Article 2, Section 4 — Historical Background On Impeachable Offenses

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Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The concept of impeachment and the standard of “high crimes and misdemeanors” [1](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn1art2 " For more on the historical background of the impeachment clauses, see ; ; . ") originally stems from English Parliamentary practice.[2](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn2art2 " See The Federalist No. 65 (Alexander Hamilton); Raoul Berger, Impeachment: The Constitutional Problems 54 (1973); H. Comm. on the Judiciary, Constitutional Grounds for Presidential Impeachment, 93d Cong. 4 (Comm. Print 1974) [hereinafter Constitutional Grounds]. ") The House of Commons impeached and tried before the House of Lords both private citizens and government officers, but not the Crown itself, for offenses considered beyond the reach of the common-law criminal courts.[3](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn3art2 " Berger, supra note 2, at 59; Constitutional Grounds, supra note 2, at 4. The availability of impeachment in England appears to have depended on whether the offense endangered the government or society. See Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805 3 (1984). ") The tool was used by Parliament to corral the power of the Crown and police political offenses committed by ministers and favorites of the King.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn4art2 " Constitutional Grounds, supra note 2, at 4–5. ") Impeachment applied to conduct that damaged the state or subverted the government.[5](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn5art2 " Id. (citing John Rushworth, The Tryal of Thomas Earl of Stafford, in 8 Historical Collections 8 (1686)). ") The standard of “high crimes and misdemeanors” appears intended to address conduct involving an individual’s abuse of power or office.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn6art2 " Id. at 4–6. ") Punishment for a conviction could include a range of penalties, including imprisonment, fines, or even death.[7](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn7art2 " Berger, supra note 2, at 67. ")

The American colonies adopted their own impeachment procedures that informed the Framers’ understanding of impeachment.[8](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn8art2 " See Hoffer & Hull, supra note 3, at 15–26. ") These traditions extended into state constitutions established during the early years of the Republic. During the years of 1776–1787, states adopted into their constitutions’ impeachment provisions that limited impeachment to government officials and restricted the punishment for impeachment to removal from office with the possibility of future disqualification from office.[9](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn9art2 " See id. at 68–95; see, e.g., Mass. Const. of 1780 art. VIII, § 2; art. VI, § 3; New York Const. of 1777 art. XXXIII. ") At the state level, the body charged with trying an impeachment varied.[10](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn10art2 " See Gordon S. Wood, The Creation of the American Republic 141 (1969); see, e.g., N.Y. Const. of 1777 arts. XXXII–XXXIII (providing that impeachments be tried before a court composed of Senators, judges of the Supreme Court, and the chancellor). ")

The standards for impeachments adopted at the Constitutional Convention were thus inspired by both English and colonial practice, but ultimately differed in structure from both these traditions. In particular, the Framers aimed to narrow the scope of impeachable offenses and persons subject to impeachment as compared to English practice.[11](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn11art2 " See Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 908–12 (1999). ") For example, while according to English practice at the time of the Constitution’s enactment, impeachment extended to anyone except a member of the royal family, the federal Constitution limited impeachment to federal government officers (including the President and Vice President).[12](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn12art2 " 15 The American and English Encyclopedia of Law 1061, 1064 (David S. Garland & Lucius P. McGehee eds., 1900). ") In addition, whereas the English Parliament never formally defined the parameters of what counted as impeachable conduct, the Framers restricted impeachment to treason, bribery, and high crimes and misdemeanors.[13](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn13art2 " Id. at 1066. Further, the English House of Lords could convict on a bare majority, while the Framers required a two-thirds vote of the Senate to remove an officer. Id. at 1071. The House of Lords could also require any punishment upon conviction, while the federal Constitution limits the results of impeachment to removal from office and, potentially, disqualification from holding federal office in the future. Id. at 1072. Finally, British judges could be removed for a variety of reasons, while impeachment is the sole remedy to remove federal judges under the Constitution. ") In English practice, the Crown could pardon individuals following an impeachment conviction.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn14art2 " 15 The American and English Encyclopedia of Law, supra note 12, at 1071–72. ") In contrast, the Framers restricted the pardon power from being applied to impeachments, rendering the impeachment process essentially unchecked by the Executive Branch.[15](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn15art2 " See U.S. Const. art. II, § 2, cl. 1 (providing that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment” ). ")

The Framers also rejected a proposal made during the Constitutional Convention to include—in addition to treason and bribery[16](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn16art2 " 2 James Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 508 (Gaillard Hunt & James Brown Scott eds., 1987). ") — “maladministration” as an impeachable offense, which would have presumably incorporated a broad range of common-law offenses.[17](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn17art2 " 2 The Records of the Federal Convention of 1787, at 550 (Max Farrand ed., 1911) [hereinafter Farrand’s Records; see Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1, 14–15 (1989). ")
Although “maladministration” was a ground for impeachment in many state constitutions at the time of the Constitution’s drafting,[18](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn18art2 " Gerhardt, Constitutional Limits, supra note 17, at 29; Constitutional Grounds, supra note 2, at 11; Charles Black, Impeachment 29 (1974). ")
the Framers instead adopted the term “high Crimes and misdemeanors” from English practice. James Madison, at the Constitutional Convention, objected to the inclusion of “maladministration” as grounds for impeachment because such a vague impeachment standard would “be equivalent to a tenure during pleasure of the Senate.” [19](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn19art2 " 2 Farrand’s Records, supra note 17, at 550; Black, supra note 17, at 29–30. ")
Immediately thereafter, the Convention voted to include “high crimes and misdemeanors” instead.[20](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn20art2 " 2 Farrand’s Records, supra note 17, at 64–65; Black, supra note 17, at 28. ")
Arguably, the Framers’ rejection of such a broad term supports the view that congressional disagreement with a President’s policy goals is not sufficient grounds for impeachment.[21](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn21art2 " Black, supra note 17, at 30. ")

Of particular importance to the understanding of the practice in America were the roughly contemporaneous British impeachment proceedings of Warren Hastings, the governor general of India, which were transpiring at the time of the Constitution’s formulation and ratification.[22](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn22art2 " Constitutional Grounds, supra note 2, at 7; Hoffer & Hull, supra note 3, at 113–15. ")
Hastings was charged with high crimes and misdemeanors, which included corruption and abuse of power.[23](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn23art2 " Constitutional Grounds, supra note 2, at 7; Hoffer & Hull, supra note 3, at 113–15. ")
At the Constitutional Convention, George Mason positively referenced the impeachment of Hastings. At that point in the Convention, a proposal to define impeachment as appropriate for treason and bribery was under consideration. George Mason objected, noting that treason would not cover the misconduct of Hastings.[24](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn24art2 " 2 The Records of the Federal Convention of 1787, supra note 17, at 550. ")
Moreover, he thought impeachment should extend to “attempts to subvert the Constitution.” [25](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offenses#fn25art2 " Id. ")
Accordingly, he proposed that maladministration be included as an impeachable offense, although, as noted earlier, this was eventually rejected in favor of “high crimes and misdemeanors.” [26](https://www.law.cornell.edu/constitution-conan/article-2/section-4/historical-background-on-impeachable-offense