More on Crimes and High Crimes

As usual, a terrific and thought-provoking post by Greg Weiner. I have a couple of amendments.

The most important one is that the impeachment clauses of the Constitution were written with the British impeachment of Warren Hastings in mind and underway. As Raul Berger showed years ago, “high crimes and misdemeanors” was a technical phrase invented many years before the crimes we now know as misdemeanors was invented. What we call misdemeanors were called trespasses at the time the idea of high crimes and misdemeanors was devised. The original idea, imported into our Constitution, meant primarily abuse of office. That was and remains its core meaning. However, for reasons a number of us have written about that primary idea has been supplanted in our constitutional culture by a more legalistic understanding.

What about the Andrew Johnson trial? That episode should not be turned to for precedent but for the main origin of most American misunderstandings of the impeachment process for presidents. There were actually two impeachment inquiries/processes for Johnson. The first one, which addressed directly Johnson’s subversion of the Congress’s reconstruction policies did not muster sufficient support. The well known second impeachment and trial, affected by the failure of the first effort, over-legalized what had been intended to be a process of high politics. Even in the second successful impeachment, there was one important high crime in a political sense — an article depicting Johnson’s contemptible political rhetoric — harrangues– nineteenth century equivalents to Donald Trump. That charge for bad rhetoric was dropped in the Senate trial and the debate remained on a legalistic effort to remove Johnson for violations of a tenure of office act the Congress had passed to limit Johnson’s appointment power. Thus, the motives of the Congress to discipline the President for genuine high crimes (subverting Reconstruction laws passed over Johnson’s vetoes) were translated into legalistic arguments about violating an act against which Johnson had reasonable constitutional objections going back to the removal controversy in the first Congress.

Allen Sumrall has a slightly different account of the shift from a political to a legal understanding of impeachment that informed his recent essays with Connor Ewing here at The Constitutionalist.

The principal source of confusion regarding the meaning of impeachment in the United States stems from the American constitutional invention designed to transform partisan politics into high politics. The new design insight was to create an elaborate analogy to a criminal proceeding. The charges were called crimes, the house resembled a grand jury, the Senate was transformed into a trial setting with Senator as jurors/judges, House managers resembled prosecutors, the Chief Justice of the Supreme Court presided and so forth. On the other hand, impeached officers could be tried in regular courts after removal from office (which would be impermissible if the removal process were actually a criminal one because that would be double jeopardy) and all the drafters intentionally chose analgous terms rather than literal ones. The point of this elaborate pretense was to get partisans to think politically, but at a higher order of politics than partisan politics.

But pretense is an unstable form of political architecture. If taken too literally, one over-legalizes the impeachment process. If the pretense is unmasked and the citizenry and politicians come to treat it as merely pretense (as did Senators in Trump’s first impeachment trial) then high politics is reduced to low partisan politics. The way to escape this dilemma may be a more robust and transparent civic education.

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