Outside of the phrase “treason, bribery, or other high crimes and misdemeanors,” the Constitution does not offer much guidance on what we might consider an impeachable offense. Luckily, the Founders’ debates at the Constitutional Convention keep us out of total darkness, providing a few scenarios and principles under which impeachment would be warranted.
Less than a week and a half before the close of the convention, George Mason revisited the Impeachment Clause of Article II, Section 4, which at that point only named “treason and bribery” as impeachable conduct. Mason wondered, “Why is the provision restrained to treason and bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences,” such as “attempts to subvert the Constitution.” Seconded by Elbridge Gerry, Mason moved to amend the phrase to become “treason, bribery, and maladministration,” the latter word a reference to a term in Blackstone’s Commentaries on the Laws of England, with which every Founder was familiar.
According to Blackstone, the “first and principal” high misdemeanor was “maladministration of such high officers, as are in public trust and employment.” James Madison objected to the term, calling it “so vague” that it would subject the tenure of public officials to the “pleasure of the Senate.” Gouverneur Morris agreed with Madison, noting that “an election of every four years will prevent maladministration.” Accordingly, Mason withdrew “maladministration” in favor of “other high crimes and misdemeanors.”
From this account, we learn two key principles of impeachment: 1) mere “maladministration” will not satisfy constitutional grounds for impeachment; and 2) “other high crimes and misdemeanors,” at a minimum, sufficiently covered the “many great and dangerous offences” Mason contemplated, including “attempts to subvert the Constitution.”
Alexander Hamilton further clarified in Federalist No. 65 that Congress could impeach for “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Hamilton specified that the offenses would be primarily political in nature, “as they relate chiefly to injuries done immediately to the society itself.”
Merging these principles, Professor Michael Stokes Paulsen of the University of St. Thomas School of Law has described the scope of the impeachment power as encompassing “betrayal of a public trust,” “misuse of official power or office,” or “offenses against the body politic—against the nation, against the public interest, against the Constitution, against principles of general integrity.” Furthermore, as Paulsen notes, none of these offenses need be criminal because “the term ‘misdemeanors,’ in its original meaning, carried with it less the sense of a smaller or less serious criminal-law offense (which would be today’s common usage of the word) and more the broader sense of misconduct or misbehavior—literally failing to demean oneself properly (‘misdemeaning’) in the exercise of an official capacity or position.”
As for specific instances of impeachable conduct, the Founders did provide a few examples, such as the president “pardon[ing] crimes which were advised by himself,” or summoning the Senators of only a few states to ratify a treaty. They also named offenses which would not be impeachable, such as errors of judgment. According to Edmund Randolph, “No man ever thought of impeaching a man for an opinion. It would be impossible to discover whether the error in opinion resulted from a wilful mistake of the heart, or an involuntary fault of the head.”
For the most part, the rest is open to Congress’s interpretation of words like “subvert,” “great and dangerous,” and “public trust.” Congress also hits a snag when faced with a violation of public trust or other offense against the nation that Congress has endorsed. After all, how could Congress impeach George H.W. Bush for the tax increase he signed into law despite his infamous pledge, or F.D.R. for the forced relocation of approximately 80,000 American citizens into internment camps based on an order Congress authorized him to enforce. But in such cases, the people can either vote the president out of office or replace their congresspeople with candidates who will impeach.
In any event, impeachment is a decision for the people and their representatives, and it should be an informed decision, so it is our duty to understand how, when, and why this power ought to be employed.