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Since the Constitution never codified or detailed what qualifies as high crimes and misdemeanors, isn't it whatever the House says it is? Technically, yes.
The Constitution defines several criteria for impeachment: treason, bribery or “other high crimes and misdemeanors." So treason and bribery are fairly straightforward. But high crimes and misdemeanors? That’s deliberately vague.
Of particular import is the term “misdemeanor.” Most people think this means a minor or lesser kind of criminal offense, as the term is legally used today. But it makes no sense to pair “high crime” with “misdemeanor” if “misdemeanor” means “minor crime.” The term “misdemeanor” was probably intended by the Framers of the Constitution to mean mis-demeanor, with the word “demeanor” referring to outward behavior or conduct. So in this context, “mis-demeanor” means “bad behavior or misconduct.”
So you could read the impeachment clause as “treason, bribery, or other high crimes or misconduct.”
When Bill Clinton was being impeached by the House in 1998, there was some dispute over whether perjury in a deposition in a civil case rose to the level of “high crimes and misdemeanors.” While perjury is undoubtedly illegal, one way of interpreting “high crimes” is that only very serious criminal offenses would be justification for impeachment. It’s not “any crimes,” it’s high crimes. But who decides what makes something a high crime? And if misdemeanor means “misconduct,” then can a president having an affair with an intern and then lying about it under oath qualify as such misconduct?
Congress got to decide the answers to these questions. And politics played a large role. One can assume that if the House was controlled by Democrats in 1998, or alternatively if it had been a Republican president accused of the same offenses while a Republican majority controlled the House, then Congress would have found that these offenses did not meet the definition of “high crimes and misdemeanors.”
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But in 1998, Congress decided that Clinton’s actions did rise to the level of an impeachable offense. And because Congress made that determination, it was an impeachable offense. Only the House gets to make that determination (although the Senate then gets to determine whether the charges in question justify removal from office, and in Clinton’s case it decided they did not).
So, technically, yes, Congress has very broad latitude to define “high crimes and misdemeanors,” and the only check on that power is that 2/3 of the Senate must agree that the charges in question justify removal in order for a president to be convicted. This by itself is meant to protect against a purely politically-motivated impeachment, as it’s unlikely a 2/3 majority in the Senate would support removal in such a case. But the House can define the terms “high crimes and misdemeanors” however it wants to.
Since the Constitution never codified or detailed what qualifies as high crimes & misdemeanors, isn't it basically whatever the House says it is? originally appeared on Quora—the place to gain and share knowledge, empowering people to learn from others and better understand the world. You can follow Quora on Twitter, Facebook, and Google+. More questions:
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