Analysis: In the end, both advocates and opponents of impeachment might be focusing on the wrong word: “crimes”
had an impeachment clause that tracked the U.S. Constitution’s almost word-for-word except that the list of impeachable offenses for state officials is shortened tomisdemeanor: “The governor, and all other civil officers under this commonwealth, shall be liable to impeachment for any misdemeanor in office.” Thehad an impeachment provision virtually identical to that of Pennsylvania.
The proceedings of the Constitutional Convention strongly indicate that one of the most influential framers of the Constitution, James Madison, understood “misdemeanor” as having a different and broader meaning than criminal acts. In the waning days of the convention, on September 8, 1787, Virginia delegate George Masonto add “maladministration” to the existing list of impeachable offenses—at that point, only “Treason or Bribery.
The Trump defense team has seized on Mason’s substitution of “high crimes and misdemeanors” for “maladministration” as supporting its contention that impeachment must be based on commission of a crime. However, the story looks quite different if we—literally—turn the page.
Madison’s statement seems to tell us two things: First, he did not see “misdemeanor” in the amended impeachment clause as a term with well-defined limits, as would be the case if it instead said statutory violations or crimes. Instead Madison suggested that many kinds of acts “might be called” a misdemeanor. Second, Madison saw inclusion of “misdemeanors” in the impeachment clause as giving the Senate greater discretion to remove the president than just the phrase “other High Crimes.
In the end, both advocates and opponents of impeachment might be focusing on the wrong word, “crimes.” Abuse of power and obstruction of Congress, as alleged in the House’s articles of impeachment against Trump—even if not crimes—could well be considered “misdemeanors,” meaning “misconduct,” specifically misconduct in office. This could provide the basis for impeachment and removal.
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