Monday, August 12, 2019

Frank O. Bowman III's "High Crimes and Misdemeanors"

Frank O. Bowman III is a law professor, legal historian, and former federal and state prosecutor. He has written extensively on impeachment in legal journals and the popular press, including the New York Times, Politico, and Slate, where he is regular contributor. He has provided testimony to both Houses of Congress on multiple subjects including the meaning of 'high crimes and misdemeanors' during the Clinton impeachment crisis.

Bowman applied the “Page 99 Test” to his new book, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump, and reported the following:
Interesting premise, this “page 99 test.” Can’t say it works perfectly for my book, but reading page 99 does land the reader at a kind of hinge in the argument and therefore hints at one important theme.

Page 99 falls in the middle of the explanation of how the Framers of the American constitution meant impeachment to fit into its system of checks and balances. It follows the account of how, in the summer of 1787, George Mason, James Madison, and the rest decided to include the impeachment power in their constitution, and why they settled on “treason, bribery, or other high crimes and misdemeanors” as the definition of impeachable conduct. “High crimes and misdemeanors” was a phrase used by the British parliament since 1386 to describe conduct by ministers of the crown (and others) that parliament found to be impeachable. The question asked on page 99 is whether the American Framers intended these enigmatic words to mean much the same thing they had meant in England.

I argue that the answer is yes, and that this has at least three important implications:

First, the Framers adopted the British view that impeachment is an essential tool with which the legislative branch combats the tendency in hereditary or elected executives to autocracy and resistance to the rule of law.

Second, the Framers had a good understanding of the "high crimes and misdemeanors" for which parliament impeached royal officers: serious ordinary crimes, corruption, betrayal of the country’s foreign policy interests, gross incompetence or maladministration of office, and subversion of the constitution. They intended such behavior by American officials to be impeachable. They also intended Congress to have the same power as had parliament to decide that bad official behavior was impeachable even if not criminal in the legal sense.

Third, the Framers placed the power to impeach in the legislature, and adopted the ancient, and flexible, standard of “high crimes and misdemeanors” because they intended impeachment to be a political process in the large sense of a mechanism for defending constitutional order.

The Framers nonetheless made impeachment hard by adopting a 2/3 requirement for conviction in the Senate because they didn't want Congress throwing out presidents in partisan hissy fits. Still, the Framers meant it to be used if, somehow, a manifestly unfit person were to become president and endanger the constitutional order they so carefully constructed.

Most of the book examines the relatively few cases of American impeachment – Senator William Blount (1797), Justice Samuel Chase (1805) and other judges, Secretary of War William Belknap (1876), and Presidents Andrew Johnson, Richard Nixon, and Bill Clinton – for lessons on how the impeachment power should properly be employed. It closes by asking whether Donald Trump is the contingency for which the Framers gave us the weapon of impeachment, and, if so, whether our politics is so broken that we can no longer wield it.
Learn more about High Crimes and Misdemeanors at the Cambridge University Press website.

--Marshal Zeringue