'Impeachable offenses' as the Framers saw it Starr challenge: Congress owes people a strict construction of 'high crimes and misdemeanors.'

September 11, 1998

WHAT is required to impeach the president of the United States? What terrible thing must he or she have done to put the nation to such trauma?

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.

-- U.S. Constitution

Legal scholar Raoul Berger in his celebrated 1973 book, "Impeachment: The Constitutional Problems," addressed this. He said again and again, in varying vocabulary, that it must be a crime of magnitude against the state, against the community, that it need not be an indictable offense but it must be a "great offense."

The intent of the Framers, inspired by the common law of England, especially the power struggles of the 17th-century English revolution, was to guard against usurpation of power, subversion of the Constitution or reckless endangerment of the nation.

Professor Berger traced the term "high misdemeanor" to 1386, meaning a terrible crime against the state, a political crime in the highest sense. Fearing that phrase was too narrow and technical, the Framers broadened it to "high crimes and misdemeanors." "High" modifies both "crimes" and "misdemeanors." To meet that test requires something terrible on a large scale.

The Oxford English Dictionary gives the first definition of misdemeanor: "Evil behavior, misconduct. Now rare." Its second definition: "Law. One of a class of indictable offenses which are regarded as less heinous than those called felonies." That is the common meaning in American usage today. But the dictionary also includes a definition of "high misdemeanor" from 1706, "a crime of a heinous nature, next to high treason." That is what the Framers meant.

Independent counsel Kenneth Starr has been laboring to tie President Clinton to an indictable crime. But little attention so far has been paid to meeting the test of great offenses, crimes against the state or Constitution.

To put the nation to such trauma and humiliation, a mere "misdemeanor" will not suffice. It must be a "high misdemeanor" in the time-hallowed meaning of that term. An effort to overturn the election of 1996 for something less would demean the nation.

Pub Date: 9/11/98

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