Impeachment Can Be Based on Non-Criminal Misconduct: Corpus-Linguistic and Historical Evidence

Publication Title

Kentucky Law Journal

Document Type

Article

Publication Date

2025

Abstract

Whether the power of impeachment extends to non-criminal misconduct has been a perennial question in American constitutional history. As Laurence Tribe observed in a recent co-authored book on presidential impeachment: "Few terms in constitutional law have been so fiercely contested as 'high crimes and misdemeanors." Although most legal scholars agree with Tribe's conclusion that this phrase does not limit impeachment to criminal conduct, reconciling this conclusion with the constitutional text has been a challenge. As one of the legal academy's leading experts on impeachment, Frank Bowman, concedes: "[taken at face value, the words [high crimes and misdemeanors] seem to say that impeachable conduct is limited to 'crimes'-- offenses defined by criminal statutes and punishable in criminal courts."

In this Article, co-authored by a law professor and a linguistics professor, we offer what we believe is a new and persuasive approach that arises directly from the constitutional text itself for extending the scope of impeachment to non-criminal conduct. We reach this conclusion by applying the science of linguistics to a computer-assisted review of digitized texts written around the period when the Constitution was drafted and ratified. The result of this empirical research is the proposal that "other high crimes and misdemeanors" in the constitutional text should be interpreted as "other high crimes" and "other high misdemeanors." Our linguistic analysis further establishes that "high misdemeanor" was a phrase used during the Founding Era to refer to non-criminal misconduct that requires removal from office. We corroborate this analysis with historical research showing that for more than 130 years following the Founding Era, the U.S. House of Representatives recurrently enacted articles of impeachment using the term "high misdemeanor" to refer to non-criminal misconduct affecting governance.

Comments

westlaw

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Recommended Citation

Clark D. Cunningham & Ute Römer-Barron, Impeachment Can Be Based on Non-Criminal Misconduct: Corpus-Linguistic and Historical Evidence, 113 Ky. L.J. 847 (2024–2025).

Volume

113

First Page

845

Last Page

884

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