Constitutional analysis always begins with the text. The words “treason, bribery, or other high crimes and misdemeanors” certainly sound criminal. William Blackstone, the 18th century English jurist, said that misdemeanors are a species of crime, and that the words “crimes and misdemeanors” are synonymous.
Opponents of this view argue that the framers intended to adopt the British meaning of high crimes and misdemeanors. The historical evidence contradicts that. One of the central criteria for impeachment under British law was the crime of “maladministration.”
When one of the framers introduced that term, the father of the Constitution, James Madison, vehemently opposed it. He argued that “so vague a term will be equivalent to a tenure during pleasure of the Senate.”
This proves that the framers did not accept the British approach whole hog. By explicitly rejecting maladministration, they implicitly rejected abuse of power as a permissible criterion for impeachment. Maladministration and abuse of power were regarded as analogous terms.
Indeed, professor Nikolas Bowie, who strongly favors impeachment in this case, has acknowledged that abuse of power is synonymous with misconduct in office.
This confirms my view that had the framers been presented with a proposal to include abuse of power or obstruction of Congress, they would have rejected it with the same vehement certainty and fears that inclined them to reject maladministration.
The intellectual burden — and it is a heavy one — is on those who would not follow the plain meaning of the constitutional criteria for impeachment. To claim that these criminal words should be interpreted to include vague noncriminal behavior is in clear violation of every rule of constitutional construction and common sense.
As Justice Antonin Scalia once observed: “If one speaks of Mickey Mantle, Rocky Marciano, Michael Jordan and other great competitors, the last noun does not reasonably refer to Sam Walton (a great competitor in the market) or Napoleon Bonaparte (a great competitor on the battlefield).”
This commonsense rule of interpretation would clearly require that the words “other high crimes and misdemeanors” be interpreted only to include criminal conduct akin to treason and bribery. That burden has not been met by flawed and incomplete historical claims that the framers intended to follow the British system whole hog — a claim that is completely undercut by their rejection of maladministration.
Alan M. Dershowitz, a member of President Donald Trump’s impeachment legal team, is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of “The Case Against the Democratic House Impeaching Trump.”
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