The Common Misconception About ‘High Crimes and Misdemeanors’
“High crimes and misdemeanors” is surely the most troublesome, misleading phrase in the U.S. Constitution. Taken at face value, the words seem to say that impeachable conduct is limited to “crimes”—offenses defined by criminal statutes and punishable in criminal courts. That impression is reinforced by the fact that the phrase follows the obviously criminal “treason” and “bribery” in Article II’s list of the kinds of conduct for which the “President, Vice President and all civil officers” may be impeached.
But this is not, in fact, what the Constitution requires. “High crimes and misdemeanors” is not, and has never been, limited to indictable criminality. Nonetheless, despite centuries of learning on the point, there the phrase sits, begging to be taken at its delusory face value.
Accordingly, in nearly every significant American impeachment since 1788, the defenders of the impeached official—whether president, judge, senator, or Cabinet officer—have argued that their man can’t properly be removed, because what he did wasn’t actually a statutory crime. This process has already begun for President Donald Trump. Among the first things the president’s personal lawyer Jay Sekulow said in a September 27, 2019, CBS interview about the Ukraine affair was that the phone call between Trump and Ukrainian President Volodymyr Zelensky involved “no violation of law, rule, regulation, or statute.”
[Yoni Appelbaum: Impeach Donald Trump]
Even some of columnist Bret Stephens has repeatedly that, to him, “high crimes and misdemeanors” requires ordinary criminality. He recently , “I struggle to see exactly what criminal statute Trump violated with the [Ukraine] call.”
