This article is being published online as special supplement to The New York Review’s December 19 issue. What follows is an expanded form of the testimony delivered to the House Judiciary Committee on December 4, 2019.
Mr. Chairman and Members of the Committee: I’m here today at the request of the Committee to describe why the framers of our Constitution included a provision for impeaching the president; what that provision means; and how it applies to the pressing question before you and the American people: whether President Donald J. Trump has committed impeachable offenses under the Constitution.
I will begin by stating my conclusions:
The framers provided for impeachment of the president because they wanted the president, unlike the king, to be controlled by law, and because they feared that a president might abuse the power of his office to gain personal advantage, corrupt the electoral process, and keep himself in office. “High crimes and misdemeanors” are abuses of power and public trust connected to the office of the presidency. On the basis of the testimony presented to the House Intelligence Committee, President Trump has committed impeachable high crimes and misdemeanors by corruptly abusing the office of the presidency. Specifically, President Trump abused his office by corruptly soliciting Ukrainian President Volodymyr Zelensky to investigate his political rivals in order to gain personal advantage, including in the 2020 presidential election.
I. Why the Framers Provided for Impeachment
The Constitutional Convention opened in late May 1787, when the governor of Virginia, Edmund Randolph, introduced what came to be called the Virginia Plan, a blueprint for the new government that had been designed and written in advance by James Madison. The Virginia Plan mentioned “impeachments of … National officers.”1
On June 2, when the convention was talking about the office of the executive, Hugh Williamson of North Carolina proposed that the executive should be “removable on impeachment and conviction of mal-practice or neglect of duty.”2 The convention agreed and put the words in their working draft.
The framers were borrowing the basic idea of impeachment from the constitutional tradition of England. There, for hundreds of years, Parliament had used impeachment to oversee government officials, remove them from office for abuse of power or corruption, and even punish them.
The biggest difference between the English tradition of impeachment and the American constitutional plan was that the king of England could not be impeached. In that sense, the king was above the law, which only applied to him if he consented to follow it. In stark contrast, the president of the United States would be subject to the law like any other citizen.
The idea of impeachment was therefore absolutely central to the republican form of government ordained by the Constitution. Without impeachment, the president would have been an elected monarch. With impeachment, the president was bound to the rule of law. Congress could oversee the president’s conduct, hold him accountable, and remove him from office if he abused his power.
On July 20, 1787, the topic of impeachment came up again at the constitutional convention when Charles Pinckney of South Carolina and Gouverneur Morris, representing Pennsylvania, moved to take out the provision.3
After Pinckney said that the president shouldn’t be impeachable, William Richardson Davie of North Carolina immediately disagreed. If the president could not be impeached, Davie said, “he will spare no efforts or means whatever to get himself re-elected.” Impeachment was therefore “an essential security for the good behaviour of the Executive.” Davie was pointing out that impeachment was necessary to address the situation where a president tried to corrupt elections.4
Morris then suggested that election would be a sufficient check on a president who abused his power. He was met with stiff opposition from George Mason of Virginia, the man who had drafted Virginia’s Declaration of Rights and a fierce republican critic of overweening government power. Mason told the delegates that “No point is of more importance than that the right of impeachment should be continued.” He gave a deeply republican explanation: “Shall any man be above Justice?” he asked. “Above all shall that man be above it, who can commit the most extensive injustice?”5
Like Davie, Mason was especially concerned about the danger that a sitting president posed to the electoral process. He went on to say that presidential electors were in danger of “being corrupted by the Candidates.” This danger, he said, “furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”6
After Benjamin Franklin also spoke in favor of impeachment, something remarkable happened: Morris changed his mind. Morris had been convinced by the argument that elections were not on their own sufficient check on the actions of a president who tried to pervert the course of the electoral process. Morris told the other delegates that he now believed that “corruption & some few other offences to be such as ought to be impeachable.”7
Madison, the lead architect of the Constitution, then spoke. He insisted that it was “indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate.” Standing for reelection “was not a sufficient security.” The president, Madison said, “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.” And if the president lost his capacity or acted corruptly, Madison concluded, that “might be fatal to the Republic.”8
The upshot of this conversation in the Constitutional Convention was that the framers believed that elections were not a sufficient check on the possibility of a president who abused his power by acting in a corrupt way. They were especially worried that a president might use the power of his office to influence the electoral process in his own favor. They concluded that the Constitution must provide for the impeachment of the president to assure that no one would be above the law.
