not until much later—in the twentieth century—that the Supreme Court came to recognize that Congress could enact a broader criminal code. As a result, early federal criminal statutes "covered relatively few categories of offenses."[1]Many federal offenses were punishable only when committed "in special places, and within peculiar jurisdictions, as, for instance, on the high seas, or in forts, navyyards, and arsenals ceded to the United States."[2]
The Framers were not fools. They authorized impeachment for a reason, and that reason would have been gutted if impeachment were limited to crimes. It is possible, of course, that the Framers thought the common law, rather than federal statutes, would define criminal offenses. That is undeniably true of "Bribery": the Framers saw this impeachable offense as defined by the common law of bribery as it was understood at the time. But it is hard to believe that the Framers saw common law as the sole measure of impeachment. For one thing, the common law did not address itself to many wrongs that could be committed uniquely by the President in our republican system. The common law would thus have been an extremely ineffective tool for achieving the Framers' stated purposes in authorizing impeachment. Moreover, the Supreme Court held in 1812 that there is no federal common law of crimes.[3] If the Framers thought only crimes could be impeachable offenses, and hoped common law would describe the relevant crimes, then they made a tragic mistake—and the Supreme Court's 1812 decision ruined their plans for the impeachment power.[4]
Rather than assume the Framers wrote a Constitution full of empty words and internal contradictions, it makes far more sense to agree with Hamilton that impeachment is not about crimes. The better view, which the House itself has long embraced, confirms that impeachment targets offenses against the Constitution that threaten democracy.[5]
The distinction between impeachable offenses and crimes also follows from the fundamentally different purposes that impeachment and the criminal law serve. At bottom, the impeachment power is "the first step in a remedial process—removal from office and possible disqualification from holding future office."[6]It exists "primarily to maintain constitutional government" and is addressed
- ↑ Tribe & Matz, To End a Presidency at 48.
- ↑ 2 Story, Commentaries at 264.
- ↑ United States v. Hudson and Goodwin, 11 U.S. 32 (1812).
- ↑ In the alternative, one might say that "high Crimes and Misdemeanors" occur when the president violates state criminal law. But that turns federalism upside down: invoking state criminal codes to supply the content of the federal Impeachment Clause would grant states a bizarre and incongruous primacy in the constitutional system. Especially given that impeachment is crucial to checks and balances within the federal government, it would be nonsensical for states to effectively control when this power may be wielded by Congress.
- ↑ Article III of the Constitution provides that "the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." Article III, §2. This provision recognizes that impeachable conduct may entail criminal conduct—and clarifies that in such cases, the trial of an impeachment still occurs in the Senate, not by jury.
- ↑ Staff Report on Constitutional Grounds for Presidential Impeachment (1974) at 24.
61
