Public Office as a Public Trust: A Suggestion That Impeachment for High Crimes and Misdemeanors Implies a Fiduciary Standard
![handle is hein.journals/glj63 and id is 1039 raw text is: PUBLIC OFFICE AS A PUBLIC TRUST: A
SUGGESTION THAT IMPEACHMENT FOR HIGH
CRIMES AND MISDEMEANORS IMPLIES A
FIDUCIARY STANDARD *
E. MABRY ROGERS** AND STEPHEN B. YOUNG*
The Constitution defines impeachable conduct as Treason, Bribery
or other high Crimes and Misdemeanors,' but considerable uncer-
tainty exists as to what specific kinds of official misconduct the framers
intended to proscribe by use of the phrase high crimes and misde-
meanors.2 This article offers the concept of breach of public trust
as a definition of high Crimes and Misdemeanors. That definition
best describes the impeachable offenses contemplated by the framers
and best implements the constitutional arrangement of limited and
delegated governmental powers. Such a concept also recognizes the
historical, philosophical, and conceptual influences that led the con-
stitutional framers to adopt the high Crimes and Misdemeanors lan-
guage and succinctly defines the standard employed by courts and
Congress in deciding cases of impeachment.
INFLUENCES ON THE CONSTITUTION'S FRAMERS
ENGLISH POLITICAL THEORY
The framers of the federal Constitution relied to a great extent on
the Radical Whig tradition in English politics,3 including the writings
of John Locke, the most philosophical of the Whig political theorists.
The Whigs rejected absolute monarchy as intolerable and felt that a
Constitution must form the basis of any properly organized society.
Under a constitution that would replace the unregulated will of one
o A prior version of this article was presented to the Minority and Majority staffs
and to various Members of the House Committee on the Judiciary in July, 1974.
** Law Clerk to Judge Seybourn H. Lynne, United States District Court, N.D. Ala.;
B.A., Yale Univ., 1969; J.D., Harvard Univ., 1974.
*** Attorney, Simpson, Thacher & Bartlett; A.B., Harvard College, 1967; J.D.,
Harvard Univ., 1974.
1. U.S. CONsT. art. II, § 4.
2. See, e.g., R. BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 53-102
(1973); Berger, The President, Congress, and the Courts, 83 YALE L.J. 1111, 1137-55
(1974); Kurland, The Constitution and the Tenure of Federal Judges: Some Notes
from History, 36 U. CHI. L. REV. 665, 668 (1969).
3. See G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 14,
15 (1969). See generally B. BAILYN, IDEOLOCICAL ORIGINS OF THE AMERICAN REVOLU-
TION 22-54 (1967).
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Public Office as a Public Trust: A Suggestion That Impeachment for High Crimes and Misdemeanors Implies a Fiduciary Standard
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