Impeaching Hegseth Without Proof of a Serious Crime Would Be Unconstitutional

Commentary

It took about five minutes after Election Day for Democrats to start talking about impeachment once again. This time, they want to begin with War Secretary Pete Hegseth before going after President Donald Trump.

Why impeachment?

You might think Democrats would focus on “affordability”—the issue that won the election for them. Realistically, however, they can’t do that. Aside from specific commodities sensitive to particular events, “unaffordability” is just a new name for general price inflation. And general price inflation is due mostly to excessive federal spending and the resulting high deficits and large debt load.

However, Democrats can’t attack excessive spending and debt without hurting their own power centers: the federal bureaucracy, federal contractors, public sector unions, universities, and recipients of federal grants and loans.

So they discuss impeachment instead.

To be sure, some Republicans have used the same tactic. Republicans used to be concerned about deficits and resultant inflation, but since Trump’s first election, they have sidelined those issues. In 2023, many of them started to discuss impeaching then-President Joe Biden instead.

In response, I wrote a column for The Epoch Times cautioning against loose impeachment talk. I explained that the Constitution does not allow impeachment for incompetence or bad policy. Impeachment of an officer requires specific evidence that the officer committed one or more serious crimes.

What was true then is true now.

Some Background

Of course, impeachment alone does not remove a person from office. Impeachment is the House’s formal accusation, much like a criminal indictment. If a majority of the House impeaches an officer, then the Senate tries him. The officer is acquitted unless two-thirds of Senators vote to convict. (Trump, if you recall, was impeached and acquitted twice.)

The Constitution’s principal impeachment-and-removal provision is Article II, Section 4. Like so many other terms in the document, it was a compromise. At the Constitutional Convention, some delegates favored the British system, which would allow impeachment and removal for any reason, so long as the specified voting majorities were met. Other delegates opposed any provision for impeachment at all, at least for the president. Still others favored including such a provision but wanted to severely limit it, perhaps to treason alone.

The resulting compromise allows impeachment and removal. But it enumerates only four grounds for impeachment and removal, and incompetence and policy disagreements are not on the list.

Specifically, Article II, Section 4 requires that the officers have committed “Treason, Bribery, or other high Crimes and Misdemeanors.” From the historical record, we know that the adjective “high” modifies “Misdemeanors” as well as “Crimes.” Thus, to be removed from office, a person must be guilty of:

* treason, the most serious of felonies, traditionally punished by drawing and quartering; or

* another felony (“high Crime”)—a category of offense traditionally punishable by hanging or decapitation; or

* bribery, a serious crime not punishable by death; or

* another “high … Misdemeanor.”

Keep in mind that the Constitution severely limits the scope of the crime of treason. (Article III, Section 3, Clause 1.) An officer can engage in very bad conduct and still not be guilty of treason.

‘High … Misdemeanors’

For many years, jurists and academics argued over the meaning of the term “high misdemeanor.” For example, in 2019, during hearings on the first impeachment of Trump, four expert witnesses testified to Congress, and each disagreed with the others on the meaning of “high … Misdemeanors.”

I had earlier published an article suggesting that “high misdemeanor” meant breach of fiduciary duty. But additional research suggested that my hypothesis was probably wrong. I, like other scholars, had been misled by the idiosyncratic way the British Parliament had used the term “high misdemeanor”—a usage not incorporated into the Constitution.

So I renewed my research, and this time I went beyond the limited materials consulted by others and into the massive corpus of 18th-century legal sources: case reports, treatises, statutes, law dictionaries, and so forth. I published my conclusions in 2020. Significantly, no one has even tried to rebut them.

What I Found

In 18th-century Anglo-American law, each of the Constitution’s impeachment grounds had specific meanings. Strictly speaking, a “misdemeanor” was any crime, and “high misdemeanor” and its synonyms (“misprison,” “great misdemeanor”) denoted any serious crime. So technically, the constitutional categories of treason, bribery, and felony were all high misdemeanors as well.

However, the term “high misdemeanor” also had a more common meaning. As usually employed, “high misdemeanor” denoted a serious crime that merited jail time, fines, or other punishment—but not death. Examples of high misdemeanors were attempted murder, receiving stolen goods, assault, and bribery.

This was the meaning employed by Foreign Affairs Secretary John Jay in a 1787 letter to the Confederation Congress in statutes passed by the First Federal Congress. It was also the meaning inserted into the Constitution.

Thus, the Constitution’s phrase “Treason, Bribery, or other high Crimes and Misdemeanors” is structured this way:

* It lists one high crime (“Treason”).

* Next it lists one high misdemeanor (“Bribery”).

* Finally, it adds a catch-all phrase (“other high Crimes and [high] misdemeanors”) for each of the earlier two categories.

Thus, impeachment requires proof either of a capital crime or of a crime meriting severe punishment, such as heavy prison time. As emphasized by Edmund Randolph of Virginia, one of our leading Founders, political disagreements are not enough. Bad policies are not enough. Not even negligence, incompetence, or incapacity is enough. The remedy for incapacity consists of the procedures of the 25th Amendment. The remedies for the other problems are elections and push-back from Congress and the states.

Conclusion

A key component of our Constitution is an executive branch independent of the legislature, rather than subordinate to it, as in Britain. The Founders’ impeachment compromise helped assure this independence while still providing for removal of those guilty of conduct that is truly criminal.

Democrats controlling the new Congress should focus on solving America’s underlying problems rather than impeaching officials they do not like.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.