Trump’s defense team seems to take the phrase “Treason, Bribery or other High Crimes and Misdemeanors” to mean that a president can be impeached for very serious crimes or less serious crimes. In any case, crimes. Such an interpretation reflects the modern meaning of “misdemeanor” as a petty offense that carries a lesser potential punishment than a felony. But why would the drafters of the Constitution stipulate that impeachment requires commission of a “high” crime if a president could also be removed for the lower bar of a petty crime? The answer may be that “misdemeanor” in the impeachment clause doesn’t refer to any kind of crime.

According to the Oxford English Dictionary, the oldest meaning of “misdemeanor” is “misconduct.” My review of a very large online database of texts from when the Constitution was drafted and ratified indicates that “misdemeanor” was used both in the sense of “petty crime” and “misconduct,” or “misbehavior,” in the Founding Era.

A 1773 newspaper excerpt from the papers of John Adams contains this quote: “If an office be granted to hold so long as he behaves himself well in the office, that is an estate for life, unless he lose it for misbehaviour; for it hath an annexed condition to be forfeited upon misdemeanor, and this by law is annexed to all offices, they being trusts; and misdemeanors in an office is a breach of trust.” (Emphases added.) A 1796 state court decision from South Carolina stated that a judge “is liable for misdemeanors in office, and subject to impeachment for misconduct if he misbehaved.” Notably, both of these examples—in which “misdemeanor” was used interchangeably with “misconduct” or “misbehavior”—refer to removing a public official for cause without any reference to commission of a crime.

In addition, both before and after ratification of the Constitution, state constitutions authorized removal from office using the word “misdemeanor,” again without reference to commission of a crime. The 1776 Constitution of Maryland provided that “the House of Delegates … may expel any member, for a great misdemeanor.” The 1790 Pennsylvania Constitution had an impeachment clause that tracked the U.S. Constitution’s almost word-for-word except that the list of impeachable offenses for state officials is shortened to only misdemeanor: “The governor, and all other civil officers under this commonwealth, shall be liable to impeachment for any misdemeanor in office.” The 1792 Kentucky Constitution had an impeachment provision virtually identical to that of Pennsylvania.

The proceedings of the Constitutional Convention strongly indicate that one of the most influential framers of the Constitution, James Madison, understood “misdemeanor” as having a different and broader meaning than criminal acts. In the waning days of the convention, on September 8, 1787, Virginia delegate George Mason moved to add “maladministration” to the existing list of impeachable offenses—at that point, only “Treason or Bribery.” Madison objected that “so vague a term [as maladministration] will be equivalent to a tenure during pleasure of the Senate.” Mason responded by withdrawing his motion and substituting “other high crimes and misdemeanors against the state.” Mason’s revised motion passed 8-3, which is how the “high crimes and misdemeanors” language got into to the Constitution.

The Trump defense team has seized on Mason’s substitution of “high crimes and misdemeanors” for “maladministration” as supporting its contention that impeachment must be based on commission of a crime. However, the story looks quite different if we—literally—turn the page. As reported on the very next page of the records, after Mason’s motion passed, Madison then argued (unsuccessfully) for changing the venue for impeachment trials from the Senate to the Supreme Court, saying that if the president can be impeached “for any act which might be called a misdemesnor [sic]”, the president “under these circumstances was made improperly dependent” on the Senate.

Madison’s statement seems to tell us two things: First, he did not see “misdemeanor” in the amended impeachment clause as a term with well-defined limits, as would be the case if it instead said statutory violations or crimes. Instead Madison suggested that many kinds of acts “might be called” a misdemeanor. Second, Madison saw inclusion of “misdemeanors” in the impeachment clause as giving the Senate greater discretion to remove the president than just the phrase “other High Crimes.” Madison’s motion to move the venue of an impeachment trial from the Senate, where he feared a president’s political opponents could misuse the wide latitude the word “misdemeanor” affords, to an assumed apolitical Supreme Court failed on a 9-2 vote. But the language of what a president can be impeached for remained, leaving the Senate with what Madison considered to be very broad discretion to remove a President for “any act which might be called a misdemeanor.”

In the end, both advocates and opponents of impeachment might be focusing on the wrong word, “crimes.” Abuse of power and obstruction of Congress, as alleged in the House’s articles of impeachment against Trump—even if not crimes—could well be considered “misdemeanors,” meaning “misconduct,” specifically misconduct in office. This could provide the basis for impeachment and removal. Ironically, it may be that Dershowitz was far more correct 22 years ago than he is today.