Originally posted on The Federalist Society Blog
Outside of the phrase “treason, bribery, or other high crimes and misdemeanors,” the Constitution does not offer much guidance on what we might consider an impeachable offense. Luckily, the Founders’ debates at the Constitutional Convention keep us out of total darkness, providing a few scenarios and principles under which impeachment would be warranted.
Less than a week and a half before the close of the convention, George Mason revisited the Impeachment Clause of Article II, Section 4, which at that point only named “treason and bribery” as impeachable conduct. Mason wondered, “Why is the provision restrained to treason and bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences,” such as “attempts to subvert the Constitution.” Seconded by Elbridge Gerry, Mason moved to amend the phrase to become “treason, bribery, and maladministration,” the latter word a reference to a term in Blackstone’s Commentaries on the Laws of England, with which every Founder was familiar.
According to Blackstone, the “first and principal” high misdemeanor was “maladministration of such high officers, as are in public trust and employment.” James Madison objected to the term, calling it “so vague” that it would subject the tenure of public officials to the “pleasure of the Senate.” Gouverneur Morris agreed with Madison, noting that “an election of every four years will prevent maladministration.” Accordingly, Mason withdrew “maladministration” in favor of “other high crimes and misdemeanors.”
From this account, we learn two key principles of impeachment: 1) mere “maladministration” will not satisfy constitutional grounds for impeachment; and 2) “other high crimes and misdemeanors,” at a minimum, sufficiently covered the “many great and dangerous offences” Mason contemplated, including “attempts to subvert the Constitution.”
Alexander Hamilton further clarified in Federalist No. 65 that Congress could impeach for “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Hamilton specified . . .
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