Justice Joseph Story on “High Crimes and Misdemeanors”—The Antithesis to Dershowitz

Harvard Professor Emeritus Alan Dershowitz is expected to argue on Monday that abuse of power is not one of the “high crimes and misdemeanors” set forth in the U.S. Constitution as grounds for removal from the office of the Presidency. He said on Fox News Sunday this weekend, “I’ve been immersing myself in dusty old books, and I’ve concluded that no, it has to be a crime, it doesn’t have to be a technical crime….That’s what scholars do, that’s what academics do. We do more research.”  The vast majority of constitutional scholars disagree with his research.

I pulled a dusty law book off my bookshelf yesterday: On the Constitution of the United States, written by Joseph Story, a long-serving Associate Justice of the Supreme Court in the early 19th Century and also the Dane Professor of Law at Harvard University.  The treatise was published in 1840.  Story lived during an era when many of the framers were alive and present in the public dialogue of the nation.  He wrote the historic opinion in The Amistad case.

Story’s eloquent explanation of the impeachment clause of the Constitution should resonate with the Senate trial.  If Dershowitz relies on Story, he will have to omit some of Story’s most essential passages. That’s what the Trial Memorandum on behalf of President Trump did in citing Story several times over.

The House of Representatives and the Senate are unique fora of American jurisprudence under the impeachment clause of the Constitution, and precedents have been generated over abuse of power charges against other presidents.  It is in those bodies where the common law of abuse of power leading to impeachment (or, in the case of Richard Nixon, imminent impeachment) has generated precedents demonstrating prior practice. That was a vital lesson in Story’s explanation of impeachable offenses.

We might all keep Story’s words in mind as Dershowitz expounds his own views in the Senate chamber:

Extracts from On the Constitution of the United States, by Joseph Story, 1840:

“The great objects to be attained in the selection of a tribunal for the trial of impeachments, are impartiality, integrity, intelligence, and independence.  If either of these qualities is wanting, the trial is essentially defective.  To insure impartiality, the body must be, in some degree, removed from popular power and passions, from the influence of sectional prejudices, and from the still more dangerous influence of party spirit.  To secure integrity, there must be a lofty sense of duty, and a deep responsibility to God, as well as to future ages.  To secure intelligence, there must be age, experience, and high intellectual powers and attainments.  To secure independence, there must be numbers, as well as talents, and a confidence, resulting from permanency of place, dignity of station, and consciousness of patriotism.  The Senate, from its very organization, must be presumed to possess all these qualities in a high degree, and, certainly, in a degree not surpassed by any other political body in the country.” (pp. 76-77)

“The offences, to which impeachments extend, are, “treason, bribery, and other high crimes and misdemeanors.”  No person can reasonably doubt the propriety of the removal, and disqualification from office, of a person, who is guilty of treason, which aims at the overthrow of the government, or of bribery, which corrupts its due administration.  And doubtless there are other high crimes and misdemeanors, to which the power of impeachment may properly be applied, since they may be utterly incompatible with the public safety and interests, and may bring the government itself into disgrace and obloquy.

“But an important inquiry still remains, as to the nature and definition of these crimes.  What is the crime of treason?  What is the crime of bribery?  What are high crimes and misdemeanors in the sense of the Constitution?  For the crime of treason we may resort to the Constitution itself.  For the definition of bribery we must resort to the common law, which alone furnishes the proper exposition of the nature and limits of the offence.  But neither the Constitution, nor the statutes of the United State States, have in any manner defined any other crimes to be high crimes and misdemeanors, and as such, exposing the party to impeachment.  How then are we to ascertain, what offences, besides treason and bribery, are within the scope of the impeaching power?  If we say, that there are no other offences, which are impeachable offences, until Congress has enacted some law on the subject, then the Constitution, as to all crimes except treason and bribery, has remained a dead letter, up to the present hour.  Such a doctrine, would be truly alarming and dangerous.

“Congress have unhesitatingly adopted the conclusion, that no previous statute is necessary to authorize an impeachment for any official misconduct; and the rules of proceeding, and the rules of evidence as well as the principles of decision, have been uniformly regulated by the known doctrines of the common law, and parliamentary usage.  In the few cases of impeachment, which have hitherto been tried, no one of the charges has rested upon any statutable misdemeanors.  It seems, then, to be the settled doctrine of the high court of impeachment, that though the common law cannot be a foundation of a jurisdiction not given by the Constitution, or laws, that jurisdiction, when given, attaches, and is to be exercised, according to the rules of the common law; and that, what are, and what are not, high crimes and misdemeanors, is to be ascertained by a recurrence to that great basis of American jurisprudence.  The reasoning, by which the power of the House of Representatives to punish for contempts (which are breaches of privileges, and offences not defined by any positive laws) has been upheld by the Supreme Court, stands upon similar grounds; for if the House had no jurisdiction to punish for contempts, until the acts had been previously defined, and ascertained by positive law, it is clear, that the process of arrest would be illegal. (pp. 83-85)

 

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About the Author(s)

Ambassador David Scheffer

U.S. Ambassador at Large for War Crimes Issues, 1997-2001. Mayer Brown/Robert A. Helman Professor of Law at Northwestern Pritzker School of Law.