The Threshold and History of High Crimes and Misdemeanors - by Greer Clem

Yesterday, conservatives in the House introduced a resolution calling for the impeachment of Deputy Attorney General Rod Rosenstein. Those Republican lawmakers leading the charge against him allege that the withholding of documents and witnesses by Rosenstein in the Russia investigation amount to high crimes and misdemeanors. Some Republicans in the House have accused Rosenstein of stalling in response to requests for documents about the 2016 investigation into Hillary Clinton and the ongoing investigation into Russian interference in our election. Impeachment resolution proceedings have apparently been in the works since April, but no official move was made until yesterday when two leaders of the House Freedom Caucus, Mark Meadows and Jim Jordan, filed the resolution a little over an hour after a meeting with Justice Department Officials. Representative Steve Scalise, who has his sights set on Paul Ryan’s speaker seat, said he supports the resolution as a leverage tactic to get Rosenstein to release more information on the Russia investigation. House Oversight and Government Reform Committee Chairman Trey Gowdy expressed that he does not support the resolution. Gowdy has said he believes the Justice Department is working to speed the pace at which subpoenas are responded to and information is given to the House.

Setting aside the politics behind this move for a moment, let’s actually break down whether or not House Republicans have a case for high crimes and misdemeanors. To start, what actually constitute “high crimes and misdemeanors?”

The grounds for impeachment as set forth by the Constitution are “treason, bribery, and other high crimes and misdemeanors.” To be impeached and then removed from office, the House and then the Senate must find that an elected or appointed official is guilty of one of the three. Of all articles of impeachment drawn up by the House, none has charged an official with treason. Only two officials have been charged with bribery; the rest have all been charges of high crimes and misdemeanors. This is simply because it is the broadest category and therefore encompasses a wider range of crimes (and because Trump hadn’t come along yet.) At the Constitutional Convention in 1787, the framers of the Constitution discussed crimes that fell outside bribery and treason. George Mason argued these two charges alone did not cover all the harm a president or appointee might do. Initially proposing the additional charge of “maladministration,” the term was revised to be “high crimes and misdemeanors.”  The Constitution therefore 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.”

In 1787, the term was commonly used and understood by the founders. It was carried over from England where high crimes and misdemeanors were grounds to impeach officials of the crown for things such as misappropriating government funds, not prosecuting cases, threatening a grand jury, and disobeying an order from Parliament. In the Federalist Papers, Alexander Hamilton tailored the definition to fit American needs and described impeachable offenses as “those offences 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.”

By this definition and based on the political arguments thus far made by House Republicans, it seems that they are basing their argument for impeachment on misconduct and dereliction of duty by Rosenstein. In order to actually impeach Rosenstein and remove him as Deputy Attorney General, both the House and Senate would have to find that he had conducted himself improperly, which some Republicans argue he has by withholding information. Withholding information, however, in an ongoing investigation is a different matter. Rosenstein has not withheld any relevant information but is merely passing the information along at the pace dictated by the legal constraints of an open investigation. Steve Scalise himself admits that the resolution for impeachment is a tactic to show Rosenstein that Republicans are displeased with the pacing of the information released. That means that House Republicans are using last resort intricacies of the Constitution for political show, indicating to Trump supporters that they believe the Mueller investigation to indeed be a witch hunt and calling for its end. It’s also a way for Trump to get rid of Rosenstein without having to fire him, using his quid pro quo method of politics to get others to do his dirty work. The attempt is weak, however, as proven above by the Constitutional constraints necessary to actually prove high crimes and misdemeanors. Irony of ironies, Rosenstein is overseeing an investigation into whether Trump and associates actually did commit high crimes and misdemeanors. Trying to sway the attention onto his oversight of the investigation is a childish maneuver showing little to no appreciation for Constitutional law and the history of impeachment in the United States.