What the Founders Told Us about ‘High Crimes and Misdemeanors’

John Yoo

The first week of the impeachment trial of Donald Trump focused on whether the Senate would call witnesses such as former national-security adviser John Bolton and Joe and Hunter Biden. But while they would attract lots of commentary and speculation, any new witnesses would not materially affect the final verdict. The critical constitutional question, which both parties have so far failed to persuasively answer, is this: Did the president commit a “high crime or misdemeanor” that justifies removal from office? And both the House accusers and the Trump defense team have sought to answer that question, upon which all depends, by reversing the polarity of their traditional constitutional positions.

Democrats have made no secret of their hostility to originalism, which interprets an ambiguous constitutional text by seeking the original understanding held at the time of its ratification. They went to war to oppose two Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh, because they feared Gorsuch and Kavanaugh would become the fourth and fifth votes of an originalist majority that might overturn Roe v. Wade or the gay-marriage cases. But when the topic became impeachment, the House managers wrapped themselves in the legitimacy of the Founding.

Today’s Democrats have probably never signed a document so replete with quotations from The Federalist Papers and the Constitutional Convention as the House Judiciary Committee’s December 13, 2019, impeachment report. Democrats suddenly favor the Founding because it lends some support to their claim that the standard of “Treason, Bribery, and other high Crimes and Misdemeanors” for presidential impeachment includes conduct that falls short of federal crimes. They are surely correct about the broad scope of impeachable offenses. Impeachment exists for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” Alexander Hamilton explained in Federalist No. 65. “They are of a nature which may with particular propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”

In particular, the House impeachment report argues that the “high Crimes and Misdemeanors” standard encompasses three types of offenses that are not in themselves criminal: “abuse of power,” “betrayal of the national interest,” and “corruption of office or elections.” Democrats have lately cited James Iredell’s explanation at the North Carolina ratifying convention that “the president would be liable to impeachments [if] he had . . . acted from some corrupt motive or other,” or if he was “willfully abusing his trust.” They neglect to observe that Iredell’s comments have limited value, since the North Carolina convention rejected the Constitution, but we should forgive them their lack of familiarity with the Framing materials — they are like a kid learning to ride a bike for the first time.

Trump’s defense team, meanwhile, has erred even more egregiously in the opposite direction. While the White House has broken all records in appointing originalist judges, its defense team has adopted a non-originalist approach that could have made Justice William Brennan chuckle. “By limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the Framers restricted impeachment to specific offenses against ‘already known and established law,’” proclaims President Trump’s January 20, 2020, Trial Memorandum, without producing any statement from a leading Founder, during the drafting or ratification of the Constitution, that limits “high Crimes and Misdemeanors” to criminal acts. Instead, the brief makes much of the fact that the impeachment clause proposed by George Mason at the Constitutional Convention would have made a president removable for “Treason, Bribery, or Mal-administration.” When the Convention replaced “Mal-administration” with “high Crimes and Misdemeanors,” the president’s defense team suggests, it meant to remove not just policy disputes from the list of impeachable offenses, but also anything short of a crime. That, of course, does not logically follow, nor do any Founders appear to have understood “high Crimes and Misdemeanors” as limited solely to crimes. Indeed, that makes little sense, as no crimes would have existed until Congress came into being and chose to create a criminal code, which it did not do in any significant measure for decades.

Instead, the president’s team makes arguments on the meaning of “high Crimes and Misdemeanors” that resemble the methods used by the justices who have steadily expanded individual rights in ways that offend conservatives. For example, Trump’s brief relies heavily on our present-day understandings of the relationship between the president and Congress, and on the impeachments of Andrew Johnson and Bill Clinton. Any good originalist would concede, however, that precedent from 80 or 210 years after the Founding cannot reflect the original meaning of the constitutional text, and that a defense of Trump that relies solely on impeachment’s potential to weaken the presidency cannot overcome the explanations of the meaning of “high Crimes and Misdemeanors” offered by the Founders themselves during the battle over the Constitution’s ratification.

A careful originalist review of the evidence left by the Founders supports the president’s acquittal, even assuming all of the facts alleged by the House to be true. But that is not to say that, if both the House managers and the president’s defense team had delved more deeply into those explanations, they wouldn’t have found far more support for their respective arguments.

Democrats, for example, could have found more ammunition in the Founders’ understanding of the question of abuse of the power over foreign affairs. President Trump’s defenders have argued that Congress cannot impeach a president for the exercise of a power constitutionally assigned to the executive, and everyone agrees that the president is the “sole organ” of the nation’s diplomacy, as Chief Justice John Marshall once put it. But if the Democrats had done some historical research themselves, they would have discovered discrete moments during the ratification battle when presidential abuse of the foreign-affairs power arose.

