The impeachment clause of the American Constitution is fashioned upon the English experience with impeachment used frequently as a Rule of Law community emerged in Britain. There, the supremacy of Parliament, especially the House of Commons, was the result. As Parliament came to prevail over Tudor and Stuart monarchical power, Parliament used impeachment to lessen the power of the monarchy vis-à-vis Parliament. Since the King could do no wrong, Parliament picked off the Crown’s leading supporters in government, impeaching and punishing the offenders, thus over time, curtailing monarchical power. In England, the Bill of Impeachment, with its articles of impeachment, originated in Commons and, passing Commons, proceeded to trial before the House of Lords, the law lords playing a significant role.

In our own constitutional history, the impeachment trial of Warren Hastings, Governor-General of India, crown jewel of England’s colonial empire, was on trial in England while our Constitution was drafted in Philadelphia in 1787. The constitutional language in the impeachment clause says the “President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanors.”(Art. 2, sect. 4) In the English experience, impeachment was a criminal process carrying criminal sanctions, often punished by execution. In the American experience, while the language of “high crimes and misdemeanors” was taken from English law, the Constitution clearly removes all criminal punishment from the impeachment process. The only penalty is removal from office, with later criminal trial possible within the judicial process. This evolution in American thought can be seen in the change of venue for trial for presidential impeachment from the Supreme Court, as originally drafted, to the Senate, with the Chief Justice presiding over the Senate trial, in the case of presidential impeachment. The Constitution clearly states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any Office of honor, trust or profit under the United States: but the Party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”(Art.1, sect. 2).

Impeachment of the president is a political process to preserve the constitutional government from political offense of the highest order. This process allows under very restrictive circumstances the Congress, the political branch, to remove the President by trial in the Senate, with the judicial branch represented by the Chief Justice presiding over the Senate. The House, after voting on articles of impeachment, acts as prosecutor in the Senate. Members of the Judiciary Committee of the House normally fulfill this function.

“High Crimes and Misdemeanors” most usually involve gross abuse of Congressional powers by the President. Alexander Hamilton described the impeachable offenses as having “a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” Mason regarded the purpose of impeachment to be the prevention of “great and dangerous offenses,” resulting from “attempts to subvert the Constitution.” James Iredell, later to become a Justice of the Supreme Court, in the North Carolina ratifying convention, cited as an example of an impeachable offense, the president lying to the Congress in the conduct of foreign policy. James Wilson, perhaps the greatest legal mind of the Convention, said that impeachment was “confined to political characters, to political crimes and misdemeanors, and to political punishments.”

It was clear after the occurrence of 9/11 that Mr. Bush had already planned an attack upon Iraq, even though Iraq had no role in the events of nine/eleven. This is planning, and later waging, a war of aggression. This violates the United Nations Charter and the law created by the Nurenberg Tribunal. Waging aggressive war is a high crime and misdemeanor. The subjugation of rights guaranteed in the Constitution to our citizens, in the Bill of Rights, by this administration also constitutes a high crime and misdemeanor. The total mismanagement of the war in Iraq, together with the huge damage done to the U.S. military also violates the presidential oath of office.

If we are ever to redeem ourselves in the eyes of the world; if we are ever again to presume to take upon ourselves the mantle of Washington, Adams, Jefferson, and Madison, we must remove the mediocrity who now holds the office of President, together with his Vice President, Mr. Cheney, the dark force who has masterminded much of our nightmare in the conduct of this illegal war of aggression and the maladministration of the executive office of President of the United States.
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Edwin Brown Firmage bio, website
Salt Lake City, Utah, U.S. A. is the Samuel D. Thurman Professor of Law, Emeritus, at the University of Utah College of Law. During the Nixon impeachment he wrote “The Law of Presidential Impeachment,” 1973 Utah Law Review 681; and “Removal of the President: Resignation and the Procedural Law of Impeachment,” 1974 Duke Law Journal 1023. He is also the author of “Why Did the Watchdogs Never Bark?,” in God and Country: Politics of Utah (Jeffrey E. Sells, ed. with a foreword by Harold J. Berman, Signature Books 2005), Chain The Dogs of War, as well as a dozen other books.