High Crimes and Misdemeanors

Can we talk?Can we talk

The dam has finally broken on legislators being willing to speak the dreaded “I” word – impeachment.

Thank you, Rep Paul Ray – the first to call for resignation and to Representative Spencer Cox, for outlining the impeachment process – and for stating unequivocally that it’s time to start.

However, there continues to be a tremendous amount of confusion about what the impeachment process IS and is NOT.

For example, if you ask most people – including legislators – to define “high crimes and misdemeanors” related to the impeachment process, you’d likely hear “criminal conviction,  “criminal charges” or even simply “criminal activity.”

All of them are wrong.

The term “high crimes and misdemeanors” is included in the Utah Constitution and appears to be taken directly from the US Constitution. “High crimes and misdemeanors” involves conduct that entails an abuse of power, or a serious breach of trust or some other behavior that demonstrates an official’s unsuitability for office – WHETHER THE CONDUCT IS CRIMINAL OR NOT. A recent analysis of the impeachment process by the federal Congressional Research Service summarized “high crimes and misdemeanors” this way:  “High crimes” was used to describe POLITICAL offenses to the state….The addition of the word “misdemeanors” suggests that civil officers may also be charged with “minor breaches of ethical conduct, misuse of power and neglect of duty, as well as more prolonged, egregious or financially rapacious misconduct.”

That analysis also relies on the Federalist Papers by Alexander Hamilton.

Federalist 65 addresses impeachment.
Mr Hamilton defines impeachment proceedings as being for those offenses

“which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” (emphasis in the original)

Mr. Hamilton spends a fair amount of time explaining why this is a legislative process and does not fall under the judicial branch. To avoid the “double-jeopardy” of being tried for the same offense twice, Mr Hamilton makes it clear that any person who had been through the entire impeachment process would “still be liable to prosecution and punishment in the ordinary course of law.”

In 2010, the Congressional Research Service summarized the role of the House of Representatives in impeachment proceedings. Except for a couple of very minor changes, Utah’s process is the same.

In their overview, the researchers offer the following summary:

The House of Representatives and the Senate determine who is removed. As both the President and Congress are subject to the will of the voters, the appointment and removal process is ultimately a political one.
This process is political in the originalist sense of the term, insofar as it is a remedy for “political” crimes against the body politic.

Addressing the question of whether the offense must be “criminally indictable” to be impeachable, the answer is no. Looking again at Federalist 65, the researchers found that “in the eyes of the Framers, a civil officer may be properly impeached for non-indictable conduct that violates the public trust.
The history of impeachments in the United States reflects the view that non-indictable conduct may constitute an impeachable offense.”

They also clarified further:

An impeachment trial…stands wholly separate from a criminal proceeding. Neither impeachment by the House nor conviction by the Senate precludes criminal indictment or conviction on charges related to crimes for which [an officer] was impeached. As a political process, impeachment and conviction as delineated in the Constitution seek to protect the integrity of American political and judicial institutions.
Criminal proceedings and impeachment serve fundamentally different purposes: the former is designed to punish an offender and seek retribution, while the latter is the first step in a remedial process. The purpose of impeachment is not personal punishment, but rather to maintain constitutional government through removal of unfit officials from positions of public trust.

In a separate report by the CRS, researchers reference a report by the US House that stated:

The constitutional “high Crimes and Misdemeanors” standard “refers to misconduct that damages the state and the operations of governmental institutions, and is not limited to criminal conduct.” In H.Rept. 100-810, the committee also drew attention to the noncriminal nature of impeachment, designed to remove the…officer involved in such misconduct from his or her office and to protect “our constitutional form of government from the depredations of those in high office who abuse or violate the public trust

I think it’s clear that the standard – and the process – for impeachment is quite different than a criminal trial. They are NOT tied together.

Isn’t it therefore more than a bit disconcerting to see continued public statements by the AG’s spokesman that “the AG has nothing impeachable. He has committed no crime while in office.” The question of impeachability is up to the House to decide, then to the Senate to debate removal from office.  The question of criminality will be left to the courts to decide. It has no bearing on impeachment proceedings.

If I were a legislator right now, I’d be pretty ticked at the deliberate obfuscation and misleading statements coming from the AG’s office. It’s not honest, it’s not ethical and it is unfair to legislators and the public to pretend that impeachment is not possible without a criminal conviction.

You might have noticed, there has not been a single mention by the AG or his spokesman about the glaring breach of public trust – and that breach is absolutely impeachable.



  1. The Governor and other State and Judicial officers shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office

    A company hires a catering company to provide drinks and food for a retirement party. If the catering company doesn’t show up, it’s considered nonfeasance. If the catering company shows up but only provides drinks (and not the food, which was also paid for), it’s considered misfeasance. If the catering company accepts a bribe from its client’s competitor to undercook the meat, thereby giving those present food poisoning, it’s considered malfeasance.

    —Daugherty v. Ellis, 142 W. Va. 340, 357-8, 97 S.E.2d 33, 42-3 (W. Va. 1956) (internal citations omitted).

    The court then went on to use yet another definition, “malfeasance is the doing of an act which an officer had no legal right to do at all and that when an officer, through ignorance, inattention, or malice, does that which they have no legal right to do at all, or acts without any authority whatsoever, or exceeds, ignores, or abuses their powers, they are guilty of malfeasance.”


    • So, Fred, let’s now apply that. John Swallow had no authority to establish contact with Aaron Christner, the subject of his client’s investigations and action without conveying the substance of that contact to his client and consulting with his client about the appropriate action to take regarding Christner. Without the legal right to have this contact out of consultation with his client, this would be, per your comment, malfeasance, no?

  2. Bonnie Fernandez says:

    Thanks, Holly, for the reminders and clarifications which bring the remedies for our AG’s actions into crystal clear focus.

  3. Good post, Holly.

    Ultimately, I think that attempts to define “high crimes, misdemeanors, or malfeasance in office” are generally unproductive. Taken together, these phrases appear to be a catch-all for an offense that society deems significantly damaging to justify impeachment. An impeachment does nothing more than make it clear that there has been a public determination that an elected official has broken his or her oath of office with conduct (whether by act or omission) that violates the public trust.


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  2. […] you might recall, “High crimes and misdemeanors” does NOT equal criminal activity. In fact, an impeachable offense – or pattern of […]

  3. […] suspect that AG John Swallow will continue to resist the investigation into allegations of high crimes, misdemeanors and malfeasance on his part, right up until the bitter […]