What Are “High Crimes and Misdemeanors”?

Washington, D.C. (Accredited Times) — The Constitution allows for impeachment and removal from office for “Treason, Bribery, or other high Crimes and Misdemeanors.”  Treason and bribery are both self-explanatory.  But what exactly are “high Crimes and Misdemeanors”?

The Accredited Times contacted a team of legal experts and delved carefully into this term.  Our internal legal team also reviewed and assembled the key precedent on the matter.  The following analysis describes the law in an in-depth manner for the benefit of our accredited readership base.

The Definition of “High Crimes” and “High Misdemeanors”

According to experts, the terms “crimes” and “misdemeanors” are both legal terms of art, referring to offenses punishable by confinement, fines, penalties, and/or forfeitures.

“Crime” means “an act that the law makes punishable; the breach of a legal duty treated as the subject-matter of a criminal proceeding,” and “misdemeanor” means “a crime that is less serious than a felony and is usually punishable by fine, penalty, forfeiture, or confinement (usually for a brief term) in a place other than prison (such as a county jail).”  In re App. of Comm. on Jud., Grand Jury Action No. 1948, Slip Op. p. 32 & n.23 (BAH) (D.D.C. Oct. 25, 2019).  “The variation ‘high crime’ similarly means ‘a crime that is very serious, though not necessarily a felony,’ and ‘high misdemeanor’ historically meant in English law ‘a crime that ranked just below treason in seriousness.'”  Id.; see also State v. Kelly, 15 N.W.2d 554, 564 (Minn. 1944); Ross v. Crofutt, 80 A. 90, 91 (Conn. 1911).  The term “high” modifies both “misdemeanors” and “crimes” in “high Crimes and Misdemeanors.”

In the Andrew Johnson impeachment in 1868, the House of Representatives impeached Johnson for “abuse of power“; the Senate, however, rejected the allegation in part because “abuse of power” is neither a crime nor a misdemeanor.  In 1956, John F. Kennedy’s “Profiles in Courage” lauded the Senate for acquitting Johnson, viewing the impeachment itself as an abuse of power.

In a case considered during the Nixon impeachment, one court discussed the general nature of offenses covered by the term “high crimes and misdemeanors.”  The court explained that “high crimes and misdemeanors” include offenses like “theft, bribery, perjury, forgery and embezzlement,” as well as “high misdemeanors,” which constitute offenses of “a higher grade than misdemeanor” that are “of a public character and indictable at common law.”  In re Qualification of Voters, 8 Haw. 589, 590-91 (1892) (citing 1 Russell on Crimes, 79-80; 4 Wendell’s Blackstone, 121; Coke, 3d Inst., 36.)); accord McAnally v. Williams, 35 Tenn. 26 (1855) (“high misdemeanor” is a case “involving moral turpitude, and subjecting the party to an indictment”); Hayden v. Com. of Ky., 49 Ky. 125, 126 (Ky. Ct. App. 1849) (“high misdemeanor” refers to cases “when the indictment may be regarded as exclusively for [a] public offence, and not for [a] private injury”).

Various cases describe “theft, bribery, perjury, forgery and embezzlement” as “high crimes” and “high misdemeanors”:

• Theft: Smith v. Donnelly, 66 Ill. 464, 466 (1873) (horse theft is a “high misdemeanor”); Foster v. State, 68 Tenn. 353, 354 (1878) (transporting stolen property is a “high misdemeanor”); Bolton v. State, 45 Tenn. 650, 657 (1868) (grand larceny is a “high crime”).
• Bribery: Bradley’s Lessee v. Bradley, 4 U.S. 112, 114 (1792) (bribery is a “high misdemeanor”); Com. of Ky. v. Barry, 3 Ky. 229, 243 (Ky. Ct. App. 1808) (same); State ex. rel Gibson v. Friedley, 34 N.E. 872, 875 (Ind. 1893) (corruption is a “high crime”); Clancey’s Case, EngR 38, Fort. 208, 92 ER 821 (1748) (bribery is a “high misdemeanor”).
• Forgery: Seely v. People of the State of Ill., 27 Ill. 173, 174 (1862) (forgery is a “high crime”); Lynch of Com. of Pa., 88 Pa. 189, 194 (1879) (forgery is a “high misdemeanor”); Rohr v. State, 38 A. 673, 674 (N.J. 1897) (counterfeiting and forging checks is a “high misdemeanor”); Clary v. Com. of Pa., 4 Pa. 210, 213 (1846) (counterfeiting is a “high misdemeanor”).
• Perjury: Brown v. State, 225 Md. 610, 616 (1961) (at common law “[p]erjury was treated as a high misdemeanor”); Scott v. Cook, 62 Ky. 314, 315 (Ky. Ct. App. 1864) (same); The Merch.S’ v. The Tr.S Of The Masonic Hall, 62 Ga. 271, 279 (1879) (“Perjury is a high crime”); In re Breidt, 94 A. 214, 217 (N.J. Ch. 1915) (perjury is a “high misdemeanor”); Lynch of Com. of Pa., 88 Pa. 189, 194 (1879) (same); Rex v. Mudie, EngR 935, 1 M. & Rob 128, 131, 174 ER 44, 45 (1831) (same).
• Embezzlement: Davis v. Gelhaus, 4 N.E. 593, 597 (Ohio 1886) (embezzlement is a “high crime and misdemeanor”); Hussey v. King, 3 S.E. 923, 924 (N.C. 1887) (embezzlement is a “high crime”); Wayne Cnty v. Bressler, 49 N.W. 782, 784 (Neb. 1891) (same).

