to capture all manner of "great and dangerous offenses" against the Constitution.[1]
Treason and bribery. Applying traditional tools of interpretation puts a sharper point on this definition of "high Crimes and Misdemeanors." For starters, it is useful to consider the two impeachable offenses that the Framers identified for us. "Treason" is an unforgiveable betrayal of the Nation and its security. A President who levies war against the government, or lends aid and comfort to our enemies, cannot persist in office; a President who betrays the Nation once will most certainly do so again. "Bribery," in turn, sounds in abuse of power. Impeachable bribery occurs when the President offers, solicits, or accepts something of personal value to influence his own official actions. By rendering such bribery impeachable, the Framers sought to ensure that the Nation could expel a leader who would sell out the interests of "We the People" for his own personal gain.
In identifying "other high Crimes and Misdemeanors," we are guided by the text and structure of the Constitution, the records of the Constitutional Convention and state ratifying debates, and the history of impeachment practice. These sources demonstrate that the Framers principally intended impeachment for three overlapping forms of Presidential wrongdoing: (1) abuse of power, (2) betrayal of the nation through foreign entanglements, and (3) corruption of office and elections. Any one of these violations of the public trust justifies impeachment; when combined in a single course of conduct, they state the strongest possible case for impeachment and removal from office.
Abuse of power. There are at least as many ways to abuse power as there are powers vested in the President. It would thus be an exercise in futility to attempt a list of every abuse of power constituting "high Crimes and Misdemeanors." That said, impeachable abuse of power can be roughly divided into two categories: engaging in official acts forbidden by law and engaging in official action with motives forbidden by law. As James Iredell explained, "the president would be liable to impeachments [if] he had … acted from some corrupt motive or other."[2] This warning echoed Edmund Randolph's teaching that impeachment must be allowed because "the Executive will have great opportunitys of abusing his power." [3] President Richard Nixon's conduct has come to exemplify impeachable abuse of power: he acted with corrupt motives in obstructing justice and using official power to target his political opponents, and his decision to unlawfully defy subpoenas issued by the House impeachment inquiry was unconstitutional on its face.
Betrayal involving foreign powers. As much as the Framers feared abuse, they feared betrayal still more. That anxiety is shot through their discussion of impeachment—and explains why "Treason" heads the Constitution's list of impeachable offenses. James Madison put it simply: the President "might betray his trust to foreign powers."[4] Although the Framers did not intend impeachment for good faith disagreements on matters of diplomacy, they were explicit that betrayal of the Nation through schemes with foreign powers justified that remedy. Indeed, foreign interference in the
- ↑ 2 Farrand, Records of the Federal Convention at 550.
- ↑ Quoted in Background and History of Impeachment: Hearing before the Subcomm. On the Constitution of the H. Comm on the Judiciary, 105th Cong. 49 (1999) (hereinafter "1998 Background and History of Impeachment Hearing").
- ↑ 2 Farrand, Records of the Federal Convention at 67.
- ↑ Id. at 65-66.
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