The Impeachable Offense

Editor's Note: In 1974, a law professor named Charles L. Black published an extraordinary brief volume, entitled, Impeachment: A Handbook. It is the finest text on the subject I have ever read. With the subject of impeachment on many people's minds these days, we received permission from Yale University Press to republish the portion of Black's book that discusses the parameters of the impeachable offense. I also asked Jane Chong to write an essay applying the lessons of Black's book to our time. I recommend that readers take the time to read Black's book in its entirety, along with Jane's exceedingly thoughtful treatment of its importance in the age of Donald Trump.

—Benjamin Wittes

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We come now to the heart of the matter. What offenses are impeachable? The constitutional categories are "Treason, Bribery, and other high Crimes and Misdemeanors."

"Treason"

Here we are on smooth ground. The Constitution narrowly defines "treason," in Article III:

Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

There is, in short, no reason to think the word means anything other than this in the impeachment passage. This makes irrelevant a great deal of learning (interesting enough in itself) about treasons under English law, except insofar (and that is not very far) as the contemplation of these throws light on the interpretation of the exceedingly narrow American definition. Since the situation in our times has in no way implicated "treason," the subject may be put to one side.

"Bribery"

The first point to be made here is that bribery may mean the taking as well as the giving of a bribe. At the Constitutional Convention, Gouverneur Morris gave the instance of Charles II, who "was bribed by Louis XIV."

As to both the taking and giving of bribes, several cases that have lately been in the spotlight remind us that the states of mind of giver and of recipient are all important. There is nothing wrong with receiving a campaign contribution from dairy interests; there is nothing wrong in raising the price-support on milk. The question is as to the connection between the two events. An old English judge said that "The Devil himself knoweth not the heart of a man." But courts have to try, and continually do try, to work out the truth about intents and motives, for these are often (in bribery cases as elsewhere) of the very essence of the charge.

Is it "bribery" (or attempted "bribery") to suggest to a federal judge, engaged in trying a case crucial to the executive branch, that the directorship of the Federal Bureau of Investigation might be available? It is not wrong to offer a good district judge an important job. Almost all district judges, almost always, have government cases pending before them, in some number. Again, it is motive or intent that is crucial and that is hard to prove.

Careful, patient inquiry into and weighing of the facts is essential before one even begins to judge, in cases such as these. Beyond doubt, such cases are suspicious, but suspicion is not enough. On the other hand, it is not always a hopeless task, though it is usually a very difficult one, to establish improper motives on circumstantial evidence. In cases such as those here used as examples, there is nothing a conscientious congressman or senator can do but to suspend judgment until all the evidence is heard and analyzed.

"Other high Crimes and Misdemeanors"

This is the third, catchall phrase in the formula designating impeachable offenses. The reader will hardly need to be told that it must generate, and has generated, great difficulties of interpretation. Some definite things can be said about its extent, but we will be left with an area of considerable vagueness. Let us take the definite things first.

It would be well to start with the one and only discussion of the phrase at the 1787 Constitutional Convention. The day was September 8, 1787, just nine days before the Constitution was signed and transmitted for the adherence of the states. The impeachment provision, as reported out by the last of the convention committees (except the final one charged only with polishing the style of the Constitution), listed "treason and bribery" as the only grounds for impeachment and removal. The colloquy we need to look at was brief, taking perhaps five minutes:

The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up.

Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined— As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration". Mr. Gerry seconded him—

Mr Madison So vague a term will be equivalent to a tenure during pleasure of the Senate.

Mr Govr Morris, it will not be put in force & can do no harm— An election of every four years will prevent maladministration.

Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemeanors"

On the question thus altered

N. H— ay. Mas.— ay Ct. ay. (N. J. no) Pa no. Del. no. Md ay. Va. ay. N. C. ay. S. C. ay.* Geo. ay. [Ayes—8; noes—3.]