Now that the framers had settled on the necessity of impeachment, what remained was for them to decide exactly what language to use to define impeachable offenses. On September 4, a committee replaced the words “malpractice or neglect of duty” with the words “treason or bribery.”9
On September 8, Mason objected forcefully that the proposed language was not broad enough. The word treason had been narrowly defined by the Constitution, he pointed out, and so would “not reach many great and dangerous offences.” He drew the other delegates’ attention to the prominent impeachment trial that was taking place at the time in England—that of Warren Hastings, the former governor general of Bengal. Hastings was “not guilty of Treason,” Mason pointed out, but of other alleged misdeeds. Mason added that “attempts to subvert the Constitution may not be Treason as above defined.” Mason proposed to add the words “or maladministration” after “treason or bribery.”
The term “maladministration” almost certainly came from the great English legal writer William Blackstone, who described a “high misdemeanor” defined as “mal-administration of such high officers, as are in public trust and employment.” Officers charged with this conduct, Blackstone had written, are “usually punished by the method of parliamentary impeachment.” Mason was trying to incorporate the full English impeachment tradition into the constitutional language.
Madison—who, unlike Mason, was not a lawyer, and apparently did not know the Blackstone reference—replied to Mason that the word “maladministration” was “vague” and amounted to “tenure during pleasure of the Senate.” In response, Mason withdrew the word “maladministration” and substituted “other high crimes & misdemesnors [sic] against the State.”10 The words “against the state” were then changed almost immediately to “against the United States.” Later, the convention’s committee on style settled on the final language, which says that
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.11
II. High Crimes and Misdemeanors—and Bribery
The words “high crimes and misdemeanors” had a well-understood meaning from centuries of English impeachment trials. They were in common use in impeachments. Indeed, those words had just been used by the House of Commons in impeaching Hastings—the impeachment to which Mason referred minutes before he proposed the words “high crimes and misdemeanors.”12
The phrase “high crimes and misdemeanors” was an expression with a concrete meaning. The word “high” in the phrase modified both words that followed: “high crimes” and “high misdemeanors.” The word “high” meant “connected to high political office.” As Alexander Hamilton explained in Federalist No. 65, the phrase “high crimes and misdemeanors” referred to
those offenses 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.13
In Hamilton’s explanation, one can hear echoes of Mason’s original suggestion that high crimes and misdemeanors were acts committed “against the state.”
Thus, the essential definition of high crimes and misdemeanors is the abuse of office. The framers considered the office of the presidency to be a public trust. Abuse of the office of the presidency is the very essence of a high crime and misdemeanor.
To be clear, when the framers chose these words “high crimes and misdemeanors,” there was no longer any meaningful difference between “high crimes” and “high misdemeanors.” The distinction in criminal law between felonies and misdemeanors is not implicated in the framers’ phrase.14
The classic form of abuse of office is using the office of the presidency for personal advantage or gain, not for the public interest. This form of abuse of office was what the framers had in mind when they specifically named bribery as a high crime and misdemeanor.
The two most recent prominent English impeachment trials known to the framers both involved bribery. One was the impeachment trial of Hastings, who was impeached for, among other things, “corruption, peculation, and extortion.”15 The major allegation associated with this impeachment article was that he had solicited and received bribes or gifts from people in Bengal while serving as governor general.
