Demanding that Kavanaugh recuse himself from any Supreme Court rulings on the Mueller investigation is silly.
I am in the midst of a series on the constitutional power of impeachment. A quick review: My first post set forth my core thesis – that the power of impeachment is extraordinarily broad and confers upon the two houses of Congress a substantial range of discretion to judge what types of misconduct by executive and judicial officers are sufficiently wrongful to warrant the official’s removal from office. My second post explained and defended my constitutional interpretive premises – that the proper approach to discerning the meaning of the Constitution’s provisions is to seek the objective, original meaning of the text, in its social and linguistic context. I will refer back to that post at several points in this one, in which I turn to the historical evidence of the original meaning and scope of the impeachment power.
My third installment took a brief historical anniversary detour to consider the hypothetical propriety of impeaching Vice President Aaron Burr. My fourth and fifth installments rapidly canvassed my prior writings concerning impeachment as a test of my own consistency. (I hope I passed.)
As promised, I now return to the heart of the analysis: What is the proper scope of the constitutional power of impeachment? To what types of misconduct by executive (and judicial) officers does the terms extend? What is the original meaning, and sweep, of the term “high Crimes and Misdemeanors”?
The search is for the objective, original meaning of the words of the Constitution: what would a reasonably well informed speaker or reader of the English language, in America, at or about the time of the Constitution’s drafting, have understood the words and phrases of the Constitution to mean, in this social, political, and linguistic context? In a sense, this is an “informed reasonable person” standard, derived from textual and historical evidence – a hypothetical construct.
It is not a search for the subjective intentions of any particular person, group, or body. Evidence of such specific intentions, understanding, or expectations of course can constitute useful, potentially probative evidence of probable textual meaning, in several respects: it usefully displays how the Constitution’s language was actually used by the people who were using it, in social and political context; it can reveal specialized usages and understandings; and it is a guard against linguistic anachronism – the errant tendency of many readers today to read the words of the 1789 Constitution in modern senses, which might vary significantly from the meanings such words or phrases had at the time. All of these features are present with respect to historical evidence of the meaning of “high Crimes and Misdemeanors.” But keep in mind that the goal is to ascertain the objective meaning of the words and terms used, not the specific “intentions” of the framers. The two often work in harmony, but not invariably so.
Terms of Art Flowing from Practice
Here’s the key point in summary: the evidence of original meaning overwhelmingly supports the conclusion that, at the time of the framing of the U.S. Constitution, the composite term “high Crimes and Misdemeanors” was a well-established, familiar legal term of art that the framers consciously borrowed from longstanding English practice and usage dating back four centuries. That meaning was not so much “vague” as simply broad: a sweeping delegation of power and responsibility to the legislative bodies entrusted with the impeachment power. The term “high Crimes and Misdemeanors” had a broad meaning in English practice and in the American understanding, confiding to the two houses of the national legislature (under the U.S. Constitution, the House and the Senate, exercising their respective roles in the impeachment process) a sweeping range of power to punish what those political bodies determined to be misconduct or abuse of power by executive and judicial officers of a wide variety of types.
The meaning of “high Crimes and Misdemeanors” was, so to speak, its own distinct thing. It was not a combination of “crimes” and “misdemeanors” as understood in today’s criminal-law sense. It was instead a unique legal term with its own meaning. The framers of the Constitution understood and used the phrase in that specialized sense, consciously adopting a known English-practice term of art in preference to other proposed formulations of the impeachment standard. And the ratification debates uniformly reflect that same broad understanding.
My brisk tour of the evidence of the original meaning therefore begins with the backdrop English understanding of “high Crimes and Misdemeanors.” Tomorrow, I will proceed through those debates of the Constitutional Convention – fascinating deliberative history that reveals an intention to enact a broad standard for impeachment reaching serious wrongs of a “political” nature (as well as more pedestrian criminality) and then choosing the familiar English term “high Crimes and Misdemeanors” as the language best capturing that understanding.
The English Historical Backdrop Understanding
By the time the Constitutional Convention assembled in Philadelphia in 1787, the term “high Crimes and Misdemeanors” had been employed in the English practice of impeachment for more than four centuries. Historians, researchers, and constitutional scholars have plumbed the depths of English practice, discussing and debating the specifics of charges in impeachments dating back as early as 1386. For purposes of understanding the meaning of the U.S. Constitution, however, those details are perhaps less important than the broad observation that impeachment specifically for “high Crimes and Misdemeanors” – and frequently employing that very phrase – was a familiar political practice under the English constitution with a broad range of meaning marked by 400 years of experience and practice. 
Over the years, the English Parliament had developed and deployed the power of impeachment in its historic struggles to check the powers of the King and his ministers. The House of Commons had impeached and brought before the House of Lords for trial officers of the crown, including ministers and judges, that they believed had violated the constitution or laws; subverted the rights of Parliament or the system of government; abused or misused power; failed to perform the duties of office faithfully and competently; engaged in self-dealing behavior or misuse of funds; or were guilty of oppression, corruption, or other misbehavior or “mal-administration.”
Reflect on those categories for a moment. They describe a broad array of misconduct, not at all limited to criminality, as we today understand it. Not all persons impeached for the described offenses were convicted, of course. But the range of usage and practice – what was considered to lie within the scope of the power of impeachment for “high Crimes and Misdemeanors” – was unquestionably broad. That range plainly embraced “political” offenses: offenses against the constitution, laws, system of government, prerogatives of other institutions, or the rights and liberties of the people – as well as common law offences that might be punishable by ordinary criminal law.
