Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery explains what the Constitution says about High Crimes and Misdemeanors, and why issues surrounding impeachment and removal are for Congress – and not courts – to decide. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media.
Much media attention is now focused on whether President Donald Trump or any of his associates are guilty of some crime involving obstruction of justice. As to the President himself, that question might be strictly academic; legal memoranda from the Justice Department’s Office of Legal Counsel (one dated 1973 and the other 2000) conclude that a sitting president cannot be indicted for a crime because a criminal indictment would cripple the president’s ability to fulfill his or her duties under Article II of the Constitution.
While associates of the President may be indicted (depending on where the evidence leads, of course), the larger concern for the President himself is whether anything he has done – or an accumulation of everything he has done – implicates the constitutional standard for impeachment and removal from office: “high crimes and misdemeanors.”
Interestingly, these words in the Constitution – “high crimes and misdemeanors” – follow two specific examples of impeachable offenses: treason and bribery (put all together, what the Constitution says is that an officer of the United States may be impeached and removed for committing “Treason, Bribery, or other high Crimes and Misdemeanors”). In the law, when a more general term (high crimes) follows more specific terms (treason and bribery), the general term is to be interpreted as meaning something of the same kind as those items specifically mentioned. For example, suppose that a law bans the use of “any saber, sword, dirk, dagger, knife, blade, or other dangerous instrument.” In analyzing the meaning of “dangerous instrument,” most lawyers and judges would look to the specific items listed before that general term to conclude that “dangerous instrument” must mean some kind of stabbing device.
Applying this principle (for the ambitious reader, it’s called – in Latin – e jusdem generis), it would seem that “high crimes and misdemeanors” means something on par with treason and bribery. That’s why most scholars agree that not just any crime will do; we’re probably talking about the kind of misdeed that represents a serious breach of the public trust. (Recall that the issue in the Bill Clinton impeachment was whether lying under oath about an extra-marital affair constituted such a misdeed.)
But this question (as much as lawyers will be involved in fighting about it) is more a political than a legal one. That’s because the U.S. Supreme Court, in a case called United States v Nixon (not as in Nixon the president, believe it or not) said that issues surrounding impeachment and removal are for Congress – and not courts – to decide. If and when Congress reaches such questions, the issue for members of Congress will be whether the allegations against the President – that he tried to get federal investigators to drop the Russian-collusion investigation and fired the FBI Director with Russia in mind – establish a serious breach of the public trust. It will be up to the House of Representatives to decide whether any constitutional charges (called Articles of Impeachment) should be brought; and if charges are brought, it will be up to the Senate to decide whether to remove the President from office (that would require a 2/3 vote).
Whatever decisions Congress might reach on these questions will not be second-guessed by any court of law. Our system is designed such that the President is answerable to Congress, which in turn is answerable to the people. Constitutionally, then, the fate of the President is in your hands.
LISTEN to Professor Beery on The Tom Sumner Program (at the 20 minute mark) May 23, 2017.