The other was the impeachment of Lord Macclesfield, the Lord Treasurer of England, in 1725, for taking bribes to sell offices. There, too, bribery was the central issue. The articles of impeachment charged Macclesfield with taking bribes to sell offices under color of office—that is, while he occupied the official role of Treasurer.16
The word “bribery” as used in the Constitution had a well-understood meaning from both English statutes and common law. The oldest English bribery statute goes back to 1384. It applied to judges, and stated that no judge could accept any “robe, fee, pension, gift, nor reward of any but the King, except reward of meat or drink, which shall be of no great value” from someone with a case before the judge.
The language was closely parallel to the first English extortion statute, dated 1275, which applied to sheriffs or other officers of the king and similarly prohibited those officers from taking “any reward to do his office” except their salaries paid by the king.17 No force was required. An officer of the king acting under color of his office—that is, in his official capacity—was guilty of extortion for taking anything of value to do his job other than his salary.
The principle embodied in these statutes was that officers of the Crown were prohibited from soliciting or accepting anything of value—even expensive meals or drinks—from any person who might potentially be affected by their power while in office.
Later definitions under the common law, also known to the framers, continued to follow this same principle. Blackstone defined bribery as occuring “when a judge, or other person concerned in the administration of justice, takes any undue reward to influence his behavior in his office.”18
Bribery and extortion under color of office were understood as effectively the same crime, depending on who committed it. As the great English jurist Lord Coke put it in 1644, “the difference between bribery and extortion is, that bribery is only committed by him, that hath a judiciall place, and extortion may be committed both by him that hath a judiciall place, or by him that hath a ministeriall office.”19 By the time the framers used the term “bribery,” it colloquially applied not only to judges, but to all government officials.
Offering a bribe that was not accepted was similarly treated as the crime of bribery.20 The offense of bribery was complete in the attempt.21 What was more, the common law definition of bribery did not include any requirement of an exchange or quid pro quo between the officer and the person from whom he might solicit or receive a bribe. As long as the judge or minister was acting under color of his office—that is, in his official capacity—receiving a bribe was a crime. That is because the principle was that the person in office may not solicit or receive something of value from someone who could be affected by the exercise of his powers of office. No exchange was required for a crime to occur.
Beyond the classic case of abuse of office for personal gain, the framers understood that abuse of office could take a variety of other forms. Other forms of abuse of office included the use of the office of the presidency to corrupt the electoral process or to compromise the national interest or national security.
It is important to note that the traditional meaning of high crimes and misdemeanors was not restricted to acts defined as ordinary crimes by statute. The language was deliberately meant to be flexible enough to incorporate a range of abuses of power that endanger the democratic process, because the framers understood that they could not perfectly anticipate every possible abuse of power by a president.
As Supreme Court Justice Joseph Story wrote in his influential Commentaries on the Constitution:
there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book. And, indeed, political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.22
Put simply, it is incorrect as a matter of constitutional law to assert that “high crimes and misdemeanors” must be crimes as defined in the US Code.23 In England, impeachments did not always rest on violations of statutory law. And in the United States, a number of impeachments have involved wrongdoing not defined as criminal by statute. For example, in 1936, Judge Halstead Ritter was impeached by the House. He was acquitted by the Senate on charges of income tax evasion, a criminal act; but convicted on the charge of bringing his court into disrepute and harming confidence in the administration of justice.24
III. How High Crimes and Misdemeanors Applies to President Trump’s Alleged Conduct
The Constitution specifies that the House of Representatives shall have “the sole Power of Impeachment.” It is therefore the constitutional responsibility of the members of this House to determine whether they believe the sworn testimony that has been offered in the course of this impeachment inquiry and to decide whether to impeach President Trump. My role is not to address the determination of credibility that is properly yours. Rather, my job is to describe how the constitutional meaning of impeachable offenses applies to the facts described by the testimony.
President Trump’s conduct described in the testimony clearly and definitely constitutes impeachable high crimes and misdemeanors under the Constitution. According to the testimony, President Trump solicited the president of Ukraine to investigate his political rivals in order to gain personal political advantage, including in the 2020 presidential election. According to testimony (as well as the publicly available summary of the July 25, 2019, telephone call between the two presidents), President Trump used his presidential office to seek what he called this “favor” from President Zelensky.
