22 December 2019
As even non-lawyers know, in current U.S. legal parlance a misdemeanor is a less serious crime, whereas more serious crimes are classified as felonies. But what is the origin of the term? And how did it come to be used in the context of presidential impeachments in the phrase high crimes and misdemeanors?
Misdemeanor dates to 1487 in the form misdemeaning, where it appears in the Rolls of Parliament (Rotuli parliamentorum), 1278–1503:
For othre misdemenyng of the said John Morys ayenst your Highnesse.
The form misdemeanor appears a few decades letter in a 1504 law code, Act 19 Hen. VII, c. 14 §8:
This Acte to take his effect and begynnyng for such reteynours and offences and other Mysdemeanours as shalbe doon...contrary to the forme of this acte.
The distinction between felonies and misdemeanors in British law was abolished in 1967, but it is retained in the U.S.
Demeanor means conduct, so a misdemeanor is literally bad conduct. It comes from the verb to demean, meaning to conduct, to transact business and to behave oneself. Both senses of demean date to the 14th century. In Old French, the verb dates to the eleventh century, where it appears in La Chanson de Roland.
An ordinary misdemeanor is not to be confused with a high misdemeanor, which is legal horse of a different color. High misdemeanor is a largely archaic term except for one important context, the impeachment of officers, including the president, and judges of the United States. Article II of the U.S. 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.
So a high misdemeanor is very serious misconduct, not a minor offense. The phrase appears as early as 1614 in the Charge of Sir Francis Bacon Knight, His Maiesties Attourney Generall, Touching Duells:
Wheresoeuer an offence is capitall or matter of fellony, if it be acted and performed, there the conspiracy, combination, or practise tending to the same offence is punishable as a high misdemeanor, although they neuer were performed.
Blackstone’s Commentaries on the Laws of England (1765-69) gives the phrase more definition:
Misprisions, which are merely positive, are generally denominated contempts or high misdemesnors; of which the first and principal is the mal-administration of such high officers, as are in public trust and employment. This is usually punished by the method of parliamentary impeachment: wherein such penalties, short of death, are inflicted, as to the wisdom of the house of peers shall deem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability.
When writing the U.S. Constitution, the framers were relying on this English legal tradition. The passage regarding impeachment was revised several times, and this gives us today a fairly good idea of what the framers meant by the term high misdemeanor. The original draft included only “treason and bribery” in the list of offenses. George Mason thought this too limiting and suggested the list be replaced by the word “maladministration.” But the framers thought that too broad a criterion, which would lead to impeachment for differences over policy and make the president subservient to the senate. So, Mason suggested the present language, which was accepted.
A high misdemeanor does not have to be a crime—the use of the phrase in the Constitution predates the U.S. Criminal Code, so that can’t be what the framers meant. And several federal judges were impeached in the nineteenth century for being intoxicated while on the bench, with the first one being in 1803, when many of the framers were still serving in the House and Senate and presumably understood what they had intended the phrase to mean. Being drunk on the bench is improper behavior to be sure but hardly a crime. A high misdemeanor is, perhaps, better defined as a violation of the public trust or one’s oath of office. Alexander Hamilton, in Federalist 65, writes of high misdemeanors:
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.
There have been three presidential impeachments in U.S. history. (The case of Richard Nixon would have resulted in another impeachment had he not resigned before the House voted on his articles of impeachment.) Andrew Johnson was impeached in 1868 for violating the Tenure of Office Act by dismissing and replacing his Secretary of War without the consent of the Senate and for “bringing disgrace and ridicule to the presidency by his aforementioned words and actions.” Neither of these are crimes, but the first is a clear violation of his oath to “faithfully execute the laws of the United States.” Johnson was acquitted by the Senate by only one vote. Bill Clinton was impeached in 1998 for lying under oath to a grand jury and by so doing obstructing justice. Both of these are crimes, but the nature of the lie, to cover up an extramarital affair, is hardly a violation of the public trust, so whether or not this case constituted a high misdemeanor is a matter of opinion. Clinton too was acquitted by the Senate. In 2019, Donald Trump was impeached for “abuse of power” and “obstruction of justice.” The article on abuse of power included the elements of the crime of bribery but did not use that word. The obstruction of justice charge was for preventing administration officials from obeying Congressional subpoenas. Both are crimes, with the one essentially constituting bribery, which is explicitly defined in the Constitution as an impeachable offense, as well as violations of the public trust. As of this writing, the Senate has yet to take up the case, but it is expected to acquit him of both charges.
Given this history, perhaps then-Representative Gerald Ford was correct when in 1970 he defined an impeachable offense and high misdemeanor as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” Ford, of course, would become president after Nixon was driven from office by an impeachment inquiry.
Sources:
Oxford English Dictionary, third edition, June 2002, s. v. misdemeanour, n.; misdemeaning, n.
Oxford English Dictionary, second edition, 1989, s. v. demeanour, n.; demean, v.1.