992.  Nixon v US was heard in October of 1992 and decided in 1993.  </p>

<p>This gives room to challenge the decision as a whole.</p>

<p>Unless another reason is discovered for why "sole power to try" takes away the court's power to review constitutionality of this particular act of Congress, Madison v Marbury may apply.  And that would give the court the power to further interpret the meaning of "high crimes and misdemeanors."</p>
