Tenth Amendment Center: Impeachment: What Did the Founders Mean By “High Misdemeanors?”
The Constitution states “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.”
It is clear officers can be impeached and removed for major crimes, but what is a “high . . . Misdemeanor?”
Commentators have been all over the lot on this one. Some claim it’s just another word for a crime. Others claim it’s anything Congress wants it to mean. Most have been in the middle, but for the most part the standards they have suggested have been so fuzzy as to be almost useless.
Several years ago, while researching the subject for my book, The Original Constitution: What It Actually Said and Meant, I reviewed all the historical evidence I could. I became convinced it that “high misdemeanors” are what we now call “breaches of fiduciary duty.” (The founders had a variety of names for that concept.) Although I reported some of the evidence in my book, I’ve now published it in more complete form for the legal journal Federalist Society Review.
Fiduciary duties are a set of well-established obligations a person has when managing the interests of others. Examples of fiduciaries are trustees, bankers, attorneys and accountants, guardians for children or incompetent people, agents, and those who administer the estates of deceased people. Their fiduciary obligations include honesty (“good faith”), loyalty toward those they work for, following instructions, reasonable care, treating those they work for impartially, and presenting accounts of what they have done. A fiduciary violating his duties may be liable for any losses incurred and, in many cases, for disgorging any personal benefits he received from the breach. A fiduciary is not, however, liable for mistakes or misinterpretations made with a reasonable basis and in good faith.
The Founders were committed to furthering fiduciary government to the extent reasonable and practical, so they included “high misdemeanors” as a way to remove officers who, while perhaps not guilty of crimes, have been dishonest, disloyal, overly-biased, or negligent. But an officer is not impeachable merely for mistakes in policy or reasonable disagreements over interpretation of the law.