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Thread: "High Crimes and Misdemeanors"

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    "High Crimes and Misdemeanors"

    I sometimes get so frustrated I have to get all pedantic! This is one of those times.

    There seem to be two extremes that motivate people's opinions on the subject of impeachment, and both are wrong: "High Crimes and Misdemeanors", as used in the Constitution does not imply the use of criminal standards, either to initiate impeachment or to remove an officer from office; nor is it a "purely political" decision, as is often argued. Rather it is a long-established and thoroughly sourced concept based upon the precept that "High" officials hold a position of public trust that requires higher standards of behavior and decorum than the ordinary person. "It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons." Meaning of "High Crimes and Misdemeanors" (Jon Roland, Constitution Society), or, Alexander Hamilton put it, "...those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

    "The framers sought to create a responsible though strong executive; they hoped, in the words of Elbridge Gerry of Massachusetts, that 'the maxim would never be adopted here that the chief Magistrate could do [no] wrong.'" (WaPo, Watergate Docs from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.) "[T]he framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments." If it is not clear from this history that Impeachment is not a criminal process, all doubt is removed by the language of the Constitution itself: "Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law." Art. I, Section 3. This was the understanding as well of Justice Joseph Storey in his Commentaries on the Constitution (1833)
    Not but that crimes of a strictly legal character fall within the scope of the power; but that it has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty.
    (Emphasis mine).

    Impeachment is a separate act from criminal conviction, and the rules that apply are necessarily different for a reason. Impeachment cannot be by the whim of the Congress, but is also not constrained by the limits of judicial determination of criminality.
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    Re: "High Crimes and Misdemeanors"

    Quote Originally Posted by NWRatCon View Post
    Impeachment cannot be by the whim of the Congress,
    False. The only thing at stake are reputations.

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    Re: "High Crimes and Misdemeanors"

    Quote Originally Posted by ecofarm View Post
    False. The only thing at stake are reputations.
    I was hoping for a little more substance and discussion than that.
    Mission: "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." ACLU. Why isn't every American a member?

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    Re: "High Crimes and Misdemeanors"

    Quote Originally Posted by NWRatCon View Post
    I was hoping for a little more substance and discussion than that.
    An off day for me.

    Ultimately, it is purely political. Were it criminal, it wouldn't be in congress. Congress can indict for any "high crime" they imagine including loss of public trust. The only thing on the line is everyone's reputation and that's how it's supposed to be. If the representatives of the people act in an egregious manner, they will be replaced. And it's their duty to dismiss a problem President for any reason.
    Last edited by ecofarm; 05-21-19 at 04:24 PM.

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    Re: "High Crimes and Misdemeanors"

    Quote Originally Posted by ecofarm View Post
    False. The only thing at stake are reputations.
    Agreed. The quoted bit in the OP makes it quite clear that "high crime and misdemeanors" was intended to be highly subjective.

    It seems like its up to the congress to determine what passes the test to impeach.

    If it doesn't convince 2/3rds, then it fails.
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    Re: "High Crimes and Misdemeanors"

    Quote Originally Posted by NWRatCon View Post
    I sometimes get so frustrated I have to get all pedantic! This is one of those times.

    There seem to be two extremes that motivate people's opinions on the subject of impeachment, and both are wrong: "High Crimes and Misdemeanors", as used in the Constitution does not imply the use of criminal standards, either to initiate impeachment or to remove an officer from office; nor is it a "purely political" decision, as is often argued. Rather it is a long-established and thoroughly sourced concept based upon the precept that "High" officials hold a position of public trust that requires higher standards of behavior and decorum than the ordinary person. "It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons." Meaning of "High Crimes and Misdemeanors" (Jon Roland, Constitution Society), or, Alexander Hamilton put it, "...those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

    "The framers sought to create a responsible though strong executive; they hoped, in the words of Elbridge Gerry of Massachusetts, that 'the maxim would never be adopted here that the chief Magistrate could do [no] wrong.'" (WaPo, Watergate Docs from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.) "[T]he framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments." If it is not clear from this history that Impeachment is not a criminal process, all doubt is removed by the language of the Constitution itself: "Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law." Art. I, Section 3. This was the understanding as well of Justice Joseph Storey in his Commentaries on the Constitution (1833) (Emphasis mine).

    Impeachment is a separate act from criminal conviction, and the rules that apply are necessarily different for a reason. Impeachment cannot be by the whim of the Congress, but is also not constrained by the limits of judicial determination of criminality.
    ^ The bizarro world view. Up is down, left is right, poor is rich... In the Constitution every word means whatever each person wants it to. For example "We the People" means "We the people of Latin America" to the Democratic Party. The right to "due process" means "no legal rights of any kind."

