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Edward Jayne
January 19, 1999

When does the Constitution permit a president to be impeached? This depends on the "high crimes and misdemeanors" component of the impeachment clause, and this in turn finally depends on its intent, hence also the intent (or intention) of those at the 1787 Convention who voted upon it. Of course the entire body of the Convention participated in this vote, but Madison's Notes identifies only ten delegates who spoke at the two sessions held on July 20 and September 8, when the appropriate use of presidential impeachment was debated. It is from the arguments of these ten that we must extrapolate the purpose of the Convention as a whole pertaining to impeachment.

Of these ten delegates, Davie, Gerry, and Randolph spoke up once apiece; Wilson, Madison, King and Franklin twice apiece; Charles Pinckney and Mason three times apiece (the latter if his two amendments on September 8 are counted separately); and, as by far the most active contributor, Gouvernour Morris five times. As a member of the Committee of Style, Morris was also probably responsible for having revised the high crimes and misdemeanors clause by deleting against the United States. Morris himself later boasted of his authorship of the final draft of the Constitution: "That instrument was written by the fingers, which write this letter" (Farrand's Records, vol. 3, p. 420). Madison agreed, if with the caveat, "though of course all the rest had to concur" (Records, vol. 3, p. 499).

And an eleventh delegate must necessarily be added to this total, Alexander Hamilton, who did not speak on the issue at the Convention, but who did serve on the final Committee of Style and later wrote Federalist 65 regarding impeachment.

The question that now arises with regard to the impeachment trial of President Clinton is why Morris and his fellow delegates on the Committee of Style deleted against the United States from its position following high crimes and misdemeanors in Article 2, Section 4, of the final text of the Constitution. Just a couple of days earlier, on September 8, this phrase had been unanimously adopted by the Convention, Morris's vote included, and, as already indicated, Morris himself had played a substantial role in the floor discussion of impeachment, especially during the July 20 session. So the question arises why Morris made this deletion, thus sufficiently obscuring the meaning of "and other high crimes and misdemeanors" to set the stage for our present difficulties with President Clinton's impeachment trial. Did Morris seek to diminish the Constitution's specifications for impeachment and thus expand their potential application at the will of Congress? Or did he simply feel that the earlier words other and high made the phrase redundant and therefore dispensable? This might seem a difficult question, but in fact there is substantial evidence that stylistic redundancy was at issue rather than the scope of application.

Aside from the use of impeachment to remove presidents for crimes against the state before their terms of office expire, most delegates involved in debate at the Convention were fully aware that the threat of impeachment could also be used by Congress as political leverage against the authority of the president. Some primarily wanted to defend the president from this threat, but others, unable to forget their struggle against British royalty, were willing to let Congress retain this threat as suitable leverage to discourage presidential excesses. British monarchy's executive dominance had been despotic prior to the Revolutionary War; under the Articles of Confederation, however, the national legislature had been riven by factional differences to such an extent that our central government was unable to exercise its sovereignty. The purpose of the Constitutional Convention was therefore to obtain a better balance between the executive and legislative branches by creating a presidency less oppressive than British royalty, yet strong enough to offset the populist thrust of Congress. Those who favored congressional oversight tended to support a broad application of impeachment standards against the president, whereas those who favored an enhancement of the president's executive authority tended to prefer a narrow application of these standards. Some even wanted to dispense with impeachment altogether.

The eleven delegates who expressed their views upon impeachment may be accordingly divided into the following four categories, with a fifth added for Hamilton, who addressed himself to the issue at a later date:

1.Three delegates advocated a sweeping use of impeachment that obviously emphasized congressional oversight and that might indeed be applied to President Clinton's case: Franklin (for misconduct); Gerry (for the "bad" magistrate); and Randolph (for "guilt wherever found"). Franklin spoke twice on July 20, first to explain the benefits of impeachment to the president himself, later to draw an analogy from Dutch history, but only to be contradicted by King. Both Gerry and Randolph spoke only once, and they did not try to raise their arguments again on September 8.

