Here’s how scholars interpret ‘treason, bribery, or other high crimes and misdemeanours’

As lawmakers charge President Trump with “incitement of insurrection,” here's a look at what qualifies as an impeachable offence.

Published 12 Jan 2021, 13:17 GMT

On Monday, Democrats in the House of Representatives introduced a single article of impeachment against President Donald Trump, accusing him of inciting an insurrection against the U.S. government. House Speaker Nancy Pelosi has threatened to start the impeachment process if Vice President Mike Pence does not invoke the 25th Amendment to remove Trump from office.

Trump was previously impeached by the House on December 18, 2019, though he was not convicted by the Senate. Under the Constitution, a majority of House members are required to impeach a federal official, and two-thirds of senators must agree to convict and remove him or her from office. If Trump were impeached again, he would be the first president ever to be impeached twice. Only 20 federal officials have been impeached in U.S. history. 

During the 1878 Constitutional Convention, the framers debated how to define an impeachable offense. Eventually they settled on acts of "treason, bribery, or other high crimes and misdemeanors," but scholars argue that the framers did not intend impeachment to be restricted to criminal behavior.

Photograph by Hulton Archive/Getty Images

The Constitution provides that the president, vice president, and other civil officers of the United States can be removed from office for “Treason, Bribery, or other high Crimes and Misdemeanours.” But what exactly do these terms enshrined in Article II, section 4 of Constitution mean—and do Trump’s words and actions qualify? National Geographic spoke with constitutional law scholars to find out.

How the framers approached impeachment

At the 1787 Constitutional Convention, the framers of the Constitution struggled with how narrowly to define impeachable offences. Originally, they suggested that an official could be impeached due to “malpractice or neglect of duty”—a broad standard that was eventually narrowed to “treason and bribery.” But a Virginia delegate to the Constitutional Convention, George Mason, argued this was too restrictive, and ultimately the framers settled on adding “or other high crimes and misdemeanours” to the text.

As the Constitution’s wording suggests, treason and bribery are two examples of a high crime or misdemeanour. The framers cited these particular offences because they “are constitutional wrongs that subvert the structure of government, or undermine the integrity of office and even the Constitution itself,” Gonzaga University School of Law professors Frank O. Bowman and Stephen L. Sepinuck explained in a 1998 House subcommittee hearing during the impeachment of President Bill Clinton.

While treason and bribery are specific crimes, they are also other examples of egregious presidential misconduct. That’s why the phrase “high crimes and misdemeanours” is more of a term of art, says Michigan State University College of Law professor Brian Kalt. At the time of the Founders, he explains, the term “misdemeanours” carried a more colloquial connotation to mean “misconduct,” which is distinct from the term’s use in criminal codes, which define “misdemeanours” as less serious crimes.

A pass permitting viewing access to President Andrew Johnson's impeachment proceedings in 1868.

Photograph by Marianne Barcellona, The LIFE Images Collection/Getty Images

Kalt and other scholars argue that the framers did not intend impeachment to be restricted to criminal behaviour. “The Constitution makes a big point of distinguishing the impeachment process from the criminal process,” Kalt says. In the Federalist Papers, Alexander Hamilton described impeachable offences as those “which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Kalt points out that the consequences for impeachment—removal and disqualification from office—are political, too.

Treason

Treason is such a serious charge that the framers took pains to define it in the Constitution. According to Article 3, Section 3, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Unlike sedition, which involves advocating for insurrection, treason requires a person to have actually taken action against the country.

The burden of proof for treason is high and its punishment is severe. The same passage explains that no one can be convicted of treason “unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.” If convicted, treason is punishable by death—or the imprisonment of no less than five years, plus a fine of no less than $10,000 (£7,500) and disqualification from holding office.

As a result, treason charges are rare. According to a 2016 Congressional Research Service report, there have been fewer than 50 federal treason cases in U.S. history—and only one since World War II. And only one official—Tennessee District Court Judge West H. Humphreys who defected to the Confederacy during the Civil War—has been removed from office for waging war against the U.S. government.

Michael Gerhardt, a University of North Carolina School of Law professor and leading expert on impeachment, says it’s unlikely Trump would be charged with treason for inciting the storming of the Capitol—in part because it is so difficult to prove, but also because it doesn’t clearly meet the definition. “Yes, there was violence,” Gerhardt says. “I’m not sure one could call it a war. That’s why I think treason might not be the word to use.”

Kalt agrees. “I think [the charges] sound more like sedition than treason,” he says, adding that sedition would be an easier charge to pursue as a high crime or misdemeanour. “Sedition covers it well enough that there’s no reason to take on the burden of proving that it’s treason.”

Bribery

Bribery is not explicitly defined in the Constitution and has various legal interpretations. In the federal criminal code, bribery is defined as offering or receiving anything of value with the intent to influence a public official. But some scholars have argued the framers had a broader understanding of bribery as an official taking or offering “an undue reward to influence his behaviour in his office.”

