Sometimes the definitions of commonly or uncommonly used legal terms are challenging to understand, at best. It all depends on who first coined the term. Sometimes the definitions of terms have evolved over time.
For example, we’ve heard a lot of discussion over what kind of activity constitutes “high crimes and misdemeanors” because of the impeachment of President Donald J. Trump — but the relevant definitions today are much different than the definitions were in the late 1700s, making common contemporary interpretations of impeachable conduct much different from what the framers originally intended.
Trump’s defense has already argued that he cannot be impeached for an abuse of power or any behavior that does not constitute a crime because those activities do not rise to the definition of “high crimes and misdemeanors.” But dozens of public officials have been impeached for everything from drunkenness to simply breaking the public’s trust.
Gerald Ford said, “An impeachable offense is whatever the majority of the House of Representatives considers it to be at a given moment in history.”
While technically inaccurate, he wasn’t exactly wrong. And there’s a lot of precedent that goes into the impeachment process because the Constitution never spells it out for us.
Law professor Frank Bowman says that “the defenders of the impeached officer always argue, always, that a crime is required. And every time that misconception has to be knocked down again.”
The premise of impeachment is to hold public officials to an extremely high bar — which is a stark contrast to Trump’s Republican supporters, who have all argued that the high bar should be the evidence required to impeach a president. But isn’t that counter-intuitive? If the bar set for presidential behavior is set high, then shouldn’t the bar for evidence for impeaching a president be set low?
Bowman said, “Let’s say the President were to wake up tomorrow morning and says, ‘All this impeachment stuff is kind of getting on my nerves. I think I’m going to Barbados for six months. Don’t call me, I’ll call you,’ and just cuts off all contact and refuses to do his duty.”
If the president is above the law — above impeachable behavior — as his lawyers have argued, then there’s no remedy. Bowman continues, “That’s not a crime. It’s not violating a law. But could we impeach him? Of course we could — otherwise what’s the remedy? We have a country without a president.”
Few officials in the country who have been impeached broke the law. Instead, they violated the public trust. And that’s all one needs to do to be impeached. That’s because the definition of “high crimes and misdemeanors” in the late 1700s when the clause was placed in the U.S. Constitution means exactly that. We know this because Alexander Hamilton spelled it out for us in Federalist Paper No. 65. Hamilton was one of the Founding Fathers — so he’d know.