“High,” in the legal and common parlance of the 17th and 18th centuries of “high crimes,” is activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons.[6] A high crime is one that can be done only by someone in a unique position of authority, which is political in character, who does things to circumvent justice. The phrase “high crimes and misdemeanors,” used together, was a common phrase when the U.S. Constitution was written and did not require any stringent or difficult criteria for determining guilt but meant the opposite. The phrase was historically used to cover a very broad range of crimes.
The Judiciary Committee’s 1974 report “The Historical Origins of Impeachment” stated: "‘High Crimes and Misdemeanors’ has traditionally been considered a ‘term of art’, like such other constitutional phrases as ‘levying war’ and ‘due process.’ The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the framers meant when they adopted them. For example, Chief Justice John Marshall when writing about the phrase “levying war” said, “It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.”[7][8]
Since 1386, the English parliament had used the term “high crimes and misdemeanors” to describe one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery.[9] Some of these charges were crimes. Others were not.[citation needed] They can be thought of as serious cases of power abuse or dereliction of duty, without a requirement for these cases to be explicitly against the law.
Benjamin Franklin asserted that the power of impeachment and removal was necessary for those times when the Executive “rendered himself obnoxious,” and the Constitution should provide for the “regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused.” James Madison said that “impeachment… was indispensable” to defend the community against “the incapacity, negligence or perfidy of the chief Magistrate.” With a single executive, Madison argued, unlike a legislature whose collective nature provided security, “loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.”
The process of impeaching someone in the House of Representatives and convicting in the Senate is difficult, made so to be the balance against efforts to easily remove people from office for minor reasons that could easily be determined by the standard of “high crimes and misdemeanors”. It was George Mason who offered up the term “high crimes and misdemeanors” as one of the criteria to remove public officials who abuse their office. Their original intentions can be gleaned by the phrases and words that were proposed before, such as “high misdemeanor,” “maladministration,” or “other crime.” Edmund Randolph said impeachment should be reserved for those who “misbehave.” Charles Cotesworth Pinckney said, It should be reserved “for those who behave amiss, or betray their public trust.” As can be seen from all these references to “high crimes and misdemeanors,” the definition or its rationale does not relate to specific offences. This gives a lot of freedom of interpretation to the House of Representatives and the Senate. The constitutional law by nature is not concerned with being specific. The courts through precedence and the legislature through lawmaking make constitutional provisions specific. In this case the legislature (the House of Representatives and the Senate) acts as a court and can create a precedent.
In Federalist No. 65, Alexander Hamilton said, “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
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