“Treason, Bribery or other High Crimes and Misdemeanors”

[JAB]

The One Word Alan Dershowitz Gets Wrong in the Impeachment Clause

There’s a reason the Founders didn’t just end it at “high crimes.”
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Trump’s defense team seems to take the phrase “Treason, Bribery or
other High Crimes and Misdemeanors” to mean that a president can be
impeached for very serious crimes or less serious crimes. In any case,
crimes. Such an interpretation reflects the modern meaning of
“misdemeanor” as a petty offense that carries a lesser potential
punishment than a felony. But why would the drafters of the
Constitution stipulate that impeachment requires commission of a
“high” crime if a president could also be removed for the lower bar of
a petty crime? The answer may be that “misdemeanor” in the impeachment
clause doesn’t refer to any kind of crime.

According to the Oxford English Dictionary, the oldest meaning of
“misdemeanor” is “misconduct.” My review of a very large online
database of texts from when the Constitution was drafted and ratified
indicates that “misdemeanor” was used both in the sense of “petty
crime” and “misconduct,” or “misbehavior,” in the Founding Era.

A 1773 newspaper excerpt from the papers of John Adams contains this
quote: “If an office be granted to hold so long as he behaves himself
well in the office, that is an estate for life, unless he lose it for
misbehaviour; for it hath an annexed condition to be forfeited upon
misdemeanor, and this by law is annexed to all offices, they being
trusts; and misdemeanors in an office is a breach of trust.” (Emphases
added.) A 1796 state court decision from South Carolina stated that a
judge “is liable for misdemeanors in office, and subject to
impeachment for misconduct if he misbehaved.” Notably, both of these
examples—in which “misdemeanor” was used interchangeably with
“misconduct” or “misbehavior”—refer to removing a public official for
cause without any reference to commission of a crime.

https://www.politico.com/news/magazine/2020/01/24/dershowitz-misdemeanors-high-crimes-impeachment-constitution-104073