high crimes and misdemeanors in presidential impeachment

Meaning of "High Crimes and Misdemeanors"

by Jon Roland, Constitution Society

Sick Bias Radio

The question of impeachment turns on the meaning of the phrase in the Constitution at Art. II Sec. 4, "Treason, Bribery, or other high Crimes and Misdemeanors". I have carefully researched the origin of the phrase "high crimes and misdemeanors" and its meaning to the Framers, and found that the key to understanding it is the word "high". It does not mean "more serious". It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.

Under the English common law tradition, crimes were defined through a legacy of court proceedings and decisions that punished offenses not because they were prohibited by statutes, but because they offended the sense of justice of the people and the court. Whether an offense could qualify as punishable depended largely on the obligations of the offender, and the obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.
Offenses of this kind survive today in the Uniform Code of Military Justice. It recognizes as punishable offenses such things as perjury of oath, refusal to obey orders, abuse of authority, dereliction of duty, failure to supervise, moral turpitude, and conduct unbecoming. These would not be offenses if committed by a civilian with no official position, but they are offenses which bear on the subject's fitness for the duties he holds, which he is bound by oath or affirmation to perform.
Perjury is usually defined as "lying under oath". That is not quite right. The original meaning was "violation of one's oath (or affirmation)".
The word "perjury" is usually defined today as "lying under oath about a material matter", but that is not its original or complete meaning, which is "violation of an oath". We can see this by consulting the original Latin from which the term comes. From An Elementary Latin Dictionary, by Charlton T. Lewis (1895), Note that the letter "j" is the letter "i" in Latin.

periurium, i, n,, a false oath, perjury.

periurus, adj., oath-breaking, false to vows, perjured. iuro, avi, atus, are, to swear, take an oath.

iurator, oris, m., a swearer.

iuratus, adj., sworn under oath, bound by an oath.

ius, iuris, that which is binding, right, justice, duty.

per, ... IV. Of means or manner, through, by, by means of, ... under pretense of, by the pretext of, ....

By Art. II Sec. 1 Cl. 8, the president must swear: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." He is bound by this oath in all matters until he leaves office. No additional oath is needed to bind him to tell the truth in anything he says, as telling the truth is pursuant to all matters except perhaps those relating to national security. Any public statement is perjury if it is a lie, and not necessary to deceive an enemy.
When a person takes an oath (or affirmation) before giving testimony, he is assuming the role of an official, that of "witness under oath", for the duration of his testimony. That official position entails a special obligation to tell the truth, the whole truth, and nothing but the truth, and in that capacity, one is punishable in a way he would not be as an ordinary person not under oath. Therefore, perjury is a high crime.
An official such as the president does not need to take a special oath to become subject to the penalties of perjury. He took an oath, by Art. II Sec. 1 Cl. 8, to "faithfully execute the Office of President of the United States" and to "preserve, protect and defend the Constitution of the United States" to the best of his ability. While he holds that office, he is always under oath, and lying at any time constitutes perjury if it is not justified for national security.
Independent Counsel Kenneth Starr erred in presenting in his referral only those offenses which could be "laid at the feet" of the president. He functioned like a prosecutor of an offense against criminal statutes that apply to ordinary persons and are provable by the standards of "proof beyond a reasonable doubt". That is not to say that such offenses are not also high crimes or misdemeanors when committed by an official bound by oath. Most such offenses are. But "high crimes and misdemeanors" also includes other offenses, applicable only to a public official, for which the standard is "preponderance of evidence". Holding a particular office of trust is not a right, but a privilege, and removal from such office is not a punishment. Disablement of the right to hold any office in the future would be a punishment, and therefore the standards of "proof beyond a reasonable doubt" would apply before that ruling could be imposed by the Senate.
It should be noted, however, that when an offense against a statute is also a "high crime or misdemeanor", it may be, and usually is, referred to by a different name, when considered as such. Thus, an offense like "obstruction of justice" or "subornation of perjury" may become "abuse of authority" when done by an official bound by oath. As such it would be grounds for impeachment and removal from office, but would be punishable by its statutory name once the official is out of office.
An executive official is ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons. It is not necessary to be able to prove that such failures or violations occurred at his instigation or with his knowledge, to be able, in Starr's words, to "lay them at the feet" of the president. It is sufficient to show, on the preponderance of evidence, that the president was aware of misconduct on the part of his subordinates, or should have been, and failed to do all he could to remedy the misconduct, including termination and prosecution of the subordinates and compensation for the victims or their heirs. The president's subordinates include everyone in the executive branch, and their agents and contractors. It is not limited to those over whom he has direct supervision. He is not protected by "plausible deniability". He is legally responsible for everything that everyone in the executive branch is doing.
Therefore, the appropriate subject matter for an impeachment and removal proceeding is the full range of offenses against the Constitution and against the rights of persons committed by subordinate officials and their agents which have not been adequately investigated or remedied. The massacre at Waco, the assault at Ruby Ridge, and many, many other illegal or excessive assaults by federal agents, and the failure of the president to take action against the offenders, is more than enough to justify impeachment and removal from office on grounds of dereliction of duty. To these we could add the many suspicious incidents that indicate covered up crimes by federal agents, including the suspicious deaths of persons suspected of being knowledgeable of wrongdoing by the president or others in the executive branch, or its contractors.
The impeachment and removal process should be a debate on the entire field of proven and suspected misconduct by federal officials and agents under this president, and if judged to have been excessive by reasonable standards, to be grounds for removal, even if direct complicity cannot be shown.

