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JEFFERSON'S VIEWS ON HIGH CRIMES AND MISDEMEANORS
>I'm the host of a new bipartisan, results driven
>Internet talk forum that challenges experts to propose their solution and
>social game plan for action.
>
>Currently my staff and I are contacting a diverse group of social experts
>and asking each of them to interpret for our national audience what
they
>view as
>"high crimes and misdemeanors". I have contacted you because I'm
searching
>for
>an expert who can explain Jefferson's view of "high crimes and
>misdemeanors".
Jefferson did not, to my knowledge, directly address the meaning of
"high crimes and misdemeanors." Therefore, to obtain a sense of
Jefferson's view, it is necessary to examine what he did say on related
matters, in the hope that this may give some general idea of his views.
In discussing the matter of Judicial Review (which he generally
opposed), Jefferson suggested a possible alternative in these words:
"There is another opinion entertained by some men of such
judgment and information as to lessen my confidence in my own.
That is, that the Legislature alone is the exclusive expounder of
the sense of the Constitution in every part of it whatever. And
they allege in its support that this branch has authority to
impeach and punish a member of either of the others acting
contrary to its declaration of the sense of the Constitution." --Thomas
Jefferson to W. H. Torrance, 1815. ME* 14:305
Included in the above is the statement (which he apparently fully
accepted) that the Legislature, in effect, "has authority to impeach and
punish" an officer of the executive branch "acting contrary to its
declaration of the sense of the Constitution." In other words,
impeachment, which the Constitution declares to be a remedy for
executive "high crimes and misdemeanors," is intended for acts contrary
to what Congress considers the sense of the Constitution. This would
suggest that "high crimes and misdemeanors" include only those acts by
a president that violate 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 seem to follow that a "high" crime or
misdemeanor would be an act in violation of provisions of the
Constitution itself.
Of course, it could be argued that the above quotation does not
necessarilly suggest that Congress must limit impeachment to acts in
violation of the Constitution. But it does not state that such violations
are "among" the reasons Congress may impeach either. Since we are
admittedly searching for indications and suggestions, that statement,
along with supportive statements in the Constitution itself, should surely
be accepted as indicative.
Assuming this to be so, the question naturally arises concerning "lesser"
crimes and misdemeanors by an executive officer. Again, this question
is not addressed directly. But Jefferson did refer to lesser legal
entanglements that might suggest an 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 to which the president should not be subjected due to the
requirements of his constitutional duties. 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 would seem to suggest that there are violations of
legal requirements, even possibilities of presidential wrongdoing, that
never reach the level of "high crimes and misdemeanors." A president
may have dealings in 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.
In summary, it is my opinion that Jefferson's view of "high crimes and
misdemeanors" would include only acts committed by an executive
officer in the course of his duties and in direct violation of the
Constitution of the United States.
*ME=Memorial Edition, Lipscomb & Bergh, eds.
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If you use the above opinion, I would appreciate your including a link to
the website:
Thomas Jefferson on Politics & Government
http://etext.virginia.edu/jefferson/quotations/
Best wishes,
Eyler Coates