In 1787, a few days before they finished writing the Constitution, the men working on it stumbled on an unresolved question: Under what circumstances should Congress be able to impeach the President? No doubt tired of parsing legalisms after months of work, they took only about five minutes to dispense with the constitutional crisis. They had already decided that treason and bribery were no-brainers--definitely grounds for impeachment--but George Mason of Virginia said he was concerned that those two crimes didn't capture "many great and dangerous offenses." So he suggested adding "maladministration" to the list of impeachable no-nos. When others complained that the term was too vague, he offered this legal delicacy: "other high crimes and misdemeanors."

It was a brilliant little piece of 18th century spin. The fusty phrase carried the weight of history even back then: it had been around since at least 1386, when Members of Parliament used it to describe the financial shenanigans of one Michael de la Pool. The phrase seemed to combine the right measure of breadth and gravity--not just any crimes, but the "high" ones. A quick vote was taken, the phrase was accepted, and now the President's fate rests on it.

The 18th century may have been a time when English common law was studied and revered, but at the end of the 20th, we're more familiar with TV's Judge Judy than with James Madison. "High crimes and misdemeanors" sounds like it could mean anything, from murder to jaywalking. And here's the rub--Mason's dirty little secret--it could mean anything. The Constitution gives the House of Representatives sole authority to decide what constitutes grounds for impeachment. That's why President Andrew Johnson was impeached in 1868, when a nasty political dispute got out of hand. (The Senate failed by a vote to convict him, and he stayed in office.)

PAGE 1  |  PAGE 2