Message from Our Founding Fathers.

Save Our Christmas Tree Keep Christ in Christmas

  When I say that things have really changed since I was a young boy, I mean it.  Remember when we had Christmas trees in our classrooms and we put our hand over our heart and recited the Pledge of Allegiance to the American Flag ?   It breaks my heart to see the Democrats and Left Wing attach Christ, Christmas and anyone who believes and prays to God and Christ.  If you (democrats) think your going to take Christ out of America, you are sadly mistaken because there are too many Christians that are fighting back and are ready to stand against the hateful words and actions that you continue to use against us. 

  Dear Lord,
Please continue to watch over America, continue to carry us through our darkest hour.  Thank you for the mirales that you have give us yesterday, the miracles that you gave us today and the miracles that you are going to give us tomorrow.  Lord give us the stregnth to make the hard decisions and stand up in the fact of evil, knowing that you will always be in our lives whether or not we ask.  And finally, Lord grant us the wisdom to know the best, safest and quickest way to remove Socialism and Spirit killing Communism from our beloved Democratic Capitalist America which will allow all men and women to continue to Live Free from Tyrany and Dictatorship and be able to worship and praise you everywhere in our daily live.

  In Jesus Christ we Pray Amen.

Amen..  ...

The Norquist Tax Pledge vs Fiscal Cliff

For those of you that don't know, Grover Norquist is a conservative activist who created an "Anti-Tax Pledge" for politicians to sign who are against any and all tax increases in order to let voters know where they stand. All over the news lately (or at least since immediately after the election) is what is called "The Fiscal Cliff." In a nutshell, the Fiscal Cliff is what we are told the country will fall over in January 2013 because of an automatic rise in taxes coupled with a mandatory sequestration on government spending which expert say will be devastating to the economy. What doesn't make sense is that liberals are fear-mongering the public into pressuring the Norquist Pledge Signers into caving in to raising taxes. It doesn't make sense because if nothing is done, taxes are set to raise automatically because the Bush Tax cuts expire. Tom Cohen of CNN says,

"With the U.S. economy showing more signs of improvement in its long recovery from recession, economists point to fears about higher taxes in 2013 as a potential threat to rising consumer confidence."

It seems to me that what I am seeing is very well executed plan by Democrats to put Republicans in a no-win situation: Either they violate their pledge and agree on a compromise which includes raising taxes which can be used against them when the higher taxes are blamed for stunting the growth of the economy even further, OR they can blame Republicans for sending us over the fiscal cliff by doing nothing, OR they can blame Republicans for the national deficit spiraling out of control if they keep their Norquist Pledge and pass legislation to not allow a raise in taxes.

What everyone should keep in mind is that taxes are the dollars earned by the hard work of people like you and I and redistributed to politicians to do with it what they want to. Money is power, so this effectively gives even more power to the Socialists in control of Washington.

Please do not fall for this fear mongering and focus on what's real. We don't have a TAX problem. While it might not be true for the bottom 47% of wage earners, the government gets plenty of our money, in terms of percentage of our income. We have a REVENUE problem. The BEST way to increase revenue is by ADDING more taxpayers by way of increasing the number of jobs (decreasing unemployment) and by increasing average wages (by fixing the economy). And honestly, the only reason we have a revenue problem is because the amount of revenue is nowhere near what the government spends, hence the national deficit. So we also have a major SPENDING problem. The biggest consequence of the current spending problem under the Socialists in control is that they are using a big chunk of the taxpayers money to pay able-bodied people to live comfortable enough to NOT work. This creates an unstable situation of reducing the need to work for people who would otherwise be able to earn enough to pay the taxes to increase the revenue that the government so desperately needs. The end result is a collapse, plain and simple. So Democrats are doing this free-stuff-givaway of taxpayer money in order to earn votes necessary to make such a giveaway possible all at the expense of the entire society, and possibly our beloved country as we have known it. What happens to the United States and her Constitution when the government that runs it and protects it dissolves? And are Democrats doing this knowingly or are they just ignorant of these consequences?