By Frank Bowman
About a year ago, a bright young professor at Harvard Law, Nikolas Bowie, wrote an article claiming that the phrase “high crimes and misdemeanors” required proof of a crime. This opinion is so contrary to all the learning on the subject since the founding and before that I was moved to write a response, which you can find here. I figured back then that his heterodox view would resurface should Mr. Trump ever be impeached. It has, forming a part of Alan Dershowitz’s arguments on behalf of Trump.
Professor Bowie is wrong. I won’t repeat all the arguments establishing that point that I made a year ago on this site. You can find them here. However, inasmuch as his opinion may assume outsize importance over the next few weeks, some additional observations are called for, particularly in response to observations he has made today on Twitter defending his perspective.
As I previously observed, Professor Bowie simply ignores all the historical evidence from 1386 through the founding about the origins and meaning of the phrase “high crimes and misdemeanors.” That evidence demonstrates unequivocally that the phrase was a term of art employed virtually exclusively in impeachment and that it embraced a wide array of misconduct by government officials that was not criminal. Moreover, it is indisputable that the framers were aware of the phrase’s origins and that it included non-criminal conduct. For a full summary of the relevant history, see this summary I wrote for The Atlantic.
But for the present consider only two incidents.
First, when the Constitutional Convention convened in Philadelphia in the summer of 1787, the English-speaking world was riveted by the commencement of impeachment proceedings against Warren Hastings, governor general of Bengal. Few if any of the charges against Hastings were indictable crimes, but that was immaterial to Edmund Burke, the principal parliamentary prosecutor of Hastings. He said the charges “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”
More critical than Burke’s view of Hastings’ alleged wrongdoing was the opinion of the American framers across the sea. When George Mason rose to object that “treason and bribery” only covered too little offensive conduct, he said:
“Why is the provision restrained to treason and bribery only? Treason, as defined in the Constitution, will not reach many great and dangerous offenses. Hastings is not guilty of treason. As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachment.”
Mason then proposed that “maladministration” be added. When that was objected to, he suggested “high crimes and misdemeanors,” which was readily accepted.
Mason wanted an impeachment provision that would cover the kinds of offenses charged against Hastings, which were non-criminal abuses of official power. And there is every reason to believe that Mason (and Madison and the rest) believed “high crimes and misdemeanors” fit that bill.
As for whether the rest of the founding generation understood “high crimes and misdemeanors” to embrace non-criminal behavior, consider but one other case. In 1774, the Massachusetts colonial assembly impeached Chief Justice Peter Oliver for the sin against colonial autonomy of accepting the salary prescribed by Parliament for colonial judges instead of the stipend voted by the assembly. This was obviously no crime, yet the assembly described his conduct in the articles of impeachment as “certain high crimes and misdemeanors.” The Oliver case was a colonial cause celebre. It was a primary cause of the complaint against King George written into the Declaration of Independence that, “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.“
Critically, both the intimate facts of the Oliver case and the particular verbal description of his conduct were well known to many men who participated in drafting or ratifying the Constitution. Nathaniel Gorham both voted for Oliver’s impeachment and later served as Chairman of the Committee of the Whole at the constitutional convention. Seventeen other men both voted on the Oliver impeachment and served as delegates to the Massachusetts ratifying convention. All of them knew that “high crimes and misdemeanors” had been used in both England and America to describe non-criminal official conduct.
Moreover, multiple framers were explicit in their assertions that various kinds of non-criminal behavior by presidents would be impeachable, including abuse of the pardon power (Madison and George Nicholas), violation of the foreign emoluments clause (Edmund Randolph), convincing the Senate to ratify a treaty that “violated the interest of the nation” (Madison), and “wanton removal of meritorious officers” (Madison).
In Federalist 65, Alexander Hamilton not only spoke of impeachable offenses as being in their essence “POLITICAL,” but went on to describe the nature of impeachments this way: “[An impeachment proceeding] can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.” In other words, impeachable offenses are not constrained by the prior definitions afforded by pre-existing law in ordinary courts.
It simply cannot be plausibly maintained that the architects of the constitution would be publicly contending that the constitution contemplated impeachment for conduct not previously barred by law if they had written the constitution to prohibit that precise outcome.
