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High Crimes and Misdemeanors: The Constitutional and Historic Limits on Impeachment for Criminal Attacks upon State

The House of Representatives can only adopt a bill of impeachment if it finds under Article II, Section 4 of the Constitution that the President, or other federal officeholder, committed "Treason, Bribery, or other high Crimes and Misdemeanors."

Several Constitution provisions leave no doubt that an impeachment trial is for criminal misconduct. Article III, Section 2 states: "The trial of all crimes, except in cases of impeachment, shall be by jury . . . " Further, the constitutional prohibition against being prosecuted twice for the same crime does not protect an impeached officeholder. Article I, Section 3 provides that a "party convicted" by impeachment can be indicted for the crime, tried and convicted. Lastly, Article II, Section 2 authorizes the President to grant pardons for crimes, except in cases of impeachment.

But why did the Founders specify high crimes and misdemeanors? Professor Joseph Isenbergh's [The Law School, The University of Chicago] research notes the answers can be found in the treatises of Coke and Blackstone. These texts were widely read and followed by judges and lawyers of the period and recognized as authoritative sources by the Framers of the Constitution. For example, Blackstone's definition of treason was adopted verbatim in Article III, Section 3: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Blackstone explained that "high crimes" were criminal acts committed "against the king and government." Coke's treatise distinguishes "high treason" as a crime against the "royall majesty," as compared to "petit treason," a crime against "subjects and inferiors." A "high crime" was a crime against the sovereign, as opposed to garden variety crime which did not strike at the institutions of government or the life of the state.

In the first version of Article II, Section 4 adopted by the Constitutional Convention of 1787 the Founders specified "high crimes and misdemeanors against the State." The last three words were changed to "against the United States" and were later deleted in their entirety by the Committee on Style, which was charged with editing, but not altering the meaning of, the Constitution.

The term "high" crimes had clear meaning in 1787 and nothing has changed the meaning of these terms in the interim, until certain members of the House Judiciary Committee in 1998 decided to characterize private misconduct as an affair of state. President's Clinton's questioned testimony in a private lawsuit that was dismissed for lack of merit, his lawful assertion of executive privilege, his dictionary-correct definition of sexual relations as coitus in his Grand Jury testimony and all that occurred with Monica Lewinsky are not high crimes.

The overwhelming majority of Americans know that President Clinton has done nothing that strikes at the heart government, or imperils the operation of its institutions or offices. That is why public opinion strongly supports his retention in office.

The Judiciary Committee of the House of Representatives relies on private affairs, that are not crimes against the operation of government, as the basis for rescinding a national election and removing President Clinton from office. Sexual misconduct was never intended by the Founders as a "high crime" and cause for impeachment. The American public should forever condemn this action as an oppressive, unjust and partisan violation of the Constitution and gross disregard of their rights.

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