—Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
As the attention of many observers of law and politics is fixed on the impeachment process now underway in the United States of America, it’s an interesting time to think about the choices that constitution drafters make regarding the grounds for removing the head of state. Part of the case in the US Senate has so far turned on whether or not the conduct of President Donald J. Trump meets the standards for impeachment and removal as described in Article II, § 4. As readers no doubt know, the kinds of conduct that are described there are “Treason, Bribery, or other high Crimes and Misdemeanors.”
While treason and bribery are reasonably clear, legal scholars have spilled considerable quantities of ink in discussing precisely what might or might not be covered by “high Crimes and Misdemeanors” (see a nice summary at the Lawfare blog). I have nothing particularly original to contribute to the debate over whether or not a crime as otherwise defined must have been committed for this part of the clause governing impeachment to apply. However, I would like to draw our attention as scholars of comparative constitutional law to the level of influence that this particular formulation has had in the drafting of other constitutions, and to think for a moment about how widespread the term may or may not be. The history of the US drafting is itself interesting, as the drafters considered various other ways in which potential grounds for impeachment might be described (see esp. Berger).
The influence on the US Constitution as a general model for other states is quite well known (see especially Billias 1990, 2011). The US Constitution has also been a model for specific textual choices in a surprising number of other states. I have identified 49 national constitutions that copy at least one phrase from the US Constitution. The countries that copied more than one phrase are not unexpected, with former US colonies or dependencies particularly well represented (e.g. Philippines, Micronesia, Palau, Marshall Islands). The most popular phrase to copy is the guarantee of due process in the 14th Amendment. However, the impeachment process is not entirely neglected. Four constitutions copy part of the description of the impeachment process in Article I, § 3 (Argentina (Article 60), Republic of Korea (Article 65, cl. 4), Liberia (Article 43), and the Philippines (Article XI, § 3, cl. 7)).
However, despite the widespread influence of the US Constitution (including the impeachment procedure), no other state chose to include “high Crimes and Misdemeanors” as a potential cause for impeachment and removal from office. There is relatively little scholarship on this subject to which we could turn for further explanation of this surprising fact. However, a recent article by Ginsburg, Huq, and Landau provides the first comprehensive accounting of the comparative constitutional law of impeachment. The main thrust of the article is the argument that the main function of impeachment in most political systems is to resolve a political crisis, not to punish criminal conduct. However, the part of the article that is most interesting for our present purposes is the finding that only three constitutions even copy the “high Crimes” part of the US Constitution’s treatment of impeachment.
The Constitution of the Marshall Islands takes the language of the US Constitution, and clarifies it by stating that a judge may be removed from office for “treason, bribery, or other high crimes or abuses inconsistent with the authority of his office” (Article VI, § 1, cl. 8). Also concerning judges, the Constitution of Palau provides for impeachment in cases where the individual has committed “treason, bribery, other high crimes, or improper practices” (Article X, § 10). Addressing a similar range of officials to that covered by the US impeachment procedure, the Philippine Constitution provides for removal in cases of “treason, bribery, graft and corruption, other high crimes, or betrayal of public trust” (Article XI, § 2). While each of these linguistic formulations seem more capacious than their US source material, ambiguities remain about what specific actions might be construed to have (for example) betrayed the public trust.
The US Constitution may have had more influence in the area of impeachment in the past – particularly in Latin America. For example, the Constitution of Argentina as originally ratified in 1853 was closer to the US text, and provided for impeachment of members of the executive and judiciary for “malfeasance in the exercise of their functions, or for crimes and misdemeanors whether official or common” (Art. 45). The amended text now in force bears less resemblance to the US Constitution (moving in the direction suggested by Ginsburg et al.), providing for impeachment in cases where such officials are “allegedly responsible for poor performance or for committing an offense in carrying out their duties, or for common crimes” (Art. 53). Similarly, the Mexican Constitution of 1857 provided for impeachment of members of the legislature, executive, and judiciary when they had committed “crimes, misdemeanors, or omissions of which they may be guilty in the performance of their official duties” (Art. 103). The current Mexican Constitution bears only a faint resemblance to the US text, allowing for impeachment “for treason or serious common crimes” (Art. 108). While presidentialism and impeachment procedures in Latin America have been influenced by the US Constitution, wording resembling “high Crimes and Misdemeanors” has been replaced by more specific language in the constitutions of the region.
