Podcast Summary: Amicus With Dahlia Lithwick – "High Crimes and Misdemeanors"

Date: July 6, 2019
Host: Dahlia Lithwick
Guest: Frank O. Bowman III, Professor of Law, University of Missouri
Main Theme:
An in-depth examination of impeachment in the American political system, the historical and constitutional origins of “high crimes and misdemeanors,” and how impeachment functions as both a legal and political tool—particularly in the age of Trump.

Episode Overview

Dahlia Lithwick interviews Frank Bowman about his book, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. The episode explores impeachment’s British roots, the evolution of its definition, its application in American history, and the relevance of these lessons today. The conversation is timely, reflecting on recent calls for President Trump’s impeachment and the broader implications for American constitutional governance.

Key Discussion Points & Insights

1. Origins of Impeachment and the Phrase “High Crimes and Misdemeanors”

(03:13–07:00)

• Impeachment is a British invention—used as a mechanism by Parliament to curb the power of the monarchy, particularly by removing the King's ministers (not the monarch).
• The process and terminology were adopted by the American framers, but with significant modifications:
  • No harsh penalties like beheading; just removal and possible disqualification from future office.
• Notably:

  “High crimes and misdemeanors is not a phrase you can take apart word by word. And most importantly, it doesn't mean what you think it means.” — Frank Bowman (00:05; repeated at 07:49)

2. Defining "High Crimes and Misdemeanors"

(07:00–10:13)

• The phrase is not limited to indictable, criminal acts; it encompasses broad political misconduct:
  • Subverting the rule of law, abuse of power, corruption, gross dishonesty, political misconduct.
• Memorable Quote:

  “High crimes and misdemeanors has always included lots and lots of behavior that isn't criminal... What it means is offenses against the society and its political character, serious efforts to undermine the constitutional order.” — Frank Bowman (07:49)

3. American Adoption and Adaptation of Impeachment

(10:13–15:45)

• Colonies practiced impeachment, notably the 1774 Massachusetts case against Judge Peter Oliver for accepting a royal salary.
• The Oliver impeachment illustrated that impeachment was inherently political—a tool used to maintain checks and balances, even if unsuccessful in removing an official.
• Lessons from these colonial actions directly influenced the Constitution’s framers.

  “Sometimes ineffective impeachments... can be politically effective in establishing certain principles and indicating to the executive authority that it’s stepped over and it’s gone too far.” — Frank Bowman (13:49)

4. The Framers’ Rationale for Including Impeachment

(15:45–19:45)

• Although moving away from monarchy, the framers still worried about abuse of executive power with a four-year presidential term—a relatively long time in the context of the era.
• Impeachment was seen as a mechanism for removing dangerously unfit or tyrannical presidents.

5. Judicial Branch and the Role of Courts in Impeachment

(19:45–22:19)

• The Judiciary has almost no role in impeachment; it is explicitly a political process. The Chief Justice's role in Senate trials is largely ceremonial.
• There is no constitutional basis or historical precedent for court review of impeachment decisions.

6. Original Understanding and Purpose

(22:19–25:59)

• The framers, particularly George Mason and James Madison, deliberately adopted the British conception of "high crimes and misdemeanors"—offenses threatening the constitutional order, not merely criminal acts.
• Federalist 65 (Alexander Hamilton) is cited to support the view of impeachment as a remedy for “offenses which are, in their nature, political.”

7. Impeachment of Judges and the Samuel Chase Case

(27:10–31:15)

• The 1804 impeachment of Supreme Court Justice Samuel Chase failed, but established that intemperate or partisan behavior was insufficient for removal.
• Most successful impeachments have targeted lower court judges, rarely Supreme Court justices.

  “The unsuccessful Chase impeachment, I think, established or at least helped establish a norm of judicial behavior that has endured pretty consistently since.” — Frank Bowman (31:15)

8. Lessons and Myths from Presidential Impeachments

(32:00–34:58)

• While impeachment was meant to be easier in America (limited punishments), the two-thirds Senate requirement introduced significant procedural difficulty.
• In today’s polarized environment, impeachment may now be functionally impossible, though that was not the framers’ intention.

9. Historical Anecdotes: Andrew Johnson Impeachment

(35:13–37:54)

• Johnson survived impeachment by one vote, largely due to dislike of his likely successor and proximity to the next election—parallels to contemporary concerns.

