What Is Impeachment?
In the U.S., impeachment is a constitutional process by which Congress can remove high officials, including the president, the vice president, federal judges, and Cabinet members, from office.
The Americans who fought in the Revolutionary War had a clear sense of the dangers of – and how to combat – a tyrannical, badly functioning, negligent, or incapacitated official in power. They foresaw U.S. civil officers as human beings prone to the same harmful tendencies and disabilities as the British king and his minions.
The remarkably well-educated American victors thoughtfully adapted British law to suit the needs of the new United States. They’d debated, reworked, and polished language to forge a constitution containing what we know as the “Impeachment Clause.” The new American statesmen wanted a noncriminal, orderly process – not “tumults and insurrections” – to deal with the “misconduct of public men,” as they focused on injuries done to “society itself.” Related constitutional clauses that describe the process give Congress (the legislative branch of government) sole power to impeach and remove a badly performing high official.
The U.S. impeachment process can result in the removal – but not the criminal punishment – of a U.S. public official who would cause substantial harm: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const. Art. II, Sec. 4.
The special phrase “high Crimes and Misdemeanors” is lifted directly from ancient British impeachment law and forms the cornerstone of the U.S. impeachment process. It is a term (legally, a “term of art”) that bears no resemblance to what we know as “crimes” or “misdemeanors” today. It requires no charging of a crime, no intent to do a wrong, and no lawbreaking. When presenting a case for impeachment, Congress may charge civil officers as acting with intent, treachery, criminal misconduct, and law-breaking, but the Constitution requires no proof of such – none -in order to impeach.
The United States Congress has impeached and convicted officials regardless of their mental state – even a person conceded as “insane,” in the words of the 19th century, as well as persons capable under the law of forming intent. Congress has also impeached calculating, treasonous, corrupt, swindling, or profiteering officials who could substantially harm us.
While many of these stories involve crooks and swindlers who intentionally betrayed trust, sexually assaulted their employees, bribed, stole, sold out their country to enhance the value of their vast landholdings, violated America’s foreign policies, fomented war, covered up misdeeds, obstructed justice, committed perjury, and tampered with witnesses, the key factor in considering the impeachability of public officials for “other high Crimes and Misdemeanors” is the harm they can cause; it’s not the motive or intent of the official. The greater the potential for harm, the greater the case for impeachment and removal.
This book traces American impeachment history from the country’s founding to today, using the 19 cases of U.S. impeachment of judges, a cabinet member, a senator, and presidents, plus other important examples of impeachment activity that did not reach the stage of formal House impeachment. But behind the history of the Impeachment Clause in the United States lie centuries of British law and legal practice related to impeachment, which greatly influenced the Founding Fathers’ thinking as they created our system of government laid out in the Constitution. Our foundational documents, including the Constitution and its phrase “high Crimes and Misdemeanors,” are interpreted by looking to the thinking – that is, the intent – of the Founding Fathers and framers of our country’s foundational documents.
So, while it’s important to understand that harm to society is the significant element emerging in the history of U.S. impeachment cases, it’s equally important to know what the Founding Fathers’ intentions were as they debated, crafted, and finalized the Constitution’s impeachment clause. The Constitution was written and adopted at a national convention in Philadelphia in 1787 and then became effective in 1788 as a result of votes in state ratifying conventions. The Founding Fathers recorded for posterity their intent to adapt the British law of impeachment, as they displayed-in articles, books, argument, and advocacy at Constitutional Convention debates and then on the floor of Congress – a sophisticated understanding of British history, law, and terminology adapted for use in American impeachment proceedings.
Radnofsky is an attorney and author of “A Citizen’s Guide to Impeachment.”