Do the President’s Actions Constitute “High Crimes and Misdemeanors”?

As you know, the House of Representatives is currently carrying out an impeachment inquiry against President Trump. This investigation was sparked by a phone call (and circumstances surrounding the call) he had with the Ukrainian President Volodymyr Zelensky. You can read more about the call and surrounding circumstances here and here.

There are many people, both partisan and non-partisan, that believe the President’s actions are  unconstitutional and that they warrant impeachment. Other people believe that either the President has done nothing wrong at all or that if he has, his actions in no way warrant impeachment.

Why Do People Disagree about Whether the President’s Actions are Impeachable?

One of the difficult things about deciding whether or not the President’s actions are impeachable is that the Constitution does not designate an exact action (or set of exact actions) that warrant impeachment. Rather, it designates three categories of actions that warrant impeachment: treasonous actions, bribery, and actions that constitute “high crimes and misdemeanors”.

Here is the line in the Constitution that speaks to presidential 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 is in Article II, Section 4 of the Constitution, which you can read here.)

Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy

What Constitutes Treason?

The Constitution also explains in more depth what actions Constitute treason in Article III, Section III. Here is what it says:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

(You can read the Constitution in its entirety here.)

Do the President’s Actions Constitute Treason?

It is clear from this description that he did not commit treason. For example, there is no evidence that he levied war against the U.S. or gave comfort to its enemies. No one is accusing of him of this.

There are some concerns that he did indeed offer a quid pro quo to Ukraine which is a bribe. If what he did was a bribe, that would be impeachable.

I am not going to focus on whether or not what the President did was a quid pro quo or a bribe (you can read more about this here if you like). Rather, I want to focus on whether any of the President’s actions constitute “high crimes and misdemeanors”.

What Constitutes “High Crimes and Misdemeanors”?

It can be tricky to figure out what types of actions the writers of the Constitution believed meet the description of “high crimes and misdemeanors” because they did not include in the Constitution a further description of such actions, like they did for actions that rise to the level of treason.

But that doesn’t mean it is impossible to figure out what they meant by the phrase.

James Madison took extensive notes during the Constitutional Convention, including during the discussion in which the delegates debated the issue of impeachment and which actions warranted presidential impeachment. You can examine those notes here, and we will examine them shortly. First, let’s review some history.

James Madison

England, Monarchs, and Checks and Balances

The writers of the Constitution were especially concerned that the Constitution contain adequate checks and balances for all the rulers and the branches of government. They were well-acquainted with English Parliament’s struggle with monarchs who wished to rule with complete, unchecked power. England had experienced long, drawn-out bloody wars that resulted from such oppressive actions by its monarch. You can read more about this here and also in this article if you scroll down to the section, “Why Do We Have Impeachment?”)

Because they were so familiar with monarchical abuses of power, the writers of the Constitution were adamant that the U.S. Constitution must have a system of checks and balances whereby the various branches of government—the executive, legislative, and judicial branches—could check the power of one another so that no branch of the government could rule like a tyrannical English monarch. (You can read more about checks and balances in our government and Constitution here.)

The writers of the Constitution wrote the possibility of presidential impeachment into the Constitution as a check and balance on presidential power so that presidents could not rule like tyrannical English monarchs.

How Does This Relate to High Crimes and Misdemeanors?

Understanding the constitutional writers’ concern with checks and balances makes it easier to understand the historical and political context that informed their ideas about impeachment. Fortunately, we also have their direct words about these issues. (Remember, James Madison took notes during the entire Constitutional Convention.)

Some of the Founding Fathers thought that a sitting president should not be able to be impeached. They believed that term limits were an appropriate check and balance for presidential power, and some believed that if the legislative branch of government could impeach the president, it would make the president beholden to the legislative branch.

Other delegates to the Continental Congress strongly disagreed. They believed presidential impeachment was a necessary possibility, and thanks to James Madison, we have a record of their words directly stating why they thought so. Here are some of the most detailed reasons. You can read the entire discussion here:

John Davie said, “If [the president] be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected.”

James Madison said that the president should be impeached for “incapacity, negligence or perfidy  [deceitfulness, untrustworthiness]”. Madison added, “The limitation of the period of his service, [is] not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”

Mr. Randolph said,  “The Executive will have great opportunitys [sic] of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands.”

Mr. Morris said, “[The President] may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in forign [sic] pay, without being able to guard agst. [sic] it by displacing him.”

Presidential Impeachment in the Constitution

Of course, in the end, the delegates decided to include the possibility of presidential impeachment in the Constitution, and it was ideas like the ones above that informed their inclusion of the phrase high crimes and misdemeanors.

From direct statements of the constitutional writers, as well as other legal documents, non-partisan constitutional groups, like the Congressional Research Service, have suggested that by the phrase high crimes and misdemeanors, the writers of the Constitution meant the following: “(1) improperly exceeding or abusing the powers of office; (2) behavior incompatible with the function and purpose of the office; (3) misusing the office for an improper purpose or for personal gain.”1

After the Constitution was ratified, James Madison (along with John Jay and Alexander Hamilton) wrote the Federalist Papers, a document influential on our Constitutional tradition. In Federalist Paper No. 65, Hamilton defined impeachable offenses as, “those offences [sic] which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

Alexander Hamilton

Do President Trump’s Actions Match the Description of High Crimes and Misdemeanors?