Though it employed terms that “sound” in criminal law concepts, impeachment was a distinct branch of law under the English constitution. Raoul Berger, in his instructive 1973 book on the historical meaning of impeachment, noted above, showed that “high Crimes and Misdemeanors” was a term the historical usage of which was confined to the jurisdiction of parliamentary impeachments. . Its roots were distinct from the ordinary criminal law, which adopted the terminology “misdemeanor” later. Berger observed that, at the time the term “high crimes and misdemeanors” first appeared in an impeachment proceeding, there was “no such [criminal-law] crime as a ‘misdemeanor.’” 
Sir William Blackstone, in his famous 1765 treatise, Commentaries on the Laws of England – the most widely possessed and read law book in America at the time of the framing of the Constitution and a respected resource of many of the Constitution’s framers – discussed ordinary criminal law and impeachment proceedings separately, in different sections of the fourth book of his epic treatise. While the province of impeachment and the province of the criminal law both involved punishment for “Public Wrongs” – and both employed the words “crimes” and “misdemeanors” – impeachment involved public wrongs of a distinctly different sort. Book IV divides the treatment of different types of public wrongs into numerous subheadings. The terms “crimes” and “misdemeanors” are set forth as general descriptors for public wrongs in Chapter 1. But successive chapters then deal separately with different specific types of offenses.
Significantly, wrongs punishable by impeachment are discussed distinctly in Chapter 9, entitled “Of Misprisions and Contempts, affecting the King and Government.” There, Blackstone employed the term “high misdemeanors” in a specialized sense. The “first and principal” illustration of “high misdemeanors,” Blackstone wrote, is “the mal-administration of such high officers, as are in public trust and employment. This is usually punished by the method of parliamentary impeachment.”
Keep Blackstone’s identification of “high misdemeanors” with “mal-administration” of high officers in mind. It comes back around in the Constitutional Convention’s discussion of the language that ultimately became the Constitution’s impeachment standard.
Chapter 10, entitled “Of Offences against Public Justice” describes another set of offenses punishable by impeachment: the “negligence of public officers, entrusted with the administration of justice.” Blackstone condemns, in strong terms, a particular “offence against public justice, which is a crime of deep malignity,” and especially so because “there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution.” That offence is “the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office.” All such offences against public justice could be prosecuted “either by impeachment in parliament” or, depending upon the rank of the offender, “by information in the court of king’s bench.” Such misconduct was “sure to be severely punished” with penalties including forfeiture of office.
Again, in Chapter 19, Blackstone distinguished among “Courts of a Criminal Jurisdiction” and referred to the jurisdiction of parliamentary impeachment as concerned with “high misdemeanors” committed by high officials or peers:
For, though in general the union of the legislative and judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either dares not or cannot punish.
The upshot is clear: As a matter of English practice and authoritative commentary by the mid eighteenth century, impeachment embraced offenses involving official misconduct not necessarily punishable by the ordinary criminal law. 
One more important piece of data completes the picture of the English backdrop understanding of “high crimes and misdemeanors.” At the same time as the framing of the U.S. Constitution, a prominent impeachment proceeding was taking place in Great Britain – the impeachment of Warren Hastings, Governor-General of India for “high crimes and misdemeanors” in the form of maladministration, corruption, and cruel administration toward the people of India. The proceedings against Hastings had been instituted just a few weeks before the beginning of the Constitutional Convention in Philadelphia in 1787. They were in the full view of the framers – a hot “current events” constitutional topic, as it were – and, as we shall see, were specifically referenced in the delegates’ deliberations at Philadelphia. Once again, the offences charged involved political and administrative misconduct, not merely crimes in the common law sense.
All of this formed a part of the backdrop understanding of the term “high crimes and misdemeanors” at the time the framers adopted it as the U.S. Constitution’s standard governing impeachment. Tomorrow, I pick up with the story of the Constitutional Convention’s decision to embrace this traditional English-precedent standard.
 For excellent distillations of the English history, see the respected 1974 House Judiciary Committee Report on “Constitutional Grounds for Presidential Impeachment” and, more discursively, Raoul Berger’s 1973 book Impeachment: The Constitutional Problems.
 An important caveat: While I find Berger to be an outstanding resource – a first-rate historical detective – Berger’s legal analysis of historical evidence sometimes leaves a lot to be desired. It is frequently highly idiosyncratic and sometimes quite unsound. Berger makes a great research assistant but a mediocre and unreliable constitutional lawyer.
 An aside: In his embarrassing recent “book” entitled The Case Against Impeaching Trump – which is mostly a collection of op-eds and transcripts of television interviews – Alan Dershowitz quotes, out of context, Blackstone’s general definitions of crimes and misdemeanors if this supported the proposition that, to be an impeachable, offense, an official’s act must be a “crime” in the ordinary criminal law sense. This is an elementary and almost ridiculous mistake. Blackstone’s treatment of impeachable “high crimes” and “high misdemeanors” is explicitly to the contrary. Dershowitz’s seemingly un-researched stance – that to fit within the category of “high Crimes and Misdemeanors,” conduct must be a literal criminal-law “crime” – is simply historically indefensible and intellectually irresponsible.