2.Two delegates sought to minimize the application of impeachment as much as possible, thus better defending presidential authority: Pinckney, who spoke three times of eliminating impeachment altogether; and King, who conceded the value of impeachment for misbehavior in office, but with major constraints including the avoidance of any role for Congress in this process. Morris began debate entirely in accord with Pinckney but later shifted his views.

3.Two delegates--Davie and Wilson--argued against the elimination of impeachment, but without expressing any support of its sweeping application. Neither of them is sufficiently quoted by Madison to be categorized otherwise.

As a fourth category I would propose the three delegates who are recorded to have changed their minds on impeachment as debate advanced: Morris, Madison, and Mason. Significantly, these were the only delegates who spoke on the issue both on July 20 and August 8, and their contributions were substantial, especially those of Mason and Morris.

Gouverneur Morris played a pivotal role on July 20 in debate on impeachment, and his cumulative understanding of the issue probably best represents the understanding of the Convention as a whole. As earlier indicated, his first two contributions were in full agreement with Pinckney that impeachment should be eliminated from the Constitution in order to defend the president from congressional usurpation. The third time he spoke, however, he conceded in response to Franklin's argument that "corruption & some few other offences" might justify impeachment, but with the important stipulation that "the cases ought to be enumerated & defined," presumably in the Constitution itself. This stipulation played a crucial role in debate, since it obliged a shift in emphasis to the specification of particular instances of presidental malpractice deserving of impeachment. Finally, Morris brought debate to a close on July 20 by admitting he had changed his opinion and felt that bribery, treason, corruption, and incapacity were legitimate causes for impeachment. The first two of these--bribery and treason--were later featured in the Constitution, and their application seems plain today. On September 8, Morris supported Madison's rejection of Mason's "maladministration" amendment by discussing its counterproductive tactical value in giving Congress leverage at the expense of the president. Morris was probably among those who later rejected Mason's "high crimes and misdemeanors" amendment with against the state added, but, once against the United States was substituted, he joined in the unanimous acceptance of the amendment.

Madison responded on July 20 to Morris's insistence on specification with a wide list of impeachable charges, most notably incapacity, negligence, perfidy, peculations, oppression, and treason. In doing so he probably sought a compromise between the sweeping demands of delegates in category 1 and the insistence upon a limited application by delegates in category 2. Indeed, Madison provided specification as advocated by Morris, but this was counterbalanced by the ample number of charges specified (none of which, by the way, bore any relevance to perjury and the obstruction of justice). On September 8, however, Madison warned against Mason's proposal to add maladministration to the charges of treason and bribery with the argument that maladministration would give the Senate too much opportunity to use the threat of impeachment to dominate the president. At this point he was clearly aligned with Morris.

Mason warned at length on July 20 about the need for impeachment procedures to guard against "the most extensive injustice" by the president, but then brought his argument to a close upon the more specific issue of corruption. On September 8, he began debate by complaining that the list of causes for impeachment should be more inclusive than bribery and treason, two of the four categories acceptable to Morris on July 20. Mason offered as a third category, "maladministration," already used for this purpose in the Virginia Constitution. When maladmistration was rejected because of arguments by Madison and Morris, Mason switched to British legal tradition, suggesting instead that the third item be high crimes and misdemeanors. Against the state was quickly added (by whom Madison does not indicate), and later, for clarification according to Madison, it was replaced by against the United States (again, by whom Madison does not indicate). This was unanimously accepted by the Convention as a whole, but four days later the phrase was deleted by the Committee of Style.

Of these three delegates, Morris seems to have been the most prepared to limit the scope of impeachment, though he did shift from the uncompromising stance he first shared with Pinckney to a willingness to accept the specification of a limited number of impeachable offenses. Both Madison and Mason, on the other hand, started out willing to apply impeachment on a relatively broad scale, but by September 8 there was obvious convergence with Morris's position. Madison shared with Morris his concern that impeachment might be misused by the Senate, while Mason was willing to limit the extension of impeachable offenses additional to treason and bribery to a single admittedly broad third term: first maladministration, and then, after Madison and Morris argued against it, other high crimes and misdemeanors--"other" in the sense of being comparable. Mason offered no objections to either of the two friendly amendments adding against the nation and against the United States, both of which helped to specify the application of high crimes and misdemeanors.