Several federal officials in U.S. history have been impeached on charges of bribery. In 1876, Secretary of War William Belknap was impeached, but not convicted by the Senate, of accepting payments in exchange for making official appointments. In 1989, Florida judge Alcee Hastings was removed from office for conspiring to solicit a bribe. (The Senate did not disqualify him from holding future office, however, and he now serves as a U.S. congressman.) And in 2020, Louisiana judge G. Thomas Porteous, Jr., was removed and disqualified from holding future office for accepting bribes.

House Democrats also cited bribery as one of the charges against Trump in his 2019 impeachment that passed in the House on a vote of 230 to 197. Pelosi argued that Trump’s request for Ukrainian President Volodymyr Zelenskiy to announce an investigation into Democrats to influence the 2020 election while withholding $391 million (£288 million) in military assistance was tantamount to bribery. In his December 2019 testimony before the House Judiciary Committee, Gerhardt agreed with that statement.

Now, however, Gerhardt says there’s no allegation he knows of that Trump’s latest actions have not involved bribery—nor is he likely to be accused of it in this impeachment process. “For whatever the president has done wrong—and he’s done a lot in this last situation—I don’t think it’s bribery,” he says.

High crimes and misdemeanors

Since impeachment is a political process, impeachment charges have historically tended to focus on the ways officials have abused their offices rather than any specific crimes they may have committed in the process. The “high crimes and misdemeanours” standard is aimed at gross or malignant abuses of power—though the standard is open to Congress’ interpretation and has been the subject of much debate over the centuries.

Amid a mounting impeachment investigation, President Richard Nixon resigned from office before he could be formally indicted by the House Judiciary Committee.

Photograph by Blank Archives, Getty Images

Amid a mounting impeachment investigation, President Richard Nixon resigned from office before he could be formally indicted by the House Judiciary Committee.

Photograph by Julian Wasser, The LIFE Images Collection/Getty Images

The framers did not define “high crimes and misdemeanours,” but they did offer a few examples. In 1788, James Madison posited that abuses of a president’s pardon power would make him subject to impeachment, and a year later, argued such abuses could include “the wanton removal of meritorious officers.” Virginia Governor Edmund Randolph also suggested that impeachment was also appropriate punishment for a violation of the Foreign Emoluments Clause, which forbids U.S. officials from accepting gifts from foreign governments.

The Senate’s first conviction in an impeachment trial came in 1804, when federal judge John Pickering was removed from office for intoxication on the bench and unlawful handling of property claims. (Pickering had mental health issues, which were not taken into account at the time.) In the years since, three U.S. presidents have been impeached by the House—but not convicted by the Senate—on charges that include abuse of power, obstruction of justice, and obstruction of Congress: Andrew Johnson in 1868, Bill Clinton in 1998, and Donald Trump on December 18, 2019.

Now, House Democrats have introduced a resolution that charges Trump for “incitement to insurrection.” The resolution refers to the president’s efforts “to subvert and obstruct the certification of the results of the 2020 election,” citing as evidence a January 2 call to Georgia’s Republican Secretary of State, Brad Raffensperger, urging him to “find” more Republican votes, and Trump’s statements at a January 6 rally for his loyalists near the White House that “encouraged—and foreseeably resulted in—imminent lawless action at the Capitol.”

Gerhardt says a case could be made for incitement of insurrection, but that the more compelling argument for impeachment relates to Trump’s attempts to undermine the 2020 election. “You have a president of the United States doing something completely incompatible with his office—plainly not following his oath to uphold the Constitution—and he’s done that in the form of systematically trying to overthrow an election,” Gerhardt says. “That, to me, is objectively bad and harmful to the Republic, and impeachable.”

Yale Law School professor Akhil Reed Amar isn’t sure Trump’s actions should be described as “incitement to insurrection,” adding that it would make him nervous “if every leader is held responsible for the worst things that some followers did without instruction.” But Amar agrees with Gerhardt that Trump’s attempts to subvert the election could be impeachable.

Amar adds that in his opinion, the question “isn’t whether I think something is impeachable. The question is whether the people who voted for the president think so.” That includes members of Congress.

So will Trump be impeached—again?

In 1970, Gerald Ford famously declared, “An impeachable offence is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Ford—then the Republican House minority leader—was frustrated by his failed attempt to impeach liberal Supreme Court Justice William O. Douglas on partisan grounds.

In a two-party system, as Amar points out, you need buy-in across the political spectrum to impeach, and he believes lawmakers should be allowed to take into consideration the wishes of their constituents.

A person walks by a display of newspaper front pages from around the U.S. the day after the House impeached President Donald Trump in December 2019. Trump may face impeachment once again as lawmakers have recently introduced charges against him for "incitement of insurrection."

Photograph by Caroline Brehman, CQ Roll Call/AP

Kalt points out that requiring two-thirds of senators to convict dramatically raises the bar for what truly counts as “high crimes or misdemeanours.”

“In the abstract, inciting insurrection, if you prove it to the satisfaction of two-thirds of the Senate, absolutely is an impeachable offence,” agreed Kalt. “But whether it’ll work in this case, I can’t say.”

Even if Trump escapes conviction, it may not be the end of his troubles. Impeachment is a strictly political process—and officials who are acquitted in an impeachment trial in Congress can still be prosecuted in criminal courts.

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