    To the OPer, "crime" doesn't mean "crime" and "misdemeanor" doesn't mean "misdemeanor." Rather, according to the OP message, "high crimes and misdemeanors" means "a majority of members in the House Of Representatives are in the opposite political party from the president."

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    Re: "High Crimes and Misdemeanors"

    Quote Originally Posted by WillyPete View Post
    Agreed. The quoted bit in the OP makes it quite clear that "high crime and misdemeanors" was intended to be highly subjective.

    It seems like its up to the congress to determine what passes the test to impeach.

    If it doesn't convince 2/3rds, then it fails.
    I'm going to take issue with that. It requires more than a subjective "feeling", or is intended to. Although I agree that "reputation" is a significant limiter. It is important to distinguish, though, impeachment versus removal. The process of investigation for impeachment may persuade some that their reputations will be more hurt by inaction than action.
    Mission: "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." ACLU. Why isn't every American a member?

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    Re: "High Crimes and Misdemeanors"

    Quote Originally Posted by NWRatCon View Post
    I ... criminality.
    If a Congress decided to engage in impeachment for offenses which did not seem to qualify as a high crime or misdemeanor, what recourse would the PotUS have?
    Could congress carry out the impeachment?
    Or is there some mechanism which would halt the impeachment process Congress decided to initiate?

    Is there someone or some mechanism which can prevent, undo, or overrule an impeachment Congress decides to enact?

    If Congress is the final word [except for the voters' subsequent retaliatory actions], then despite w/e definitions and explanations exist for the terms high crimes etc., it would seem that pragmatically, political will alone could be theoretically sufficient for an impeachment to occur.
    I may be wrong.

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    Re: "High Crimes and Misdemeanors"

    Quote Originally Posted by NWRatCon View Post
    I sometimes get so frustrated I have to get all pedantic! This is one of those times.

    There seem to be two extremes that motivate people's opinions on the subject of impeachment, and both are wrong: "High Crimes and Misdemeanors", as used in the Constitution does not imply the use of criminal standards, either to initiate impeachment or to remove an officer from office; nor is it a "purely political" decision, as is often argued. Rather it is a long-established and thoroughly sourced concept based upon the precept that "High" officials hold a position of public trust that requires higher standards of behavior and decorum than the ordinary person. "It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons." Meaning of "High Crimes and Misdemeanors" (Jon Roland, Constitution Society), or, Alexander Hamilton put it, "...those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

    "The framers sought to create a responsible though strong executive; they hoped, in the words of Elbridge Gerry of Massachusetts, that 'the maxim would never be adopted here that the chief Magistrate could do [no] wrong.'" (WaPo, Watergate Docs from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.) "[T]he framers intended impeachment to be a constitutional safeguard of the public trust, the powers of government conferred upon the President and other civil officers, and the division of powers among the legislative, judicial and executive departments." If it is not clear from this history that Impeachment is not a criminal process, all doubt is removed by the language of the Constitution itself: "Judgment in Cases of Impeachments shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law." Art. I, Section 3. This was the understanding as well of Justice Joseph Storey in his Commentaries on the Constitution (1833) (Emphasis mine).

    Impeachment is a separate act from criminal conviction, and the rules that apply are necessarily different for a reason. Impeachment cannot be by the whim of the Congress, but is also not constrained by the limits of judicial determination of criminality.
    That is indeed how they intended it. But since they didn't provide judicial review for conviction on articles of impeachment, a president can be impeached for having an annoying face just so long as enough votes are there.

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    Re: "High Crimes and Misdemeanors"

    Quote Originally Posted by NWRatCon View Post
    I'm going to take issue with that. It requires more than a subjective "feeling", or is intended to. Although I agree that "reputation" is a significant limiter. It is important to distinguish, though, impeachment versus removal. The process of investigation for impeachment may persuade some that their reputations will be more hurt by inaction than action.
    Yeah, I don't much care about the reputation angle, though I expect some in congress do.

    You provided in your OP (the quote) the strongest argument I've seen so far. I had actually requested something like that in a similar thread recently.

    Subjective is subjective. It will be "enough" for some and not enough for others. The voting in Congress determines the outcome.

    The more substance the "crime or misdemeanor" has the more convincing it is, and presumably the likelihood of a passing vote.

    That said, if we can somehow convince 2/3rds of Congress that Trump's should be removed from office because he has a stupid face, then it'll pass and he'll be removed from office.
    Ask about my German oranges!

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