Notably, prior precedent establishes that “perjury” constitutes an impeachable offense, yet the Senate rejected removing Bill Clinton from office despite unassailable evidence that Clinton perjured himself and even suborned perjury.  However, according to experts, the exception seems to stem from the well-established Clinton exemption from compliance with law; this exemption does not apply to any other political figure, especially Republicans.

Courts have also held that “obstruction” may constitute a “high crime” or “high misdemeanor,” but they have only done so in the context of bribery, see, e.g., Clancey’s Case, EngR 38, Fort. 208, 92 ER 821 (1748) (bribe of 300 guineas to prevent evidence in a treason case), evidence tampering, see, e.g., R. v. Russell, 1 Legge 110 (S. Ct. of New South Wales 1839) (destruction of forensic evidence), and violations of court orders, see, e.g., Thomas v. Mead, 36 Mo. 232, 243 (1865) (criminal failure to appear in court “as official duty required him to do” despite court orders to the contrary).  No case has found “obstruction of Congress” or “obstruction of justice” simply for objecting to subpoenas or claiming executive privilege absent a court order.

So aside from these offenses, what kind of offenses qualify as “high crimes and misdemeanors”?  Here are a few offenses that should give the accredited reader additional context on the meaning of the phrase.

Abortion

Under the common law, abortion qualifies as a “high misdemeanor,” meaning that any judge or officeholder who promotes it is subject to impeachment.  See, e.g., State v. Slagle, 82 N.C. 653, 655 (1880) (“There is no doubt at common law the destruction of an infant unborn is a high misdemeanor, and at an early period, it seems to have been murder.”) (quoting Wharton, Criminal Law § 1220); State v. Rogers, 116 S.W. 469, 472 (Mo. App. 1909) (abortion is a “high misdemeanor” “whether or not death results to the woman or child”); State v. Wilson, 75 A. 776, 777 (N.J. 1910) (abortion is a “high misdemeanor”); State v. Raymond, 273 A.2d 399, 113 N.J.Super. 222, 227 (N.J. Super. App. Div. 1971) (same); see also Henry de Bracton, De Legibus et Consuetudinibus Angliae, vol. 2, p. 341, 408 (c. 1235) (abortion is criminal homicide under the common law and is also civilly tortious); 18 U.S.C. §  2 (criminal offense for anyone who “causes” or “aids, abets, counsels, commands, induces or procures” an underlying offense).

As a result, all four Democrat-appointed Supreme Court justices — Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor — are subject to impeachment, as are numerous lower court judges.  The Constitution requires impeachment.

Causing, Inducing, Aiding, and/or Abetting Illegal Immigration

Causing, inducing, aiding, abetting, counseling, and/or procuring illegal immigration is also a “high misdemeanor” subject to impeachment.  Under well-established precedent, the “intrusion, forcible or clandestine, upon the territory of a sovereign power, is an offence malum in se.”  Com. of Pa. v. Franklin, 4 U.S. 255, 259 (1802).  “It is an attack, not only upon the national property, but upon the national sovereignty.  If done by individual citizens of another state, it is a high misdemeanor; and if done with the sanction of their government, it would be a just cause of war.”  Id. 

Of course, anyone who commits illegal immigration is guilty of a criminal offense, as is anyone who “causes” or “aids, abets, counsels, commands, induces or procures” the offense.  See 18 U.S.C. §  2.  Consequently, officeholders and judges contributing to illegal immigration are subject to impeachment, as are officeholders involved in “sanctuary city” or “sanctuary state” policies.

Supporting Pro-Illegal Immigrant Groups, Including La Raza and Antifa

Under the Constitution, protesters have a First Amendment right to peaceably assemble; however, groups do not have the right to gather for purposes of “resisting a statute,” including resisting immigration laws as part of “#Resistance.”  See, e.g., Ex parte Bollman & Ex parte Swartwout, 8 U.S. 75, 128 (1807) (gathering “to resist or oppose the execution of any statute of the United States by force” is a “high misdemeanor”); Aron v. City of Wausau, 74 N.W. 354, 355 (Wis. 1898) (gathering “to resist a statute, but not to overthrow the government” is “not treason, though it may be riot or a high misdemeanor”).