  “It was often said at the time that Johnson survived impeachment primarily because people didn’t want Ben Wade to be president, not because they liked Andrew Johnson very much.” — Frank Bowman (36:35)

10. The Role of the Press and Partisan Polarization

(37:54–42:07)

• Watergate’s outcome was shaped by a shared media environment that educated the public and fostered bipartisan cooperation.

• The current fractured media landscape and hyper-partisanship make it harder to build the consensus necessary for successful impeachment.

  “In the current environment, it’s not clear to me that it’s even possible to achieve sort of general consensus on what the facts are, much less their constitutional consequence. […] That prospect just frightens me to death. Because if I’m right about that, then we are closer to losing the Republic than we think.” — Frank Bowman (45:31)

11. Why "Treason and Bribery" Are Specifically Named

(47:20–49:29)

• Treason and bribery were among the most common charges in Britain but were narrowly defined in the Constitution to prevent overreach.
• George Mason’s dissatisfaction with the narrow phrasing led to inclusion of "high crimes and misdemeanors," a term with broad historical meaning.

12. Contemporary Application: Should President Trump Be Impeached?

(51:06–55:53)

• Bowman argues that by every historical, constitutional, and practical metric, President Trump’s conduct clearly qualifies as impeachable—at minimum for obstruction of justice and blanket resistance to congressional oversight.

• Beyond specific acts, commencing an impeachment inquiry is crucial for its educative function—forcing a national conversation about constitutional norms and executive accountability.

  “One of the roles of impeachment has always been educational...defining impeachments not only remove miscreants, they also inevitably involve conversations about what we think the Constitution means and how the branches should relate to each other...” — Frank Bowman (54:23)

Notable Quotes & Memorable Moments

• “High crimes and misdemeanors is not a phrase you can take apart word by word. And most importantly, it doesn't mean what you think it means.”
  — Frank Bowman (00:05, 07:49)

• “High crimes and misdemeanors has always included lots and lots and lots of behavior that isn’t criminal... What it means is offenses against the society and its political character, serious efforts to undermine the constitutional order.”
  — Frank Bowman (07:49)

• “Sometimes ineffective impeachments… can be politically effective in establishing certain principles and indicating to the executive authority that it’s stepped over and it’s gone too far.”
  — Frank Bowman (13:49)

• “The unsuccessful Chase impeachment, I think, established or at least helped establish a norm of judicial behavior that has endured pretty consistently since.”
  — Frank Bowman (31:15)

• “In the current environment, it’s not clear to me that it’s even possible to achieve sort of general consensus on what the facts are, much less their constitutional consequence.”
  — Frank Bowman (45:31)

• “If I’m right about that, then we are closer to losing the Republic than we think.”
  — Frank Bowman (46:15)

Key Timestamps

• 00:05: Introduction to "High Crimes and Misdemeanors"
• 03:13 – 07:00: British origins of impeachment
• 07:00 – 10:13: Defining the phrase and its true meaning
• 10:13 – 15:45: Colonial impeachment practices and their constitutional influence
• 15:45 – 19:45: The framers’ rationale and adaptation for the U.S. president
• 19:45 – 22:19: The judiciary’s ceremonial (not substantive) role in impeachment
• 22:19 – 25:59: Original understanding of "high crimes and misdemeanors"
• 27:10 – 31:15: The Samuel Chase impeachment and its legacy for judges
• 32:00 – 34:58: Lessons and difficulty of presidential impeachment
• 35:13 – 37:54: The Johnson impeachment and its political context
• 37:54 – 42:07: Role of media and party polarization (Watergate vs. today)
• 47:20 – 49:29: Why the Constitution singles out “treason and bribery”
• 51:06 – 55:53: Frank Bowman on Trump, the necessity of impeachment, and its educative function

Conclusion

Frank Bowman and Dahlia Lithwick deliver a thorough, historically grounded analysis of impeachment—clearing misconceptions, emphasizing its political and educational dimensions, and warning of the contemporary challenges posed by polarization and a fractured media environment. Bowman makes a compelling case for the enduring importance of impeachment and its necessity in times of potential executive overreach.

“It is troubling to me that for reasons that may make perfectly sound political sense...the House seems to be unable or unwilling even to open that conversation. […] That’s pretty darn disheartening.” — Frank Bowman (54:45)

For new listeners:
This episode contextualizes the constitutional meaning and history of impeachment, and why it matters today—even for those uninterested in day-to-day politics or legal arcana. Bowman’s insights serve as both a civics lesson and a timely commentary on the health of American democracy.