jurisprudence."[1] The House has also applied that principle in Presidential impeachments. Although President Nixon resigned before the House could consider the articles of impeachment against him, the Judiciary Committee's allegations encompassed many non-criminal acts.[2] And in President Clinton's case, the Judiciary Committee report accompanying articles of impeachment to the House floor stated that "the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment."[3]
History thus affords exceptionally clear and consistent evidence that impeachable "high Crimes and Misdemeanors" are not limited to violations of the criminal code.
That historical conclusion is bolstered by the text and structure of the Constitution. Starting with the text, we must assign weight to use of the word "high." That is true not only because "high Crimes and Misdemeanors" was a term of art with its own history, but also because "high" connotes an offense against the State itself. Thus, "high" treason in Britain was an offense against the Crown, whereas "petit" treason was the betrayal of a superior by a subordinate. The Framers were aware of this when they incorporated "high" as a limitation on impeachable offenses, signifying only constitutional wrongs.
That choice is particularly noteworthy because the Framers elsewhere referred to "crimes," "offenses," and "punishment" without using this modifier—and so we know "the Framers knew how to denote ordinary crimes when they wanted to do so."[4] For example, the Fifth Amendment requires a grand jury indictment in cases of a "capital, or otherwise infamous crime."[5] The Currency Clause, in turn, empowers Congress to "provide for the Punishment of counterfeiting the Securities and current Coin of the United States."[6] The Law of Nations Clause authorizes Congress to "define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations."[7] And the Interstate Extradition Clause provides that "[a] Person charged in any State with Treason, Felony, or other Crime" who flees from one state to another shall be returned upon request.[8] Only in the Impeachment Clause did the Framers refer to "high" crimes. By adding "high" in this one provision, while excluding it everywhere else, the Framers plainly sought to capture a distinct category of offenses against the state.[9]
- ↑ Berger, Impeachment at 60.
- ↑ See generally Committee Report on Nixon Articles of Impeachment (1974).
- ↑ Committee Report on Clinton Articles of Impeachment (1998) at 66.
- ↑ Tribe & Matz, To End a Presidency at 40.
- ↑ U.S. Const. amend. V, § 1.
- ↑ U.S. Const. art. I, § 8, cl. 6.
- ↑ U.S. Const. art. I, § 8, cl. 10.
- ↑ U.S. Const. art. IV, § 2, cl. 2.
- ↑ One might object that since "Treason" and "Bribery" are indictable crimes, the same must be true of "other high Crimes and Misdemeanors." But this argument would fail. Although it is true that "other high Crimes and Misdemeanors" share
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