In addition, joining, aiding, abetting, or encouraging groups promoting hostility or opposition to the United States — such as La Raza or Antifa — likewise constitutes a “high misdemeanor.”  See, e.g., State v. Gabriel, 112 A. 611, 612 (N.J. 1921) (joining an organization or aiding, abetting, or encouraging an organization “for the purpose of inciting, abetting, promoting or encouraging hostility or opposition to the government of the United States” is a “high misdemeanor”).  Accordingly, any judge or officeholder who supports pro-illegal-immigrant groups like La Raza or Antifa is also subject to impeachment.

Voter Fraud, Including Illegal Alien Voting

Illegal voting is also a “high misdemeanor” subject to impeachment.  See, e.g., Crockett v. McLanahan, 72 S.W. 950, 950 (Tenn. 1903) (illegal voting is a “high misdemeanor”).  As a result, judges and politicians involved in facilitating voting by illegal aliens — including by unlawfully eliminating voter identification requirements and busing illegal voters into voting precincts — are similarly subject to impeachment.

Slandering the President and Violating the President’s Lawful Orders

Slandering the president likewise amounts to a “high misdemeanor,” as does violating his lawful orders, such as orders relating to border security and his foreign policy determinations in the Ukraine and elsewhere.  See, e.g., Green v. Green, 83 ER 795, 1 Keb. 34, EngR 1472 (1685) (slander is a “high misdemeanor”); Appeal of Hartranft, 85 Pa. 433, 454 (1878) (“It is also a high crime to disobey the [chief executive’s] lawful command or prohibition.”) (citing King v. Lord Preston, 1 Salk 278 (1738) (Lord Holt, C.J.)).  As such, officeholders who falsely accused the president of “collusion,” and officeholders who violated his lawful orders are subject to impeachment.

Deciding to Impeach or Convict the President Based on Hearsay Before Reviewing the Full Evidence

Impeaching or convicting the president without actually reviewing the evidence is likewise an impeachable offense, particularly where the evidence is based on hearsay.  See, e.g., Boon v. State of Ga., 1 Ga. 618, 629 (1846) (misconduct in forming a “hasty” opinion based on non-court statements in a legal proceeding, and further expressing the opinion to others, is a “high misdemeanor”); Bradley’s Lessee v. Bradley, 4 U.S. 112, 114 (1792) (misconduct in hearing testimony not delivered in a legal proceeding is a “high misdemeanor”).  As a result, where the Chairman of the House Judiciary Committee decides to impeach the president, even before having any evidence on the issue, he is guilty of an impeachable offense.  So too is the Chairman of the House Intelligence Committee guilty of an impeachable offense where he does the same based on hearsay from an alleged “whistleblower.”

Crimes Against Nature, Including Bestiality

Crimes against nature, such as bestiality, are also impeachable.  See, e.g., State v. Pitman, 121 A. 597, 598 (N.J. 1923) (“Sodomy, or the infamous crime against nature, committed with man or beast, shall be a high misdemeanor.”).  Progressive congressional candidate Cenk Uygur may have some problems on this issue, given his activities relating to “bestiality” and his support for “pleasuring an animal.”

https://twitter.com/MarkDice/status/1205626000559628288

Wars of Liberation Without Lawful Declarations of War

Engaging in “wars of liberation” against foreign states without a declaration of war also constitutes a “high misdemeanor” subject to impeachment.  See, e.g., Wibourg v. United States, 163 U.S. 632, 647 (1896) (preparing a “military expedition” against a foreign state without a declaration of war is a “high misdemeanor”); The Three Friends of the United States v. The Three Friends, 166 U.S. 1, 53 (1897) (arming a military vessel to commit hostilities against any foreign state without a declaration of war is a “high misdemeanor”); Gill v. Robert Oliver Executors & Glenn & Perrine, Trustees, 52 U.S. 529, 546 (1850) (military expedition against a foreign power without a declaration of war is a high misdemeanor); In re Gran Para, 20 U.S. 471, 488 (1822) (same).

Without a declaration of war, extrajudicial killings also fall within the jurisdiction of the civil law as opposed to the military law.  As a result, any premeditated homicides committed therein constitute murder, which is also a “high crime” or “high misdemeanor” and therefore subject to impeachment.  See, e.g., Denman v. State, 17 N.W. 347, 347 (Neb. 1883); Territory of New Mexico v. Yarberry, 2 N.M. 391 (1883); State v. Sides, 64 Mo. 383, 385 (1877); Williams v. Com. of Pa., 29 Pa. 102, 104 (1858).

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Hopefully, the Accredited Times has provided readers with some useful information on the scope of the term “high Crimes and Misdemeanors.”

Of course, like congressional progressives, the Accredited Times welcomes a vigorous standard for impeachment to ensure compliance with all of the laws of the land.  We have a lot of people to impeach.

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