High time

Miss Coulter is a lawyer with the Center for Individual Rights. This article is adapted from her new book, High Crimes and Misdemeanors (Regnery).

NOW that Bill "That-Allegation-Is-False" Clinton has admitted that he is a creep and a liar, the nation is anxiously waiting to see if he also has committed any "high crimes and misdemeanors." The day after President Clinton admitted that his finger-wagging, eye-squinting assurance in January ("I did not have sex with that woman -- Monica Lewinsky") was not quite accurate, the presidential flacks who had been shouting "allegedly, allegedly" for seven months are trying a new defense.

On August 18, official Dissembler for the President Lanny Davis announced on Crossfire that "lying is not a high crime and misdemeanor." Even Sen. Orrin Hatch indicated that any impeachment hearings would be limited to "obstruction of justice" and other "serious felonies." Those, he said, "are high crimes."

No, actually, those are "crimes." The "high crimes and misdemeanors" for which the President -- or any civil officer of the United States -- is to be impeached have nothing to do with the criminal law. There is, in fact, no such thing as a "high crime" or "high misdemeanor" in the criminal codes.

For more than six hundred years, "high crimes and misdemeanors" has referred exclusively to conduct requiring impeachment. Though any serious felony will do, impeachment will not result in a prison sentence or beheading. An impeachment conviction in the Senate merely removes a statesman from his office of "honor, trust, or profit" with the United States. The criminal law is for personal punishment; impeachment is for keeping statesmen virtuous.

Some history: The Framers borrowed the phrase from Britain, where it was first used in connection with an impeachment in 1380. There were several instances of its use during the colonial period: in 1666 Viscount John Mordaunt was impeached for the high crime and misdemeanor of making uncivil addresses to a woman; in 1680 Sir William Scroggs, lord chief justice of the King's Bench, was impeached on account of "his frequent and notorious excesses and debaucheries," bringing "the highest scandal on the public justice of the kingdom"; in 1701 Edward, Earl of Oxford, a member of the King's Council, was impeached for procuring an office for someone "known to be a person of ill fame and reputation."

The list goes on. Notably, none of these are crimes -- or even misdemeanors -- under the criminal law. As Supreme Court Justice Joseph Story wrote in his great Commentaries on the Constitution, it is not only "crimes of a strictly legal character" that are impeachable offenses, but also political offenses, growing out of "personal misconduct . . . so various" that they "must be examined upon very broad and comprehensive principles of public policy and duty."

So, a "high misdemeanor" refers not, as it is commonly construed, to a criminal offense just short of a felony, but to simple misbehavior -- bad demeanor, if you will. As the Rodino Report during the Watergate investigation explained, "From the comments of the Framers and their contemporaries, the remarks of delegates to the state ratifying conventions, and the removal-power debate in the First Congress, it is apparent that the scope of impeachment was not viewed narrowly." Instead, impeachment has always been viewed as --among other things -- a guarantee of the moral behavior of public officials.

In the course of prosecuting one of the greatest impeachment trials in Anglo - American history -- that of Warren Hastings -- Edmund Burke said: "Other constitutions are satisfied with making good subjects; [impeachment] is a security for good governors." Burke meant "good" in the moral sense: "it is by this tribunal that statesmen [are tried] not upon the niceties of a narrow jurisprudence but upon the enlarged and solid principles of morality."

It is exactly this understanding of impeachment that underlies the phrase used in Article I of the Constitution. James Madison said the "first aim" of the Constitution was to ensure that men with the "most virtue" would become the nation's rulers. The Constitution's impeachment power was for "keeping them virtuous whilst they continue to hold their public trust." Or as Alexander Hamilton put it, "Men, in public trust, will much oftener act in such a manner as to render them unworthy of being any longer trusted than in such a manner as to make them obnoxious to legal punishment."

To be sure, there were differences in the practical application in Britain and the United States. Impeachments in Great Britain were often used as a weapon in the ongoing and turbulent power struggle between Parliament and the King. Consequently, impeachments tended to fall into ponderous, grand-sounding categories such as "abuse of power" or "encroachment on Parliament's prerogatives." These categories were expanded and reshuffled for use in a constitutional republic. Personal misconduct took on a larger role in impeachments, for example, and policy disputes were not areas of impeachable conduct.