By Frank Bowman
In a recent post, my blog co-author Sam Crosby noted a new article in the Harvard Law Review Forum by Professor Nikolas Bowie arguing that impeachable “high crimes & misdemeanors” must be criminal in character. Professor Bowie relies primarily on his exegesis of arguments made by former Justice Curtis at the impeachment trial of President Andrew Johnson. While Prof. Bowie’s position has the virtue of being arrestingly contrarian, it is also dead wrong, inasmuch as he misreads the text and structure of the constitution, the entire sweep of Anglo-American legal history, and indeed the Johnson impeachment itself.
Professor Bowie (not unlike Professors Tribe and Matz in their recent book) ignores copious evidence that the Framers and other members of the founding generation had a sophisticated understanding of British parliamentary impeachment practice and pre- and post-Revolutionary American impeachment practice that informed their adoption of the phrase “high crimes and misdemeanors.” That phrase had been used for centuries, on both sides of the Atlantic, to embrace both criminal and non-criminal official misbehavior. As both Raoul Berger in his classic 1970s study and I in my upcoming book conclude, there is no evidence that any impeached official in either Great Britain or America prior to 1788 ever successfully defended against impeachment on the ground that his conduct was not criminal. The historical derivation of the phrase “high crimes and misdemeanors,” together with multiple statements at the Constitutional Convention and later by the founding generation make clear that, as a matter of original understanding, impeachable conduct was not limited to indictable crime.
In addition, Prof. Bowie also (quite inexplicably) ignores the evidence of every other American impeachment post-1788 except that of President Johnson. Those impeachments, whether of judges, legislators (one), or executive branch officials are chock full of charges of non-criminal impeachable conduct. Senator William Blount was impeached in 1797 for a non-criminal (though outrageous) scheme to give Great Britain control of Spanish holdings in Florida and Louisiana; he was acquitted, but only because the Senate seems to have concluded that senators are not “civil officers” subject to impeachment. Multiple federal judges have been impeached and some convicted and removed for non-criminal behavior. The articles of impeachment reported out of the Judiciary Committee against Richard Nixon contain numerous allegations of non-criminal behavior and the Committee concluded that crime was not a requirement for impeachment.
Prof. Bowie attempts to elide the overwhelming historical evidence two ways. First, he focuses on the procedures in American impeachments and some of the terminology used to describe them. In particular, he emphasizes the trial-like features of the House and Senate decisional process and the employment of terms like “convict” or “conviction” to describe the Senate’s verdict. But this is a remarkably elemental error. It is not the procedures of American impeachments (or any other legal proceeding), but their consequences that establish their fundamental character. What distinguishes crime from other delicts is not the procedures employed to determine liability, but the potential consequences attendant on a finding of liability. Crimes can result in loss of life, freedom, or property, and are attended by public opprobrium that does not necessarily attach to any mere civil judgment. It is because of the uniquely severe consequences that follow a criminal conviction that the law establishes uniquely protective procedures as a prerequisite to such a conviction. Criminal procedures attach to criminal consequences, not the other way round.
British impeachments were essentially criminal in character — an impeached official in Great Britain could be imprisoned, banished, fined, stripped of all his property, or even executed. The Framers of the American constitution (and their forbearers who drafted early American state constitutions) consciously divested impeachment of all characteristically criminal punishments, leaving only removal from office and the potential disqualification from future office-holding.
Article I, Section 3 states:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold any Office of honor, Trust, or Profit under the United States; but the party convicted shall nonetheless be liable and subject to Indictment, Judgment and Punishment, according to Law.
In short, the Framers not only stripped impeachment of its criminal consequences, but expressly stated that such consequences could be imposed on office holders who had committed statutory crimes only following separate proceedings in the ordinary courts. They did this in part because they found the sometimes bloody results of British impeachments unseemly, but more importantly, they were aware that British impeachments were subject to the criticism that they imposed criminal consequences for conduct not previously denominated illegal in violation of the common law maxim nulle poena sin lege. By eliminating criminal punishment for impeachment, the Framers could protect the polity against overreaching officials by expanding the reach of impeachable conduct without offending common law principles regarding criminal liability.
Professor Bowie blithely ignores the plain implications of the textual restrictions on the consequences of impeachment. He simply asserts, ipse dixit, that “it is undoubtedly a punishment to strip someone of their office and disqualify them from holding certain offices because of their commission of ‘high Crimes and Misdemeanors.'” With apologies to Prof. Bowie, this is a strikingly shallow assertion. Of course, removal and disqualification from office are unpleasant and undesirable events, and in that sense they are “punishment” in the most general colloquial sense. But the same is true of an award of monetary damages following an adverse judgment in a slip-and-fall civil tort suit or breach of contract action, or the loss of one’s law license in a bar disciplinary proceeding. Merely because the consequence of a legal proceeding is unpleasant does not make the consequence a criminal punishment or the proceeding a criminal trial. What is most notable about the constitutionally prescribed consequences of impeachment is precisely that they are not ordinary punishments for crime.
Professor Bowie tries to circumvent unmistakable textual and structural evidence of the non-criminal character of impeachment by pointing to the ex post facto clause and the constitutional prohibition on bills of attainder. He argues that these provisions ban retrospective imposition of criminal punishment and therefore prevent Congress from impeaching an officeholder for conduct that was not statutorily criminal at the time of the impeachment. But, of course, this argument is completely circular. It only follows if impeachments are criminal proceedings. If they are not — and as we have seen the Framers wrote the impeachment clauses to strip impeachment of its criminal character — then the ex post facto and bill of attainder clauses impose no restrictions on the scope of impeachable conduct.
Indeed, Prof. Bowie completely misunderstands the import of the ex post facto clause and the constitutional prohibition on bills of attainder for the reach of impeachable offenses under the American constitution. In fact, he has things exactly backwards. George Mason, who introduced the phrase “high crimes and misdemeanors” into the constitutional text did so in part because, in the absence of bills of attainder and the ability of the legislature to define crimes retrospectively, a broad definition of impeachable offenses was required. Said Mason, “As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachments.” Otherwise, in the Framers’ view, the polity would be defenseless against a chief executive whose conduct subverted the constitution, but broke no existing penal law. This same fear was what Alexander Hamilton referred to when he spoke in the Federalist of impeachable offenses as being in their essence “political.”
Finally, Prof. Bowie misunderstands the Johnson impeachment. He focuses narrowly on the arguments of one of President Johnson’s attorneys, who quite naturally would argue that impeachment requires crime, and a few cherry-picked comments from senators regarding that argument. But he completely ignores everyone else’s arguments and the statements of other senators that don’t support his thesis. More importantly, he ignores the political context of Johnson’s acquittal. The Senate’s decision to acquit Johnson, by one vote shy of the required two-thirds majority, had far more to do with the tortured politics of Reconstruction, the electoral prospects of the Republican Party in 1868, and the fact that a great many people did not want to see Ben Wade (who was next in line of succession) become president even for a year, than it did with any supposed rule that impeachable conduct must be criminal.
The overwhelming consensus of serious students of impeachment is, and long has been, that impeachment does not require criminal conduct. Professor Bowie offers nothing to disturb that settled view.