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that might be freeper-friendly: http://www.constitution.org/cmt/high_crimes.htmMeaning of "High Crimes and Misdemeanors" by Jon Roland, Constitution Society 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.
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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. http://writ.news.findlaw.com/dean/20061215.htmlRefocusing the Impeachment Movement on Administration Officials Below the President and Vice-President: Why Not Have A Realistic Debate, with Charges that Could Actually Result in Convictions? By JOHN W. DEAN ---- Friday, Dec. 15, 2006 There is a well-organized and growing movement to impeach President Bush and/or Vice President Cheney. On my bookshelf sit half a dozen books making the case for Bush's impeachment. I myself have no doubt that Bush has, in fact, committed impeachable offenses, and that for each Bush "high crime and misdemeanor," Cheney's culpability is ten or twenty times greater.
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There Is No Chance Either Bush or Cheney Will Be Removed From OfficeThe Republican Congress shamed itself when it impeached and tried President William Jefferson Clinton. It was a repeat of what an earlier Republican Congress had done to President Andrew Johnson, following the Civil War. Both proceedings were politics at their ugliest. Democrats, when they undertook to impeach Richard Nixon, moved very slowly, building bipartisan support for the undertaking. Nixon, of course, resigned, when it became apparent that the House had the votes to impeach and the Senate had the votes to convict, with his removal supported by Democrats and Republicans, and conservatives and liberals alike.
Getting the necessary two-thirds supermajority in support of impeachment in today's Senate, which is virtually evenly-divided politically, is simply not possible. With forty-nine senators of the 110th Congress members in good standing with the Republican Party, and most of them rock-ribbed conservatives, even if the House produced evidence of Cheney personally water-boarding "Gitmo" detainees in the basement of his home at the Naval Observatory, with Bush looking on approvingly, there are more than thirty-three GOP Senators who still would not vote to convict. (Senate Republicans who have no problem with torture, or with removing the right to habeas corpus, and who refused to exercise any oversight whatsoever of Bush or Cheney, are hardly going to remove these men for actions in which they too are complicit.)
Pelosi and Reid have long understood this reality, and rather than do to Bush and/or Cheney what Republicans did to Clinton - impeach him in the House merely because they had the power to do so and they wanted to tarnish him, only to lose their battle decisively in the Senate - they are simply not going to play the same game. Politically, this is smart. Americans do not want another impeachment, particularly when Bush and Cheney will be out of office in January 2009.
Article 2, Section 4--". . .on impeachment for, and on conviction of, treason, bribery, or other high crimes or misdemeanors."
This implies that the impeachment process is not tightly linked to the criminal law. The test is not satisfied by all crimes. With only two named offenses to provide context for the inclusive phrase "high crimes and misdemeanors," the standard remains undefined. The language suggests, however, that criminal action may be required. It is worth noting that the term "misdemeanor" does not correspond to the modern definition of a less serious (sub-felony) statutory or common law criminal offense.
In the case of Andrew Johnson, the House accused the President, among other things, of speaking disrespectfully of Congress "in a loud voice."
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Article 1, Section 3, Clause 7--"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."
An impeachment and removal does not activate the double jeopardy clause of the Fifth Amendment. The ex-officer may face criminal indictments and trials for the same conduct that led to their impeachment and removal from office.
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