Hamilton, the eleventh delegate to be taken into account, said nothing relevant to impeachment during the Convention itself, but later devoted Federalist 65 to the justification of impeachment for official misconduct that involves the "abuse or violation of some public trust." This abuse he specified as being "POLITICAL" [sic, caps in the original] in the sense that injuries incurred must be limited to those "done immediately to the society itself." By immediately he probably meant "directly" as opposed to "indirectly" apropos of the public trust violated. Scale and proportionality were also at issue. Hamilton, like Morris, sought to limit Congress's use of impeachment to the most serious misuse of power by the president--as perhaps best and most succinctly described by combining all four amendments discussed on September 8: "maladministration through high crimes and misdemeanors against the United States as a state." Hamilton might have been less concerned than Morris about specifying these crimes, but he made himself entirely clear about their being POLITICAL crimes, presumably as opposed to personal crimes such as those with which President Clinton is charged.

Impeachment's potential breadth of application was stretched at times during the July 20 session--for example by Gerry's vague reference to the "bad" magistrate and by Randolph's to "guilt wherever found." However, appropriate specification became the primary concern during the September 8 session, as emphasized by Mason, Madison, and Morris, the three delegates who carried over their arguments from the July 20 session. By itself crimes and misdemeanors might seem to have had broad application, but its attributive modification by other and high (thus giving it comparable status to treason and bribery) bore obvious restrictive implications. And to make this restrictive sense plain, the phrase against the state was added, later followed by its substitute against the United States, which was if anything even more restrictive. At this point impeachable transgressions were limited to those against the federal government alone. It must have seemed to many delegates that an appropriate compromise had been forged between the two extremes best articulated by Pinckney and Randolph on July 20--the total elimination of impeachment for any offense whatsoever as opposed to the open-season punishment of "guilt wherever found."

Unfortunately, the Committee of Style revised the high crimes and misdemeanors clause by deleting the final phrase against the United States. At first sight, this deletion seems to reduce specification and thereby expand the application of this clause to include non-governmental infractions. Suddenly a wider selection of presidential misconduct might have seemed impeachable simply because victimization was no longer limited to the United States itself. However, an alternative explanation seems more probable that Morris and his fellow members on the Committee of Style deleted the phrase because they felt it was redundant. As earlier indicated, the words other and high could be deemed sufficient specification of the scope and magnitude of impeachable crimes, so there was no need to add any reference to the United States.

Supportive of this latter explanation is the near certainty that all members of the Committee of Style--Morris, King, Madison, Hamilton, Wilson (unofficially), and, as chairman, William Samuel Johnson--advocated limited impeachment standards. They all wanted to defend executive authority against congressional usurpation and therefore cannot be expected to have sought to encourage loose impeachment standards. Morris, King, and Madison had spoken to this effect in earlier debate (Morris and King on July 20 and Madison on September 8). Hamilton took the same stance in Federalist 65 and was notorious for his bias supportive of presidential authority. Johnson had been tempted by the royalist cause during the Revolutionary War and earlier in the Convention was one of the architects of the Connecticut Compromise, so he could only have been sympathetic. Wilson's remarks on July 20 were not recorded by Madison, so there is no record of what he thought. However, chances are excellent he went along with Morris as a fellow Pennsylvania delegate.

On the other hand, none of the delegates who advocated a broad application of impeachment--Franklin, Gerry, and Randolph--were on the Committee of Style. Moreover, none had contributed to the compromise amendments of September 8, though they obviously joined everybody else in voting for them. Their shared viewpoint supportive of broad impeachment standards during the July 20 session was not specifically addressed on September 8, and, I would argue, it was even less a factor when Morris and the rest of the Committee of Style chose to eliminate against the United States from the text of the Constitution.

