There is and has been a lot in the media about impeachment.  A good part of the sound and fury signifying nothing comes from the constitutional text referring to “high crimes and misdemeanors.”  And part of that misunderstanding comes from using modern criminal justice terms to define an eighteenth century text.

Today, the general distinction between felonies and misdemeanors is based on the potential sentence — over one year for felonies and less than one year for misdemeanors (although some states draw different lines since each state is free under the Tenth Amendment to define those terms as they see fit).  But that one-year line tends to be used in federal enhancement statutes (those that increase the minimum or maximum sentence based on prior criminal history) to define what counts as a felony offense.   And there are a lot of “white collar” criminal offenses.

Originally, however, the distinction between a felony and a misdemeanor was whether the offense was a capital offense carrying the death penalty and confiscation of all of the offender’s property  (a felony) or an offense for which an alternative disposition was made (misdemeanor).   Out of twenty-two federal offenses created in the Crimes Act of 1790, seven carried the death penalty (in most cases a mandatory death penalty).   As such, the reference to high crimes and misdemeanors was really a broad statement of potential grounds for impeachment as it was highly unlikely that a public official would be guilty of a crime meriting the death penalty. Continue Reading...