Why the Founders Added ‘High Crimes and Misdemeanors’
In defining the scope of impeachment, they had in mind the alleged crimes of Warren Hastings.
What is an impeachable offense? When the Constitution’s Framers needed to set the scope for unacceptable misconduct in office, they relied on a one-word shorthand: Hastings. As the Federal Convention of 1787 debated language subjecting the president to impeachment “for treason and bribery,” George Mason objected that the narrowness of those terms would excuse some of the worst criminals: “Treason … will not reach many great and dangerous offenses. Hastings is not guilty of treason.” Warren Hastings was guilty of something else; something, by implication, that ought to be covered, too. Arriving at “high crimes and misdemeanors” took some further argument, but none of the Framers disputed the aptness of the example that helped them get there. Impeachment had to make room for a Hastings.
Hastings was the first British governor-general in India, and as the Convention met in Philadelphia, he was arguably the world’s most infamous man. Five months after the Constitution was signed, on the other side of the Atlantic, he went on trial before the House of Lords. The proceedings would last for more than seven years and end in his overwhelming acquittal. Hastings—a consummate imperial bureaucrat—did not look the part of a villain, a fact conceded by the lead prosecutor: “We never compared Mr. Hastings to a Lion or a Tyger; we have compared him to a Rat or a Weasel.” Nevertheless, the charges against him were severe: “Acts of Oppression” against the Indian people, extortionate revenue extraction, seizure of Indians’ private property, financial corruption.
At its outset, the Hastings trial dominated the attention of the political establishment because it was the era’s most serious internal challenge to the conduct of British imperialism. It was the most consequential impeachment trial in Anglo-American politics (and still is, with the possible exception of Andrew Johnson’s), and it was conducted in a setting to match, the cavernous, medieval Westminster Hall. Tickets are said to have sold for as much as £50, the equivalent of more than $9,000 today. To the more reflective spectators, the Hastings impeachment mattered because the empire was on trial; to the rest, it was simply the show of the season.
For Americans in 2019, with impeachment still a live issue, the trial ought to matter for another reason, because of the man who, along with Hastings, stood at its center: the lead prosecutor, Edmund Burke. Burke is the rare political thinker to have both theorized about impeachment and participated in one. The questions that he pursued through his prosecution of Hastings—Is impeachment a political deliberation or a judicial trial? What purposes should an impeachment accomplish? What is the right standard of guilt?—are still questions that occupy Americans today.
Of course, Burke can’t tell us whether or not to impeach President Donald Trump. But his example is especially valuable because he leads us beyond the standard domestic arguments about impeachment—which usually turn on the precise meaning of “high crimes and misdemeanors”—to reflect more broadly on its purpose.
Impeachment is a hybrid process, legal and political at the same time. It takes the form of an indictment followed by a trial—but a trial in which the accused, the prosecutors, and the judges are all politicians. While these two aspects are in tension in any impeachment, Burke repeatedly demanded that the emphasis be placed on the political: Impeachment, he insisted, is a trial “tried before Statesmen and by Statesmen, upon solid principles of State morality.” Proof of “misconduct in Office” was sufficient for conviction, and if this standard necessarily invited moral argumentation—less tidy than the letter of the law—that was all to the good. As Burke told the court, we have “the principles of honour, the spirit of cavaliers to govern here; not the low principles of jurisprudence only.”
By contrast, Hastings and his lawyers demanded that the impeachment be conducted as a criminal proceeding. Departing from the model of a common-law trial, argued one of his parliamentary supporters, would replace impartial standards with electoral head-counting, “according to the strength of the party prosecuting or defending.”
That prospect did not especially trouble Burke, who stressed impeachment’s origins as a means for asserting parliamentary control over crown appointees such as Hastings. But his reasons for emphasizing the political nature of impeachment went deeper.
For the classically educated Burke, the difference between impeachment’s legal and political aspects tracked onto the distinction between the two main forms of rhetoric: judicial and deliberative. Following a long tradition, Burke held that these are not simply two kinds of speech that happen in different forums, but two distinct ways of reasoning together in public. Judicial rhetoric is oriented toward the past actions of the accused; deliberative rhetoric is oriented toward future events that directly concern the people deliberating. In a judicial impeachment, the guiding question would be, “Did Hastings break the law?” In a deliberative impeachment, it would be, “What are the likely consequences of convicting Hastings for the empire and its people?”
To Burke, these were not morally interchangeable questions. He followed Aristotle in considering deliberative rhetoric “nobler and more worthy of a citizen.” He thought that legislatures could sometimes rise to the challenge of deliberative thinking, but that they were constantly tempted to fall into the rote, narrow, and unimaginative confines of legalism. In a speech on India four years before the start of the trial, Burke complained, “It has been a little painful to me to observe the intrusion into this important debate of such company as quo warranto, and mandamus, and certiorari: as if we were on a trial about mayors and aldermen and capital burgesses … matter of the lowest and meanest litigation.” Legal reasoning was useful in its own sphere. Beyond that, it threatened to “degrade the majesty of this grave deliberation of policy and empire.”
