That is because “high crimes and misdemeanors,” a term of art the Framers borrowed from British law, does not refer to penal statutes defining what we commonly think of as crimes and misdemeanors. They are, as Hamilton put it, the “political wrongs of public men”—breaches of fiduciary duty by high officials in whom great public trust is reposed. The concept is much more resonant of the military code of justice than penal laws, embracing such offenses as dereliction of duty (such as a commander-in-chief who replenishes Taliban enemy forces in wartime) and the violation of an oath (such as the oath to preserve the Constitution and faithfully execute the laws).
On that score, former Attorney General Michael Mukasey gave a great explanation of impeachable offenses in an interview on Fox News Sunday with Chris Wallace. I wish I had thought of it myself. Judge Mukasey pointed out that the Constitution gives presidents an unreviewable, absolute pardon power. Thus, he explained, if the president suddenly decided to pardon, or commute to time-served the sentences of, every single convicted prisoner in federal custody, he would have violated no law in doing so. He would, however, be guilty of a massive abuse of power—what the Framers would have called maladministration on a shocking scale. He would not have committed a crime; but he would surely have committed a high crime and misdemeanor.
As it happens and as I argue in Faithless Execution, President Obama violates—and unilaterally amends, and selectively enforces, and purports to “waive,” and ignores—many federal laws. But his real offenses are dereliction of duty, the violation of his oath, and his comprehensive attack on our constitutional framework. It may be unlikely that the public will for his removal from power will ever be strong enough to command the votes of 67 United States senators. But it is essential to the future of our republic—if we are to remain a republic of laws, not men—that we recreate the political conditions in which there is a steep price to be paid for presidential lawlessness. That is my modest goal.