The leading such moment comes from Virginia, which held the critical state convention to ratify the Constitution — it barely passed, 88–80 — featuring the leading statesmen of the day. Anti-Federalists at the Virginia convention claimed that presidents might conspire with senators to betray the public trust to foreign powers. Patrick Henry, the Revolutionary War governor and leading Virginia political figure, suggested that countries might bribe the president and the Senate to give away valuable trading rights or territory by treaty. “Yes, you can impeach [the president] before the Senate,” Henry admitted. But “a majority of the Senate may be sharers in the bribe. Will they pronounce him guilty who is in the same predicament with themselves?” Anti-Federalists cited as an example the failed Jay–Gardoqui Treaty, which would have given American ships favored trading access to the Spanish Empire’s foreign ports in exchange for allowing Spain the exclusive right to navigate the Mississippi River for 25 years. To Virginians, this treaty would have sacrificed the national interest in favor of the mercantile interests of New England and the Atlantic states.

James Madison led the defense of the Constitution. He responded directly to Henry that Congress could impeach a president for a treaty that sacrificed the public good to the narrow interests of a group of states or of the president himself. “Were the President to commit anything so atrocious as to summon only a few states [to approve a treaty], he would be impeached and convicted,” Madison declared, “as a majority of the states would be affected by his misdemeanor.” Fellow Federalist George Nicholas added that the British Parliament could use impeachment “for the punishment of such ministers as, from criminal motives, advise or conclude any treaty which shall afterwards be judged to derogate from the honor and interest of the nation.”

House Democrats could have used this episode to argue that the Framers specifically contemplated the kind of abuse of power at issue in the Ukraine mess. In the critical Virginia convention, defenders of the Constitution explained that “high Crimes and Misdemeanors” could encompass a president’s use of the treaty power to serve the narrow interests of a small group of states at the expense of the broader national interest. Clearly, such a treaty would not violate any federal criminal law, then or now. Further, the Constitution assigns the making of all treaties — with the advice and consent of the Senate — to the president. Madison himself argued that, even when he uses that power within the terms of the Constitution, if he abuses it the president has created grounds for his impeachment and removal. In the case of the Jay–Gardoqui treaty, the president had not even acted purely for personal benefit — he’d merely placed sectional or partisan interests above the national interest — and Madison had agreed that he’d committed an impeachable offense.

On the other hand, Trump’s defense team could have drawn equal, if not greater, support from the historical record of the Founding. An initial close reading of the Constitution’s text suggests that “other high Crimes and Misdemeanors” must have a similar nature to “Treason” and “Bribery,” since they are included in the same list and, crucially, linked with an “other.” If the clause had read “Treason, Bribery, and high Crimes and Misdemeanors,” without the “other,” the scope of offenses covered by impeachment might be much broader. Other parts of the Constitution reinforce the idea that the phrase “high Crimes and Misdemeanors” limits impeachment to serious offenses. Article I immunizes members of Congress from arrest when Congress is in session except for “Treason, Felony, and Breach of the Peace”; it seems that felonies or breaches of the peace do not amount, alone, to “high” crimes. Article IV requires states to extradite fugitives charged with “Treason, Felony, or other Crime.” This approach does not answer the question of what treason, bribery, and other high crimes and misdemeanors should have in common, only that we should read the catch-all as including only offenses of a similar gravity.

Where the Framers discussed high crimes and misdemeanors, they cited examples of abuse of power that harm the nation at a level as serious as Treason and Bribery. At the Constitutional Convention, Madison discussed cases that would require presidential removal. “Some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate,” he declared. He did not believe that elections held every four years would provide a strong enough safeguard. “[The president] might lose his capacity after his appointment,” Madison worried. Or worse yet, “he might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Edmund Randolph supported his fellow Virginian because “the Executive will have great opportunities of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands.” Without impeachment, Randolph predicted, the people would have to resort to “tumults & insurrections” to turn out such a president.

The Virginia convention is also instructive in this regard. In the debate between Henry and Madison, neither raises examples of minor exercises of the foreign-affairs power. Instead, they discuss treaties, such as the Jay–Gardoqui treaty, that threatened to limit the expansion of the nation westward, one of the critical national interests of the time. Even Henry conceded that impeachment would not apply because of bad motives alone. “No man ever thought of impeaching a man for an opinion,” he said. “It would be impossible to discover whether the error in opinion resulted from a willful mistake of the heart, or an involuntary fault of the head.”

Ultimately the best argument in the president’s defense from the Framing comes from the importance of the political process. First and foremost, the Framers believed that elections and the other branches of government would impose the primary restraint on the executive. A president intent on bribery, treason, or other high crimes and misdemeanors would need the cooperation of the House and Senate to succeed in his plans, through either funding, legislation, or the approval of treaties and appointees. In such cases, the Framers hoped, the separation of powers would make it difficult for the president to execute any nefarious designs. “The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others,” Madison wrote in Federalist No. 51. “Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place.” By pursuing their own self-interest, the other branches of government are meant to check any undue aggrandizement of power by the president.

Anti-Federalists worried that senators might have a political incentive to block impeachment when they had blessed executive conduct, whether by consenting to a damaging treaty or by confirming a traitor to office. Federalists argued that House impeachment would impose enormous political pressures on senators to try a president in good faith. But even if the Senate failed in its duty, the people would still have their say: By rejecting a president’s campaign for reelection, the people would render their own verdict. The Framers’ electoral check itself reveals the hollowness of Democrats’ ongoing impeachment quest, given that the next presidential election is just months away.

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