“High Crimes and Misdemeanors” does not mean “indictable crimes”

This great article  explains the crucial difference between an indictable crime and the deliberately flexible constitutional standard “high crimes and misdemeanors” for purposes of impeachment.  

The president’s ongoing defense to the impeachment inquiry (and everything else he is busily tying up in courts with his army of lawyers) is that he has not committed a chargeable criminal act, and even if he did (as in shooting someone on Fifth Avenue) he argues that he cannot be arrested, investigated or indicted because of a DOJ opinion stating that a sitting president cannot be indicted. 

It’s a simplistic defense that ignores the long history of impeachment, the meaning of “high crimes and misdemeanors” as the Framers used it, and, beyond all that, the ethical standard we hold our presidents to, even the worst of them.

Here’s a paragraph from that article that I found cool, and timely:

Finally, and most pertinently, the House Judiciary Committee approved three articles of impeachment against Richard Nixon: the first for obstruction of justice, the second for abuse of power, and the third for defying House subpoenas during its impeachment investigation. Article 3 obviously did not allege a crime. But even in the first two articles, which did involve some potentially criminal conduct, the committee was at pains to avoid any reference to criminal statutes. Rather, as the committee staff observed in its careful study of the question, “high Crimes and Misdemeanors” is a phrase that reaches far beyond crimes to embrace “exceeding the powers of the office in derogation of those of another branch of government,” “behaving in a manner grossly incompatible with the proper function of the office,” and “employing the power of the office for an improper purpose or personal gain.”


Take a few moments and read the article, by law professor Frank O. Bowman III.  Bowman makes his point  clearly — that the term of art is deliberately flexible to cover unimagined rascalities.  He illustrates his point with numerous historical citations.  It’s easy to read, interesting and a very persuasive presentation.   

Refusing to comply with Congressional subpoenas is not a crime anyone can be charged with, but it is a ‘high crime and misdemeanor’ for purposes of impeachment where the standard is really abuse of power.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s