>>4593649

“It was in part due to these Midwestern rallies that the House of Representatives impeached President Johnson in 1868. Many congressmen saw President Johnson as an embarrassment, a threat to the Republic whose unprecedented insults were unpresidential. Invoking the Constitution’s lone provision for prematurely ending a President’s term, the House called for the Senate to convict President Johnson and remove him for committing “high crimes and misdemeanors.” Most of the eleven articles of impeachment the House drafted accused President Johnson of violating a criminal statute that prohibited him from removing certain cabinet officials, but two charged him with delivering such “intemperate, inflammatory, and scandalous harangues” that they rose to the level of high misdemeanors. One of these speech-related charges eventually became the focus of the subsequent impeachment trial and the first charge on which prosecutors asked the Senate to deliberate and vote.”

https://harvardlawreview.org/2018/12/high-crimes-without-law/

Saying mean things does not constitute “High Crimes and Misdemeanors”

>>4593943

So why did Benjamin Curtis, Dred Scott dissenter, agree to defend such a racist demagogue? In his opening argument before the Senate, Curtis explained that a greater principle than President Johnson or even the presidency was at stake. Then as now, there was an ongoing scholarly debate over the meaning of the phrase “high Crimes and Misdemeanors.”11× Most people, including a majority of the House of Representatives, interpreted the phrase to refer not to literal crimes or misdemeanors but to any serious abuses of presidential power.12× This interpretation remains the dominant one 150 years later. In the words of Professor Laurence Tribe and Joshua Matz, the majority view is that a president can legally be impeached for “intentional, evil deeds”13× that “drastically subvert the Constitution and involve an unforgivable abuse of the presidency” — even if those deeds didn’t violate any criminal laws.14×

But Curtis was not so convinced. Acknowledging that he was about to make an argument that had been rejected by most of the “learned dissertations” on the question of what should constitute an impeachable offense, Curtis thought the answer was actually pretty straightforward.15× An impeachment proceeding is a trial, Curtis began, in which the House brings charges of “high Crimes and Misdemeanors” and the Senate judges whether the defendant is guilty.16× It is a basic principle of impartial justice, Curtis continued, that a judge cannot declare something a crime or misdemeanor unless it was made so by some law at the time it was done.17× But in President Johnson’s case, there was no law outlawing scandalous speeches. The House had declared President Johnson’s conduct a high misdemeanor only in retrospect. As Curtis put it, these charges asked each senator to say, “if I cannot find a law I will make one.”18× And what Curtis was defending wasn’t President Johnson’s uncouth behavior but the principle of nullum crimen sine lege: “There can be no crime, there can be no misdemeanor without a law.”19×