This act on its own qualifies as an impeachable high crime and misdemeanor.
The solicitation constituted an abuse of the office of the presidency because President Trump was using his office to seek a personal electoral advantage over his political rival, former vice president Joe Biden. The solicitation was made in the course of the president’s official duties. According to the testimony presented to the House, the solicitation sought to gain an advantage that was personal to the president, not in the interests of the office of the presidency or of United States. This constitutes a corrupt abuse of the power of the presidency. It embodies the framers’ central worry that a sitting president would “spare no efforts or means whatever to get himself re-elected.”
I wish to be clear that soliciting a foreign government to investigate an electoral rival for personal gain on its own constitutes an impeachable high crime and misdemeanor under the Constitution.
That said, the House heard further testimony that President Trump also abused his office by seeking to create incentives for Ukraine to investigate Biden. Specifically, the House heard testimony that President Trump placed a hold on essential US aid to Ukraine, and conditioned its release on announcement of the Biden and CrowdStrike investigations; and conditioned a White House visit sought by President Zelensky on announcement of the investigations.
Both of these acts constitute high crimes and misdemeanors impeachable under the Constitution. By freezing aid to Ukraine and by dangling the promise of a White House visit, the president was corruptly using the powers of the presidency for personal political gain. Here, too, the president’s conduct described by the testimony embodies the framers’ concern that a sitting president would corruptly abuse the powers of office to distort the outcome of a presidential election in his favor.
Because in my judgment there has been some public confusion about what facts must be proved to demonstrate a high crime and misdemeanor, let me be very clear about what the Constitution does not require.
Nothing in the constitutional definition of impeachable acts requires any sort of exchange between President Trump and President Zelensky. To the contrary: the act of soliciting a foreign government to investigate a political rival for personal gain would constitute a complete high crime and misdemeanor even if nothing were exchanged and even if the solicitation were unsuccessful. Neither the words “quid pro quo” nor the idea of exchange appear anywhere in the constitutional definition of high crimes and misdemeanors.
If this House believes testimony that President Trump conditioned aid and a White House visit on Ukraine’s investigation of Biden, that provides further reason for impeachment, because it specifies two further corrupt acts designed to induce President Zelensky to provide personal political advantage to President Trump.
Furthermore, nothing in the Constitution requires that President Trump’s efforts described in testimony to solicit the assistance of President Zelensky to have succeeded in order to qualify as impeachable conduct.
Under the Constitution, the corrupt abuse of office does not need to be successful or efficacious to be impeachable. The abuse of office is complete when the president corruptly uses the power of his office to seek personal gain or advantage.
It did not matter, for example, whether President Nixon’s cover-up of his administration’s role in the Watergate burglary actually succeeded in preventing the facts from becoming public. Indeed, the Watergate cover-up was ultimately unsuccessful. Yet it was constitutionally appropriate for the House Judiciary Committee to draft an article of impeachment charging President Nixon with obstruction of justice for the cover-up.
A final note on the abuse of power for personal gain, which may be considered bribery under the Constitution. To impeach President Trump for abuse of power in the form of bribery under the Constitution, it is not necessary to demonstrate that there was any exchange between the two presidents or that the solicitation of the bribe was successful. The House has the constitutional power to interpret the constitutional term “bribery.” If the House determines that President Trump corruptly abused his office to seek something of personal value from President Zelensky, that would constitute bribery under the meaning of the Constitution, even if there was no explicit exchange between the two, and even if President Zelensky did not deliver the thing that was solicited.