II. The Current Situation

Today, however, all is in confusion. As explained by Jack Rakove on the Op-Ed page of the January 12, 1999, New York Times, the "high" crimes and misdemeanors for which President Clinton is being impeached consist of "misrepresentations tied to a civil suit (itself of doubtful legal merit) involving an incident of private behavior occurring well before Mr. Clinton took office." How exactly can such a case fit any part of the Constitution's wording, even with both against the state and against the United States deleted? How can any designation of high crimes and misdemeanors comparable to treason and bribery be stretched to apply to a cover up for adultery that extends to perjury and the obstruction of justice? And by a president torn between two compulsions, to abide by legal standards which he himself must protect as the highest officer of the land, but also to avoid the embarrassment of scandal that can only diminish his reputation, again, as the highest officer of the land. Caught in this double bind, he obviously made the wrong choice, and now a hostile Congress can take up the cause of impeachment on presumably objective grounds. But is this cause justified based on the original intent of the Founding Fathers at the Constitutional Convention? This is the question.

Many have argued that ordinary citizens pay the appropriate price for committing felonies, so President Clinton must as well, in his case through being impeached. Those who resort to this argument seem oblivious to the analogy that impeachment is equivalent to being fired, not being sent to jail. President Clinton can be jailed for what he has done; then again, he can also be dismissed from office (i.e., impeached). But the two are not the same. Just as impeachable offenses do not necessarily justify imprisonment (arguably the case of President Nixon), criminal behavior punishable by incarceration is not sufficient to justify a president's impeachment unless he has specifically committed high crimes and misdemeanors. Why? Because the president has been elected to office by the American public, and, as intended by Convention delegates, the choice of the electorate cannot and should not be superceded by impeachment except under the most extraordinary circumstances. Though not written into the Constitution, the standard that has applied at least since the 1804 Chase impeachment trial has been that congressmen cannot be impeached under any circumstances because they are presumably answerable to the electorate alone; then again, judges can only be removed from office through impeachment, so wide standards can be applied. Intermediate between judges and congressmen, the president can be impeached, but for a relatively narrow list of charges restricted to crimes against the state.

It has also been maintained that the president is automatically impeachable any time he commits such crimes as perjury and the obstruction of justice, even if these cannot otherwise be designated "high" felonies. He is after all the highest officer of the law in the United States and must be held accountable for crimes like these that flout the law. By committing such felonies he automatically makes them "high" crimes because of his status as president. In other word, any crime at all becomes a "high" crime if it is committed by the president. In effect, Randolph's dictum "guilt wherever found" applies, despite its failure to gain any support during Convention debate. Quite the contrary, however, there is ample evidence that delegates were persistent in their effort to limit and specify the crimes that can be impeached, an effort that was entirely wasted if in fact the commission of any crime at all would be sufficient to justify presidential impeachment. It would have been easy to have written into the Constitution that any "serious" (as opposed to "high") crime automatically makes the president impeachable. However, this was not done, and precisely because it was not wanted.

It should also be mentioned here that none of the eleven delegates who spoke on impeachment during the Convention mentioned either perjury or the obstruction of justice as a chargeable offense. It may be granted that both of these felonies properly augment the list of charges justifying impeachment if they obstruct the prosecution of a high crime or misdemeanor that fits the description intended by Morris and other delegates. But are these particular infractions impeachable if they obstruct the prosecution of non-impeachable crimes? One must seriously doubt that this was the intent of Convention delegates, as might be charged, for example, against a president for trying to cover up a socially offensive but non-criminal act such as adultery. Nobody talked about sex at the Constitutional Convention; only today does the willingness to break the law in denying it become an impeachable offense.

What makes a broad application of impeachment seem feasible is the misreading of high in high crimes and misdemeanors as a reference to the status of whatever "high" official commits crimes and/or misdemeanors. The word is presumably limited to the identification of those in "high" positions, so the rest of the phrase can be divided to suggest that any crime or misdemeanor committed by such individuals makes them susceptible to impeachment. Obviously, this meaning gives the phrase far broader application than Morris and most other delegates wanted during Convention debate, and of course it can be brought to bear upon President Clinton's sexual encounter (a misdemeanor) as well as his false testimony and subornation of witnesses (both presumably crimes) despite the fact that none of these transgressions directly violated the state itself.

