The Jeffersonian Perspective

Commentary on Today's Social and Political Issues
Based on the Writings of Thomas Jefferson


High Crimes and Misdemeanors

Thomas Jefferson did not, to my knowledge, directly address the meaning of "high crimes and misdemeanors," which, along with treason and bribery, describe the offenses that may subject a civil officer to removal from office following impeachment and conviction. Therefore, to obtain a sense of what might be Jefferson's view, it is necessary to examine what he did say on matters related to impeachment, in the hope that this may give some general idea of where he stood.

In the course of discussing the matter of Judicial Review (which he generally opposed), Jefferson suggested a possible alternative in these words:

In other words, under this view, the legislature would have the authority to declare what the Constitution means, just as the Supreme Court today has the authority to declare what the Constitution means. And this is proposed because the Constitution, as it exists, gives the legislature the authority to impeach a civil officer who acts contrary to what they (the legislature) say the Constitution means.

Therefore, the above quotation contains the statement (which Jefferson apparently fully accepted) that the Legislature, in effect, "has authority to impeach and punish" a civil officer of government "acting contrary to its declaration of the sense of the Constitution." In other words, impeachment, which the Constitution declares to be a proper response to executive "high crimes and misdemeanors," is intended for acts contrary to what Congress considers the sense or meaning of the Constitutional provisions that describe a civil officer's duties and responsibilities, including, in the case of the President, his oath to "preserve, protect and defend the Constitution of the United States." The Constitution is the "highest" law of the land, and it would thus follow that a "high" crime or misdemeanor is an act in violation of a provision of the Constitution itself in the course of executive duties as covered by the Constitution. This is "high level" malfeasance in office.

The purpose of impeachment is to protect the Constitution, not to act as a substitute for, or duplication of, the system of justice itself. It was meant to remove persons from office for official misconduct. Ordinary violations of the law are personal, not public matters, if they have no direct connection to the official's public duties. With respect to such personal acts, a civil officer is subject to the law just like any other citizen, and he is rightly prosecuted in a court of law, just like any other citizen. As a practical matter, the President might not be prosecuted until after his term expired, but he could certainly be prosecuted after he leaves office, even if he is impeached and removed from office. In no way would this be considered "double jeopardy." So impeachment is obviously an entirely other process than the administration of justice.

Assuming that removal from office is intended only for high crimes against the Constitutional government itself, the question naturally arises, What is the responsibility of a civil officer with respect to "low" crimes and misdemeanors? If "high" crimes and misdemeanors relate to official responsibilities, what are "low" crimes? If he is not impeached for these, how is he held accountable?

Obviously, "low" crimes and misdemeanors are instances of wrongdoing that do not involve the performance of official duties and obligations under the Constitution. A civil official can be held responsible for these in a court of law, just as he can be held responsible for "high" crimes and misdemeanors after he is impeached and removed from office, if his official malfeasance involves actions for which he is subject to prosecution under the law. The legal responsibility with respect to "high" or "low" crimes is in no way affected by impeachment and removal from office.

It should be noted that when the President takes the oath of office, he does not swear to obey the laws -- that is taken for granted in a democratic republic, where every citizen is responsible for obeying the law, and no exception is made for the citizen who is elected President. He takes an oath to "preserve, protect and defend the Constitution of the United States," and is charged with the duty to "take care that the laws be faithfully executed." And if he acts "contrary to [Congress'] declaration of the sense of the Constitution," he is subject to impeachment. The courts are not entrusted with the impeachment of civil officials; that is under the jurisdiction of Congress. But by the same token, Congress is not entrusted with prosecutions under the law; that is under the jurisdiction of the Judicial System. The impeachment process is intended for the protection and preservation of Constitutional government. The judicial process is intended for prosecutions under the law, and as is so often said, No person is above the law -- not even the President. Only in a monarchy does it happen that "The King can do no wrong."

Can a civil officer be prosecuted for a "low" crime while holding office? Here, the issue is debatable, and while this question is not addressed directly by Jefferson, he did refer to lesser legal entanglements that might suggest a partial answer.

Jefferson recognized that there are minor legal requirements which should not interfere with the president's administration of the executive department. For example, he rejected the idea that a president might be required to testify in a court case away from the seat of government. This has nothing to do with presidential wrongdoing, except that the act of disobedience to a court order might itself be considered an act of presidential wrongdoing. Thus he wrote:

    "The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other, and none are more jealous of this than the Judiciary. But would the Executive be independent of the Judiciary if he were subject to the commands of the latter and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his constitutional duties?" --Thomas Jefferson to George Hay, 1807. ME 11:241

Thus, Jefferson apparently felt that there was some level of legal obligation, even official in nature, to which the president should not be subjected due to the requirements of his constitutional duties. But he writes further:

    "If the Constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law subjecting him to minor duties inconsistent with these? The Constitution enjoins his constant agency in the concerns of six [now 250] millions of people. Is the law paramount to this, which calls on him on behalf of a single one?" --Thomas Jefferson to George Hay, 1807. ME 11:240

These statements, taken together, would seem to suggest that there are minor violations of legal requirements, even possibilities of presidential wrongdoing in the form of disobedience to a court order, that never reach the level of "high crimes and misdemeanors." A president may have differences with the court over these matters, but they never raise questions of impeachment. The statements further suggest that the processing of these legal matters should be handled on an ad hoc basis with due regard to the President's duties and obligations under the Constitution. If it is a minor procedural matter that might take the President away from his more important duties, then those duties take precedence.

Presumably, if the President is charged with a major crime, he may be prosecuted while in office, and if found guilty, may be sentenced and imprisoned. There is nothing forbidding the functioning of the judicial process with respect to a President, if it is fully warranted. His imprisonment, if it came to that, would no doubt be considered an "inability to discharge the powers and duties of the said office," and that "the same shall devolve on the Vice President." For a more minor offense, prosecution would probably be delayed until he left office.

In summary, it appears that Jefferson's view of impeachment for "high crimes and misdemeanors" includes only acts committed by a civil officer in the course of his duties and in direct violation of the Constitution of the United States; that other crimes and misdemeanors make him subject to the judicial process, just like any other citizen, but that minor legal matters should not be allowed to interfere with the President's performance of his more important duties while he is in office.

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Cross References

To other essays in The Jeffersonian Perspective

To Thomas Jefferson on Politics & Government

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© 1998 by Eyler Robert Coates, Sr.