In the Hastings trial, Burke repeatedly pressed and repeatedly lost this argument—not least because the members of the House of Lords who sat in judgment followed the lead of the professional judges among their number. Questions to witnesses on Indians’ opinions of Hastings’s administration, on whether Hastings’s methods of tax collection produced “more evil, or less evil” for India, and on whether the precedent of his acquittal would “let loose rapine and spoil upon the subjects of government” were all ruled out of order. Under a legal model of impeachment, those rulings were all defensible. But Burke was also reasonable to believe that their exclusion did in fact “degrade” the trial.
What was lost under the judicial model was not simply evidence, but a quality of public thinking—a quality that Burke referred to as “enlargement” or “expansion.” Above all, this was a way of seeing events in their proper moral proportions. “If … we do not stretch and expand our minds to the compass of their object,” Burke warned in a 1785 speech denouncing the East India Company, “be well assured that everything about us will dwindle by degrees, until at length our concerns are shrunk to the dimensions of our minds.”
Hastings could only survive the impeachment, Burke insisted, by shrinking the concerns at stake. This is precisely what Burke accused the defense of doing, contrasting his graphic narrations of imperial crimes with Hastings’s “technical Subtilties” and legalese. Burke believed that the register of language mattered profoundly, because moral outrage is the correct response to certain crimes, and because the dry jargon of the courtroom can divorce the passions from the work of judgment.
Such jargon, Burke conceded, had its place, places such as “Penryn, or Saltash, or St. Ives, or St. Mawes,” provincial English towns where ordinary disputes were resolved with comfortable procedures. But the crimes of which Hastings stood accused were not ordinary, and Burke seemed to fear that transposing them into the usual proceedings and phrasings of English law would make them appear ordinary, and that they would in time become ordinary. Routine procedures, in this view, routinize outrages.
If impeachment is truly a political deliberation, then it follows that a legitimate aim of an impeachment trial is moving public opinion—even if a conviction is unlikely. Burke was under no illusions here. As early as 1785, three years before the start of the trial, he referred to Hastings’s conviction as “a thing we all know to be impracticable,” particularly because the political class was effectively “bribed” into complicity by its financial stake in the empire. The trial had to be a public spectacle in order to overcome that dynamic; it might force the reform of the empire even if Hastings escaped. To that end, Burke—probably best known for his attacks on the revolutionaries of Paris—confessed to friends his readiness to “work upon the popular Sense” and even to be “mobbish.” Here, too, the results failed to meet his expectations. Thanks to the court’s infrequent sittings, the trial limped year after year into the kind of routine afterthought that Burke had feared. By the time a verdict was reached, in April 1795, interest and outrage had dimmed, and Hastings’s acquittal was a foregone conclusion.
Although the specific circumstances that led Burke to launch the prosecution, and that led it to fail, are long gone, Burke’s broader arguments about impeachment have outlasted them. Above all, those arguments suggest that the terms in which we conduct the debate matter. Maybe this moment calls less for parsing of the Emoluments Clause than for the sort of fuzzy but urgent language that peppers Burke’s contributions to the Hastings trial: “the principles of honour,” the “great, immutable, pre-existent law,” the “justice … which will stand after this globe is burned to ashes.” If impeachment is a grave deliberation in which such sentiments are welcome, and indeed required, then any case against Trump should center on his cruelty and unfitness for office. And yet, for Burke, impeachment was not simply an effort to expose one man’s bad qualities. Rather, it was the result of a political calculation—that exposing those qualities would shape public perception of the system under which such a man had come to accumulate such power.
There is one point, moreover, on which Burke’s example speaks quite directly to our time. These days, Edmund Burke is still used to signify the wish for a more genteel, intellectual, bowties-and-tweed-jackets version of conservatism.
That picture certainly carries some truth: Burke really was committed to gradualism, tradition, and other small-c conservative values. Britain’s actions in India angered him so much, in part, because he idealized India as an ancient and hierarchical society. At the same time, his conduct in the Hastings trial was hugely disruptive. He revived the dormant procedure of impeachment and loudly challenged the dominant understanding of how an impeachment ought to happen. He used “mobbish” tactics to publicize the abuse of power and threatened the empire’s business as usual. His sought-after outcome, in which the House of Lords accepted a role as arbiter of “Imperial justice,” would have required (in the words of a recent historian) “a fundamental realignment of the highest political institutions in England.” None of this was remotely conservative.
Burke’s conservatism was real. But it was also conditional. And he was willing to put it on hold, and turn to a far more destabilizing brand of politics, in the face of grave human suffering.
I happened to be reading the records of the Hastings trial in July, when Vice President Mike Pence toured a migrant detention center in McAllen, Texas. A reporter on the scene tweeted, “VP saw 384 men sleeping inside fences, on concrete w/no pillows or mats. They said they hadn’t showered in weeks, wanted toothbrushes, food. Stench was overwhelming.” At the press conference after his tour, Pence said, “Look, this is tough stuff,” and blamed Congress. I thought of Burke—who never saw India, did not associate with Indians, did not speak their languages or practice their faiths—and of the letter he wrote to a friend before setting out on the seven-year trial: “I know what I am doing; whether the white people like it or not.”