However, this use of high cannot be justified, as demonstrated by the Oxford English Dictionary (OED) definition of high, which is almost four pages long. The specific sub-definition pertaining to "high crimes and misdemeanors" is listed under section 6b: "of great consequence; important, weighty, grave, serious." Two passages quoted to illustrate this use are of direct relevance: first, "the high Misdemeanour they have been guilty of" (1685-6), and second, a verbatim quotation, "high crimes and misdemeanors," from Cox's Institutes of 1863. That the OED specifically includes "high crimes and misdemeanors" to illustrate this particular definition establishes that its editors agree upon the attributive function of high in this particular phrase. As a synonym of weighty, grave, and serious, high refers to "crimes and misdemeanors" themselves, not to the status or identity of those who commit them.

Moreover, if Mason used high in his Sept. 8 amendment to refer to the elevated status of the president as the agent of a crime and/or misdemeanor, Morris and the rest of the Committee of Style can be expected to have deleted it for its redundancy from the final text of the Constitution, just as it seems probable that they did with the phrase against the United States. Though one might dispute whether against the United States should have been deleted, it has never been necessary to specify that the president's status is high. We can take that for granted.

Another equivocation that encourages the misinterpretation of other high crimes and misdemeanors is the application of the attributive modifiers other and high exclusively to crimes, thus letting misdemeanors floats free and clear, justifying any application Congress wants to make. However, this breadth of application was not intended by Mason and his fellow delegates. During the eighteenth century, high referred to crimes and misdemeanors both separately and in combination. In the Oxford English Dictionary (OED), the definition (2) of misdemeanor is illustrated by a 1706 quotation by Phillips, "High Misdemeanour, a crime of hainous nature next to High Treason," as well as by Blackstone's remark in his Commentaries IV.i.5, "This general definition comprehends both crimes and misdemeanors, which, properly speaking are mere synonymous terms." Thus high links crimes and misdemeanors as a combined reference to criminal acts more or less comparable to treason and bribery.

The word combination of high crimes and misdemeanors is important to recognize here as an example of hendiadys, a common rhetorical device that links two words to describe a single experience or situation that is otherwise elusive of definition. This may be observed in such combinations as free and clear, pomp and circumstance, and throne and monarchy of God (Milton). Because high crimes and misdemeanors functions as hendiadys, neither crimes nor misdemeanors as modified by high bears any relevance to the ordinary crimes and misdemeanors we take for granted today, any more than the adjectives free and clear can be separately defined to convey the full implications of their combined meaning. Only in recent decades does parturition become possible--"high crimes" and/or (low) misdemeanors"--thus opening the use of impeachment to apply to just about anything Congress wants to pursue, sexual testimony included.

Probably the most hazardous rationalization supportive of a broad interpretation of the clause other high crimes and misdemeanors is the argument that Convention delegates in their infinite wisdom decided to keep the definition of impeachment as loose as possible so it could be suitably adjusted to meet future needs. Therefore, supposedly, the Committee of Style reversed the unanimous choice of delegates on the floor (themselves included!) to specify impeachable high crimes and misdemeanors as being those committed against the United States. Once free of this constriction, the impeachment clause appropriately allows any crime or misdemeanor by the president to be judged by Congress as being impeachable relevant to current standards of judgment.

This final argument is entirely at odds with the intentions of Constitutional delegates. In fact, specification became a primary consideration in the debate upon impeachment starting with Morris's request that "cases be enumerated and defined." Moreover, exactly the delegates the most concerned with specification served on the Committee of Style. And of course the single delegate the very most concerned with this issue, the delegate in fact who had called for specification in the first place, was Morris himself, the final editor of the final draft of the Constitution. Why, then, would Morris, the primary advocate of specification, have made such a mistake? Simply because it was not a mistake during the eighteenth century, when the legal phrase other high crimes and misdemeanors was entirely plain and could not be misinterpreted as it has been today. And with tragi-comic results.

Once again it seems plain, simply enough, that the charges of impeachment against President Clinton should be voided based on law, not fact, since his transgression does not fit the definition of impeachable offenses by our Founding Fathers at the Constitutional Convention. The sooner this is done, the better for everybody concerned.

Submitted to David Kendall, President Clinton's Defense lawyer, as well as Michigan Senator Carl Levin and other Democratic senators who participated in the Sen ate impeachment hearings of President Clinton. This seems to have been used by the ex-Senator Dale Bumpers of Arkansas in the historic portion of his speech be fore the Senate that capped President Clinton's de fense.