The reason for this conclusion is that the framers drew the meaning of bribery from old English statutes and from the common law. Those sources understood bribery or its solicitation as something of value given to an official by someone who could be affected by the official’s exercise of office. They did not require an exchange. Nor did the sources require that a solicited bribe actually be given. In bribery, an attempt was deemed a complete crime.25
President Zelensky was someone who could be affected by president Trump’s official conduct. If the House determines that President Trump solicited him to provide personal political advantage to him, it could conclude that this constituted an impeachable act of soliciting bribery under the Constitution.26
The Records of the Federal Convention of 1787, Vol. 1, pp. 21-22, edited by Max Farrand, 1966. ↩
Farrand, The Records, Vol. 1, p. 88. ↩
Farrand, The Records, Vol. 2, p. 64. ↩
Farrand, The Records, Vol. 2, p. 64. ↩
Farrand, The Records, Vol. 2, p. 65. ↩
Farrand, The Records, Vol. 2, p. 65. ↩
Farrand, The Records, Vol. 2, p. 65, and see p. 68. ↩
Farrand, The Records, Vol. 2, pp. 65-66. ↩
Farrand, The Records, Vol. 2, p. 550; and see William Blackstone, Commentaries on the Laws of England, Vol. 4, p. 121. ↩
Farrand, The Records, Vol. 2, p. 551. ↩
Constitution of the United States, Article II, Section 4. ↩
As for the word “treason,” the framers wanted to differentiate themselves from English tradition, so they defined that term specifically in the Constitution. ↩
The Federalist Papers, p. 394, edited by Clinton Rossiter (Signet, 1961). ↩
It is possible that originally, “high crimes” were those the House of Lords could punish by death, whereas “high misdemeanors” were those punishable by removal from office and fines. If so, however, the distinction had eroded by the time the framers used the term; and in any case, impeachment under the Constitution is limited to removal from office, unlike traditional impeachment in England. ↩
House of Commons, Article of Impeachment, Article VI, House of Lords Sessional Papers, 1794-1795, pp. 34-36 (Torrington edition, 1974). ↩
The Tryal of Thomas Earl of Macclesfield, In the House of Peers, For High Crimes and Misdemeanors; Upon an Impeachment by the Knights Citizens and Burgesses in Parliament Assembled, In the Name of Themselves and of All the Commons of Great-Britain. Begun the 6th Day of May 1725, And from Thence Continued by Several Adjournments Until the 27th Day of the Same Month. (Published by Order of the House of Peers. London: Printed by Sam. Buckley in Amen-Corner, 1725). ↩
For these statutes, see James Lindgren, “The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act,” UCLA Law Review, Vol. 35, pp. 815, 844, 874-5 (1988). ↩
Blackstone, Commentaries, Vo. 4, p. 139. Extortion was hardly different: as Blackstone put it, “extortion is an abuse of public justice, which consists in any officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due to him” (p. 141). ↩
Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes (London, 1644), p. 147; see also Lindgren, “The Elusive Distinction,” p. 865. ↩
Coke, p. 147; Blackstone, Vol. 4, p. 139. ↩
See R. v. Vaughan, 98 Eng. Rep. 308, 311 (1769) (Mansfield): “And in many cases, especially in bribery at elections to Parliament, the attempt is a crime: it is complete on his side who offers it. If a party offers a bribe to a Judge, meaning to corrupt him in a case depending before him; and the Judge taketh it not; yet this is an offence punishable by law, in the party that offers it.” ↩
Joseph Story, Commentaries on the Constitution, Vol. 1, § 797, edited by Thomas Cooley (1873). ↩
A law professor named Theodore Dwight did make this claim in 1867. Theodore Dwight, “Trial by Impeachment,” The American Law Register, Vol. 6, pp. 257, 264 (1867); see Raoul Berger, Impeachment: the Constitutional Problems (Harvard University Press, 1973), p. 56 and note 14. ↩
Berger, Impeachment, p. 56. ↩
See R. v. Vaughan, 98 Eng. Rep. at 311 (1769). ↩
For example, in the impeachment trial of Lord Macclesfield, article 16 of the articles of impeachment alleged that Macclesfield had corruptly “endeavored” to pressure masters in Chancery to pay a suitor, one Mrs. Chitty, £1000 to cover up embezzlement by another master who had since absconded. The masters refused to make the payments despite Macclesfield’s pressure. Nevertheless the articles of impeachment charged him with the corrupt unsuccessful attempt. See The Tryal of Thomas Earl of Macclesfield. ↩