Section 4: Executive Impeachment
Section 3 makes it clear the president must “take care”
that federal laws are executed. However,
if the president and vice president fail they can be removed from office if
they are impeached and convicted of treason, bribery, or other “high
crimes and misdemeanors.”
There has always been a great deal of discussion as to
what constitutes “high crimes and misdemeanors”. I will attempt to outline the historical
foundation for that phrase.
Jon Roland of the Constitution Society states that it had meaning and understanding to the Framers stating;
“to
the Framers, and found that the key to understanding it is the word
"high". It does not mean "more serious". It refers to those
punishable offenses that only apply to high persons, that is, to public
officials, those who, because of their official status, are under special
obligations that ordinary persons are not under, and which could not be meaningfully
applied or justly punished if committed by ordinary persons.”
He further states;
“Under the English
common law tradition, crimes were defined through a legacy of court proceedings
and decisions that punished offenses not because they were prohibited by
statutes, but because they offended the sense of justice of the people and the
court. Whether an offense could qualify as punishable depended largely on the
obligations of the offender, and the obligations of a person holding a high
position meant that some actions, or inactions, could be punishable if he did
them, even though they would not be if done by an ordinary person.”
He notes the same values applies today
in the Uniform Code of Military Justice, where civilian could not be punished,
those with “sworn” duties are held accountable for their failure to perform, and their “offenses
which bear on the subject's fitness for the duties he holds, which he is bound
by oath or affirmation to perform”, are punishable.
To the Founding Fathers the word
"perjury" – derived from a number of Latin terms including – periurium - meaning “a false oath, perjury, and would have
meant a "violation of an oath’".
The president must swear: "I do solemnly swear (or affirm) that I
will faithfully execute the Office of President of the United States, and will
to the best of my Ability, preserve, protect and defend the Constitution of the
United States."
“He is bound by this oath in all matters
until he leaves office because he has assumed an official role and that role is
that of a “witness under oath” for the duration of his testimony”’, i.e. his
term of office. That’s what perjury a “high
crime” as it is a crime of high office. So when the President swears to "faithfully
execute the Office of President of the United States" and to
"preserve, protect and defend the Constitution of the United States",
and fails to do so he is guilty of a “high crime”.
The author notes that to hold a “high” office
comes to everyone as a privilege” – it isn’t a right, and removal is based on
the preponderance of evidence, even if that "high crime or
misdemeanor" is “referred to by a
different name, when considered as such. Thus, an offense like
"obstruction of justice" or "subornation of perjury" may
become "abuse of authority" when done by an official bound by oath.
As such it would be grounds for impeachment and removal from office, but would
be punishable by its statutory name once the official is out of office.” Therefore the author notes that the
President “is not protected by
"plausible deniability". He is legally responsible for everything
that everyone in the executive branch is doing.”
The last statement by the author is
insightful. He says; “The impeachment and removal process should
be a debate on the entire field of proven and suspected misconduct by federal
officials and agents under this president, and if judged to have been excessive
by reasonable standards, to be grounds for removal, even if direct complicity
cannot be shown.”
The authors of the Constitution were well educated and
understood the historical foundation for their work. The first use of impeachment for a public
official was in England in 1386 with the “impeachment of the King’s Chancellor, Michael de la Pole, the 1st
Earl of Suffolk for breaking a promise to Parliament. Then there was the impeachment of a descendent
of the 1st Earl of Suffolk, William de la Pole, who was now the
first “Duke” of Suffolk in 1450 who was charged with “using his influence to
obstruct justice, cronyism, and wasting public money. Other charges against him
included acts of high treason.” “In
1621, Parliament impeached the King's Attorney General, Sir Henry Yelverton for
high crimes and misdemeanors. The charges included failing to prosecute after
starting lawsuits and using authority before it was properly his.”
“After the
Restoration the scope of the charge grew to include negligence, and abuse of
power or trust while in office. For example, charges in the impeachment of
Edward Russell, 1st Earl of Orford in 1701 included many violations
of trust and his position. In this case, he abused his position in the Privy
Council to make profits for himself; as Treasurer of the Navy he embezzled
funds; and as Admiral of the Fleet he got a commission for the pirate William
Kidd.”
Sources:
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