The question now, of course, is whether President Trump’s actions are any of the above described actions that the constitutional writers considered “High Crimes and Misdemeanors”?

In other posts, I have detailed the President’s specific actions which sparked the impeachment inquiry. I will not go into detail about those actions again. (You can read about them in the post at the hyperlink at the beginning of the post.) Rather, I will list the actions below which are either proven as fact or that non-partisan evidence suggests are fact. Please read the article in the hyperlink to see the evidence confirming or describing the President’s actions:

One: President Trump asked Ukraine to open an investigation into Joe Biden’s actions in Ukraine, which the President suggested were corrupt.

Two: At the time Trump asked Ukraine to do this, Joe Biden was Trump’s leading political rival for the 2020 presidential election.

Three: The President possessed no concrete evidence of corruption by Joe Biden in Ukraine. Trump’s own appointed Homeland Security Advisor Tom Bossert told him this belief was a part of a debunked conspiracy theory and that Trump should let it go.

Four: The President made aid to Ukraine and a presidential visit contingent on whether or not Ukraine opened an investigation into Joe Biden and announced this investigation.

Five: Since the end of the Cold War, fortifying Ukraine’s strength and stability against Russian aggression has been a part of U.S. foreign policy. Our own, non-partisan, military personnel consider this essential in maintaining peace and a balance of power in Europe, which greatly affects U.S. peace and security. (You can read more about this here.)

What do these actions mean? These actions mean that against the advice of his own appointed Homeland Security Advisor, President Trump tried to make aid to a vulnerable country contingent on opening an investigation into discredited corruption charges. Furthermore, Trump did this even though giving aid to Ukraine was essential in checking Russian aggression (which is essential to U.S. peace and security), and he did this solely in order to weaken the electability of his primary political opponent at the time.

What would the Writers of the Constitution Think about This if They were Alive Today?

If the writers of the Constitution were alive today, it seems highly likely that they would have four main concerns with the President’s actions:

First concern: John Davie (see above) would likely say that the President is “spar[ing] no efforts or means whatever to get himself re-elected”.  (And the further problem is that some of the President’s actions are highly suspect. See next concern.)

Second concern: The writers of the Constitution would likely say that the President  betrayed the public trust. The facts suggest that the President attempted to institute a quid pro quo with Ukraine which could potentially could U.S. peace and security. He did this to benefit himself personally, and he did it against the advice of his own appointed Homeland Security Advisor and against long-standing U.S. foreign policy necessary to U.S. security and peace.

(By the way, concern over this threat to U.S. security was also expressed in recent testimony by Colonel Vindman, Director of European Affairs for the United States National Security Council.)

Third Concern: The writers of the Constitution would have likely said that the President was betraying public trust and acting perfidiously because during the Ukrainian call, he was using the office of president solely to leverage the election in his favor.

There is no doubt that an incumbent president has an advantage in election years, and there is nothing unconstitutional about that. The problem is using presidential resources solely for the purpose of leveraging an election advantage for one’s self. That is what the President appeared to be doing in his Ukraine call. This disrupts the integrity of the election because it can leads to situations in which a candidate wins the election, not because the U.S. people truly think he is the best candidate for the job, but because he can use the enormous resources of the presidential office to skew the election process in his favor.[1]

Fourth Concern: The writers of the Constitution would likely say that the President’s actions open him to inappropriate foreign influence, which is also a betrayal of public trust.

After President Trump’s call with Zelensky, White House officials tried to move the phone call to a secure server because they were concerned about the propriety of the call. (You can read about this here.[2]) They certainly seemed to believe that it would be damaging for the President if the public were to find out about the call. If White House officials knew the call could be damaging to the President, Ukrainian officials also certainly knew this.

Given Ukraine’s dependence on U.S. aid, it is unlikely Ukraine would have used evidence of the call as leverage against the President. However, it is possible that other, more powerful countries could have gotten a hold of the information and used it, especially before an election, to leverage influence against the United States (in the form of pressuring President Trump).

In Conclusion

While the phrase high crimes and misdemeanors is somewhat vague in the Constitution, it is clear from the words and records of the Constitutional writers the kinds of actions they believed met this description. It also seems likely that were they alive today, they would likely think that at least some of President Trump’s recent Ukraine-related actions would warrant this description.

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[1] Some people argue that President Trump was just investigating corruption in. There are three key problems with this argument: 1) The only instance of alleged corruption Trump was pressuring Ukraine to investigate was the alleged corruption of his primary political rival. 2) Despite no concrete evidence of corruption by Biden (Trump’s own security officials confirmed this), Trump pushed for the investigation and tied Ukrainian aid to it. 3) For the sake of argument, let’s say Biden did do corrupt things. Ukraine didn’t do them—Biden did. So, it would be very odd to punish Ukraine by withholding current aid for something a past U.S. vice president did.

[2] Some have argued that they did this because the call contained sensitive information pertaining to national security.  It is clear from the released transcript that this is not the case, and this article also details the Whistleblower’s observations that the behavior of the White House Officials deviated from standard operating procedure.