‘High crimes and misdemeanors’

Sorry Dems, ‘High crimes and misdemeanors’ are not whatever The House of Representatives says they are

By Roger Luchs

It seems to be ”accepted wisdom” that impeachment and prosecution in the Senate are fundamentally political acts, along the lines of the equally “accepted wisdom” that a grand jury will even “indict a ham sandwich.” One need only review the report of the House Judiciary Committee charged with considering the impeachment of President Nixon to recognize that the “accepted wisdom” is sorely lacking.  Implicit in its “logic” is that, in light of the separation of powers doctrine, impeachment proceedings are unreviewable by a court and thus, whatever Congress does in in the case of impeachment is “the law of the land”, no matter how arbitrary or capricious.

But if that is so, why did the Framers include in the Constitution the specific legal terms “treason”, “bribery” and “other high crimes and misdemeanors,” and why did they  designate the Chief Justice, the highest-ranking  member of the judicial branch to preside over the impeachment trial in the Senate or, for that matter, empower the Senate to impeach judges as well as a sitting president?

Does the Constitution bar the Chief Justice from doing what trial and appellate judges do every day, i.e., entertain motions to dismiss cases for failure to state a claim.  Courts have specific rules that allow for such motions – which address situations in which accepting as true all facts stated in a complaint, the plaintiff has failed to state a valid legal claim recognized at law. The  Senate can adopt a similar rule if the House sends over to it articles of impeachment, thereby insuring the Chief Justice can decide such a referral on motion, if he determines the House has failed to state a claim, I.e. the facts alleged do not meet the legal definition of, for instance, “high crimes and misdemeanors”

In 1974, the House Judiciary Committee, researching ancient English law dating back to the 14th century, adopted the English construction of that phrase, in effect imposing a standard for the Senate to use in adjudicating whether the acts alleged meet that definition adopted by the House.  And in a report issued on this very point, the Committee concluded:

It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it

According to scholarly sources, impeachable acts include “not prosecuting cases” and “arresting a man to keep him from running for Parliament.”‘

If President Trump did not investigate and prosecute potential crimes committed by Joe and Hunter Biden, and others, might that not itself be impeachable.  And could it not be argued that Obama’s apparent authorization of the arrest and prosecution of Trump campaign personnel and others, all to block Trump from continuing his campaign for president, were impeachable offenses on the part of Obama.  And to the extent Biden and other officials are subject to removal through impeachment, they too engaged in ostensibly impeachable offenses, e.g., the illegal surveillance of American citizens, lying to Congress about that surveillance, and lying to the FISA court that they too have engaged in “high crimes and misdemeanors.”

Adam Schiff and his colleagues apparently ignored, or simply tossed into the circular file, the serious, studied conclusions of the Watergate-era Judiciary Committee, at the time, of course, controlled by the Democrats.  Their hubris and disdain for that Committee’s recitation of what they concluded was controlling “law” will cost them dearly.”


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