The One Word Alan Dershowitz Gets Wrong in the Impeachment Clause

By Clark D. Cunningham

A central argument of President Donald Trump’s impeachment defense is that the articles of impeachment should be dismissed out of hand because the president is not charged with a specific crime—or “criminal like behavior.” Emeritus Harvard law professor Alan Dershowitz has advocated a form of this argument for monthsthough not years—and is expected to make it before the Senate soon.

Dershowitz says his presentation before the Senate will draw on arguments made by Benjamin Curtis during the 1868 impeachment trial of Andrew Johnson. Curtis asserted, “when the Constitution speaks of ‘treason, bribery, and other high crimes and misdemeanors,’ it refers to, and includes only, high criminal offenses against the United States, made so by some law of the United States existing when the acts complained of were done.” The 110-page trial brief submitted by Trump’s legal team this week echoes this assertion, claiming that the “House Democrats’ Made-Up ‘Abuse of Power’ Standard Fails to State an Impeachable Offense Because It Does Not Rest on Violation of an Established Law.” Even though academic experts have rushed to reject this “bogus” argument as “constitutional nonsense,” it still could work, because, as a member of the New York Times editorial board put it, Dershowitz’s argument gives Republican senators an easy way to end the impeachment trial.

Previous critiques of the Dershowitz argument have focused on ways Congress has applied the impeachment clause over the past two centuries, impeachment trials before or at the time the Constitution was adopted and statements made by various constitutional framers. Those critiques are all worthy; however, the Dershowitz argument may have a flaw not brought out in any of them, an Achilles heel that one stroke may sever. If we examine the specific words of the Constitution—an analysis perhaps more congenial to Republican senators who praise an “original” approach to interpreting the Constitution—no one seems to be asking why the word “misdemeanor” appears in the list of impeachable offenses. The motion to dismiss may collapse if senators ask the Trump team if they are simply misreading 21st century meaning into the Constitution’s 18th century language.

Trump’s defense team seems to take the phrase “Treason, Bribery or other High Crimes and Misdemeanors” to mean that a president can be impeached for very serious crimes or less serious crimes. In any case, crimes. Such an interpretation reflects the modern meaning of “misdemeanor” as a petty offense that carries a lesser potential punishment than a felony. But why would the drafters of the Constitution stipulate that impeachment requires commission of a “high” crime if a president could also be removed for the lower bar of a petty crime? The answer may be that “misdemeanor” in the impeachment clause doesn’t refer to any kind of crime.

According to the Oxford English Dictionary, the oldest meaning of “misdemeanor” is “misconduct.” My review of a very large online database of texts from when the Constitution was drafted and ratified indicates that “misdemeanor” was used both in the sense of “petty crime” and “misconduct,” or “misbehavior,” in the Founding Era.

A 1773 newspaper excerpt from the papers of John Adams contains this quote: “If an office be granted to hold so long as he behaves himself well in the office, that is an estate for life, unless he lose it for misbehaviour; for it hath an annexed condition to be forfeited upon misdemeanor, and this by law is annexed to all offices, they being trusts; and misdemeanors in an office is a breach of trust.” (Emphases added.) A 1796 state court decision from South Carolina stated that a judge “is liable for misdemeanors in office, and subject to impeachment for misconduct if he misbehaved.” Notably, both of these examples—in which “misdemeanor” was used interchangeably with “misconduct” or “misbehavior”—refer to removing a public official for cause without any reference to commission of a crime.

In addition, both before and after ratification of the Constitution, state constitutions authorized removal from office using the word “misdemeanor,” again without reference to commission of a crime. The 1776 Constitution of Maryland provided that “the House of Delegates … may expel any member, for a great misdemeanor.” The 1790 Pennsylvania Constitution had an impeachment clause that tracked the U.S. Constitution’s almost word-for-word except that the list of impeachable offenses for state officials is shortened to only misdemeanor: “The governor, and all other civil officers under this commonwealth, shall be liable to impeachment for any misdemeanor in office.” The 1792 Kentucky Constitution had an impeachment provision virtually identical to that of Pennsylvania.

The proceedings of the Constitutional Convention strongly indicate that one of the most influential framers of the Constitution, James Madison, understood “misdemeanor” as having a different and broader meaning than criminal acts. In the waning days of the convention, on September 8, 1787, Virginia delegate George Mason moved to add “maladministration” to the existing list of impeachable offenses—at that point, only “Treason or Bribery.” Madison objected that “so vague a term [as maladministration] will be equivalent to a tenure during pleasure of the Senate.” Mason responded by withdrawing his motion and substituting “other high crimes and misdemeanors against the state.” Mason’s revised motion passed 8-3, which is how the “high crimes and misdemeanors” language got into to the Constitution.

The Trump defense team has seized on Mason’s substitution of “high crimes and misdemeanors” for “maladministration” as supporting its contention that impeachment must be based on commission of a crime. However, the story looks quite different if we—literally—turn the page. As reported on the very next page of the records, after Mason’s motion passed, Madison then argued (unsuccessfully) for changing the venue for impeachment trials from the Senate to the Supreme Court, saying that if the president can be impeached “for any act which might be called a misdemesnor [sic]”, the president “under these circumstances was made improperly dependent” on the Senate.

Madison’s statement seems to tell us two things: First, he did not see “misdemeanor” in the amended impeachment clause as a term with well-defined limits, as would be the case if it instead said statutory violations or crimes. Instead Madison suggested that many kinds of acts “might be called” a misdemeanor. Second, Madison saw inclusion of “misdemeanors” in the impeachment clause as giving the Senate greater discretion to remove the president than just the phrase “other High Crimes.” Madison’s motion to move the venue of an impeachment trial from the Senate, where he feared a president’s political opponents could misuse the wide latitude the word “misdemeanor” affords, to an assumed apolitical Supreme Court failed on a 9-2 vote. But the language of what a president can be impeached for remained, leaving the Senate with what Madison considered to be very broad discretion to remove a President for “any act which might be called a misdemeanor.”

In the end, both advocates and opponents of impeachment might be focusing on the wrong word, “crimes.” Abuse of power and obstruction of Congress, as alleged in the House’s articles of impeachment against Trump—even if not crimes—could well be considered “misdemeanors,” meaning “misconduct,” specifically misconduct in office. This could provide the basis for impeachment and removal. Ironically, it may be that Dershowitz was far more correct 22 years ago than he is today.