Professor Bowie really has nothing to say about the overwhelming evidence that the founding generation understood impeachable offenses as extending beyond criminal conduct. Or about the fact that, for example, the first successful impeachment and conviction in American history was the 1803 removal of Judge John Pickering, whose offenses were making erroneous legal rulings, drunkenness, profanely invoking “the name of the Supreme Being,” and (probably) being insane. Or about any of the handful of other later impeachments in which American officials were impeached for, and sometimes convicted by the Senate of, non-criminal misbehavior.
Professor Bowie’s interpretive argument seems based primarily on two premises:
First, he points to the trial-like features of the House and Senate impeachment process and the constitution’s use of terms like “convict” or “conviction” to describe the Senate’s verdict. He also observes that sometimes the constitution uses the word “offence” in relation to conduct deemed impeachable. I won’t repeat here my earlier explanation of why the use of such terms simply cannot bear the interpretive weight he places on it.
Second, Bowie’s real argument seems to be a syllogism: (1) removal from office following impeachment is a criminal punishment, (2) the ex post facto clause bars punishment for conduct not previously defined as criminal, and (3) therefore impeachable offenses can only be previously defined crimes. But like any syllogism, this one fails if the initial premise is incorrect.
In his article, Bowie offers no evidence that removal upon impeachment was ever thought by the framers to be criminal punishment, or indeed that the simple fact of removal from public office has ever been categorically deemed a criminal punishment. He simply asserts that disqualification “is undoubtedly punishment.”
In my original response to Prof Bowie, I explained why his position is in tension with basic criminal law theory. Here I will only add that his view was long ago rejected by authorities such as Justice Joseph Story, who in his famous 1833 Commentaries on the Constitution, explained the character of American impeachment, saying: “[A]n impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither his person, nor his property; but simply divests him of his political capacity.”
Moreover, and curiously, for one so reliant upon the textual nuances of the constitution’s impeachment clauses, Prof. Bowie fails to account for the passage of Article One that effectively disproves his premise:
“[J]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor … but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
Note that the framers do NOT say, “Punishment in cases of impeachment shall not extend further….” The consequence of conviction in an impeachment is carefully called a “judgment.” The word “punishment,” the word critical to Bowie’s argument, appears only later in the sentence describing, not what happens in consequence of impeachment, but what may happen in another, expressly separate, proceeding in an ordinary court.
And that’s the whole point. As I explained in my first response to Professor Bowie, the framers expressly, and designedly, stripped American impeachment of all the characteristically criminal punishments that Parliament had the power to impose upon conviction in British impeachments. The framers did that because they recognized British impeachments had long been criticized for imposing punishments for conduct not previously deemed criminal. And they did it precisely because they intended impeachment to be a mechanism separate from the criminal courts, but available to address political wrongdoing that was dangerous to the Republic, but that had never previously been defined as criminal by statute or common law.
That Prof. Bowie has totally missed the point is driven home by one of his tweets today in which he suggests that because Wm Blackstone, the famous 18th Century treatise author, refers to British parliamentary impeachments as criminal, then American impeachments must be, as well. No. No. A thousand times no. British parliamentary impeachments were essentially criminal in character because they imposed characteristically criminal punishments. The American framers removed the criminal punishments and thus consciously altered the fundamental character of impeachment in this country.
Finally, Prof. Bowie suggests somewhat plaintively in another tweet that he did not invent the argument that American impeachment requires proof of crime. That is, of course, true. The argument has been raised as a matter of course by practically every defendant in every American impeachment since 1788. It was, as he observes, raised by Justice Benjamin Curtis acting as defense counsel in the impeachment of Andrew Johnson. But the fact that a defendant or his counsel makes an argument does not make that argument a correct statement of constitutional law, even if, as in the case of President Johnson, the Senate does not muster the votes to convict him.
Prof. Bowie in a tweet has characterized my unequivocal rejection of his argument as “uncharitable.” That it may be. If so, I apologize for my lack of charity. But Prof. Bowie has resurrected an old and long-discredited canard, and the importance of the question to the present national crisis leaves little room for the customary academic courtesies.