So much for direct influence of the US Constitution in contemporary law, but what about the British source material? As is well known, the language of “high Crimes and Misdemeanors” entered the US Constitution through the founders’ observations (from afar) of the impeachment of Warren Hastings by the House of Commons beginning in 1786. The Articles of Charge against Hastings ran to a remarkable 322 pages, and concluded with the summary statements “That in the said deceits, prevarications, contradictions, malicious accusations, fraudulent concealments, and compelled discoveries… the said Warren Hastings is guilty of an high offence and misdemeanor.” Similar language was used in many other impeachments in the United Kingdom, and had become a term of art that sometimes admitted variations, such as “extortion and other Misdemeanors,” or “high crimes and offences”.
Given the common use of this language (at least at some point) in the British legal tradition, it might be reasonable to expect then that the Commonwealth constitutions might draw on the same source material as they developed their own regulations on the removal of the head of government (though less often including the head of state). However, as the editors of the Anglo-American Law Review noted in 1974, the beginning of impeachment in the USA was also the end of impeachment in the United Kingdom. “High Crimes and Misdemeanors” was in some sense outdated in the United Kingdom even as it was first employed in the United States in the impeachment of William Blount in 1797. Instead, impeachment was essentially replaced by the development of cabinet government in the United Kingdom in the 18th century. One scholar has suggested that if the US drafters had been able to observe how the increasingly personal impeachment of Hastings played out between 1788 and 1795, they would not have included impeachment as we know it in the Constitution at all.
Thus, while we might have expected that the precedents of British law that created impeachment in the US Constitution would also lead to similar procedures in the Commonwealth, we find instead quite different procedures for holding political leaders to account for their perceived malfeasance or indeed criminal conduct. As the United Kingdom’s constitution developed towards cabinet government, impeachment was replaced by ministerial responsibility. Explaining the disappearance of impeachment from the United Kingdom, one scholar described impeachments as being “too encrusted with legal traditions to allow their evolution into a political weapon,” but also as a driver of the development of cabinet government itself.
Commonwealth constitutions often have relatively little to say about the mechanisms through which the alternatives to impeachment may be employed. Canada, for example, avoids the issue entirely. Jamaica’s constitution permits the House of Representatives to explicitly vote to revoke the appointment of the Prime Minister (§ 71). Dominica’s constitution deals with these issues at some length, and explicitly notes the importance of a “resolution of no confidence in the Government” in removing a prime minister from office. Perhaps more relevantly, Dominica’s constitution also created a procedure through which the president may be removed. In a longer list of potential grounds for removal, the constitution notes behaviour that would “bring his office into hatred, ridicule, or contempt” or “that endangers the security of Dominica” (§ 24). If two-thirds of the members of the House believe that the president should be removed, a tribunal of three judges of the Supreme Court completes an investigation, and reports its findings to the House. A second vote is then taken in the House, and a two-thirds majority may remove the president from office. Very similar language is found in the constitution of Trinidad and Tobago (§ 36).
The impeachment process that we see in the United States today is in some ways, then, the result of the strange influence of a particular incident in the political history of the United Kingdom. It is notable that the impeachment procedure was soon replaced by other developments in the United Kingdom, and had no influence on the development of the constitutions of the British Commonwealth. Given the long shadow cast by the impeachment of Warren Hastings, one might wonder, as well, what distant impacts the impeachment of Donald J. Trump might have on constitutional developments both near and far.
Suggested citation: Alexander Hudson, High Crimes and Misdemeanors: The Surprising Rarity of the US Impeachment Standard, Int’l J. Const. L. Blog, Jan. 29, 2020, at: http://www.iconnectblog.com/2020/01/high-crimes-and-misdemeanors-the-surprising-rarity-of-the-us-impeachment-standard/
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