Article II, Section 4: Removal by Impeachment
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.
This clause, together with Article I, Section 3, Clause 7, defines the scope of the impeachment power. The President and Vice President, as the two elected officers of the executive branch, are specifically called out, but the scope of impeachment extends to all “civil officers” of the government. This includes judges and officers of the court, but does not include members of Congress, who are subject to removal only by their own house of Congress. The clause species only civil officers are subject to impeachment; military officers are subject instead to dismissal by courts-martial, which are Article I courts.
Treason and bribery are called out as offences demanding impeachment. All other charges are at the discretion of Congress, which decides whether any misconduct in office is a high crime or misdemeanor. The term is understood to mean misconduct in the special duties of a public official, standing above the duties of ordinary citizens, and it is deliberately broad. Since the Supreme Court has declined to review any Senate convictions, wearing a bad toupee is a high crime or misdemeanor if Congress says it is. Historically, the tendency has been the other way, and it is our view that a great many impeachable offenses have been ignored by the House or have failed of conviction in the Senate. The acquittal of Donald Trump for his dereliction of duty on January 6, 2021, would seem to have set a new high bar for conviction, though a number of Republican senators claimed that they voted to acquit only because Trump was already out of office at the time and was therefore no longer subject to a Senate trial. (Legal scholars are divided on this question.) We are of the view that this was an error, and officers impeached may be convicted even after leaving office, the penalty then being disqualification from holding any future office. We further believe that the Republican Party would have been done an immense favor if its Senators had voted accordingly.
No official has ever been impeached for treason. (A number of members of Congress were expelled by their respective houes for treason during the Civil War.) Three have been impeached specifically for bribery. The remaining 18 impeachments have been for “high crimes and misdemeanors”. These include everything from perjury to drunkenness to partiality in their decision making. Oddly, Nixon was not impeached for income tax fraud, on the grounds that this was private misconduct not related to his duties as President.
We are of mixed views on the latter. Some of us agree that the term of art, “high crimes and misdemeanors”, clearly points to impeachment only for misconduct related to public duties. Others among us point out the absurdity of there being no mechanism to remove from office an officer convicted, for example, of forcible rape, an ordinary crime unrelated to the duties of office. Indeed, it seems to us that a President credibly accused of ordinary criminal conduct is best first removed from office by the Senate: The criminal investigation and trial that follow are then more likely to render impartial justice, since political considerations are much lessened with the offender already out of office and disqualified from future office.