Rehnquist's Impeachment Gavel
William Rehnquist was Richard Nixon's chief legal strategist when Nixon appointed him to the Supreme Court in 1971. He was the favorite of the radical right when Ronald Reagan promoted him to Chief Justice in 1986. As Chief Justice, Rehnquist handpicked the three extremely conservative judges who appointed Ken Starr as independent counsel. How convenient that, if there is a Senate trial, Rehnquist will preside over the fiercely partisan effort by the Republican Party's right wing to remove Bill Clinton from office. Of course, it could be worse. When Vice President Aaron Burr presided over the impeachment trial of Supreme Court Justice Samuel Chase in 1805, he had just been indicted for murder for killing Alexander Hamilton. And when Chief Justice Salmon P. Chase presided over the impeachment trial of President Andrew Johnson in 1868, the notoriously ambitious Chase was busy scheming to succeed Johnson as President.
The Chief Justice hasn't murdered anybody (the 500 legal executions Rehnquist helped make possible since 1976 don't count), and he doesn't appear to want Bill Clinton's job. He's even written an informative book, Grand Inquests, on the two major Senate impeachment trials in the nation's history, chronicling in numbing detail the acquittals of both Samuel Chase and Andrew Johnson. The Chase trial ended in acquittal when President Thomas Jefferson's efforts fell four votes short of the constitutionally required two-thirds of the Senate. The Johnson trial failed to remove the President by a single vote.
Rehnquist applauds the Senate for refusing to remove Chase and Johnson from office. Chase's acquittal, argues the Chief Justice, helped establish the principle of judicial independence. In the 194 years since Chase's acquittal, no Supreme Court Justice has faced a Senate impeachment trial. Johnson's narrow acquittal, argues Grand Inquests, preserved the separation of powers, preventing the emergence of Congressional supremacy by requiring an impeachment trial to be a judicial inquiry, not a political vote of confidence. In the ensuing 130 years, no American President faced an impeachment trial in the Senate--until William Jefferson Clinton.
Rehnquist has special praise for the seven Republican senators who broke party ranks and voted to acquit Andrew Johnson. But does that mean Bill Clinton would have an unexpected friend in court presiding over the Republican-dominated Senate? Not likely. As I read the tea leaves in Rehnquist's book, and in his past, I believe that the Chief Justice will choose to play a relatively low-key role in any Senate trial, assuring fair and orderly procedures but leaving virtually every important legal issue to be decided by the 100 senators themselves by the chaotic process of majority vote. Despite my deep disagreement with the Chief Justice on many issues, I believe that such a passive role would be unfortunate because, unless Chief Justice Rehnquist chooses to assert himself, the Clinton impeachment trial, barring any move to forestall it, will drift into legal wonderland. In the end, of course, after the Senate mud-wrestlers have grunted their way through the lengthy script, the verdict is likely to be the same as in the Chase and Johnson impeachment trials--acquittal by less than a two-thirds vote. Twelve Democratic senators are probably not going to join with the fifty-five Republicans to annul the 1996 presidential elections. But months and months of vitriol could tie the Senate into knots and further embitter an already poisonous political atmosphere.
While the senators are going through their paces, what kind of presiding officer will William Rehnquist be? Politically, he is an extremely conservative Republican loyalist. But Rehnquist is also deeply committed to the rule of law, to basic norms of procedural fairness and to the importance of respecting the democratic process. This is abundantly evident in Grand Inquests, where he repeatedly argues that an impeachment trial should be viewed as a solemn judicial event, not a political exercise. Whatever his private political views, the Chief Justice is likely to run as fair a hearing as possible in the surreal environment that is an impeachment trial. But that doesn't say much, because a full-fledged impeachment trial is like nothing any of us has ever seen. In the first place, the Chief Justice does not function as a real judge; he is merely an over-qualified presiding officer. His rulings, if he makes any, are immediately appealable to the Senate as a whole. While the Chief Justice's stature may give his decisions a presumptive validity, the partisan political nature of the Clinton impeachment trial virtually guarantees that all important rulings will be challenged, especially if they go against the Republican majority. That means 100 partisan judges, each ruling separately on every disputed issue of law and fact, ranging from the sufficiency of the charges to mundane questions of admissibility of evidence. Mercifully, under rules adopted during the Johnson impeachment trial, the seriatim voting of the senators may not involve debate; but who really believes anything will stop the assembled from explaining why they are voting a particular way? The prospect is for partisan chaos, with every legal issue that a judge usually decides in a real trial thrown open for reconsideration.
At least four important legal issues are raised by the Clinton impeachment trial, but it's not clear whether any of them can, or will, be decided by the Chief Justice. Indeed, in light of the history recited in the Chief Justice's book, it's not clear how they will be decided at all.
Is a bill of impeachment voted by the House in the closing days of a lame-duck Congress legally sufficient to force an impeachment trial before the new Senate, or must the charges be re-enacted by the new House?
In both the Chase and Johnson trials, bills of impeachment were passed by the House and tried in the Senate during the same Congress. While several federal judges have been impeached and tried by different Congresses, the question has never been definitively resolved. Legislation must ordinarily be passed by both houses during the same Congress. If a bill passes only one house before a Congress ends, it must be re-enacted by both houses in the new Congress. Why should a bill of impeachment be different? The issue has real practical importance, since the article of impeachment based on alleged obstruction of justice passed by such a narrow vote in the old House that the presence of a few additional Democratic votes would seem almost certain to defeat it.
Is a President charged with criminal acts entitled to a specific description of the conduct that is alleged to be criminal?
In both the Chase and Johnson cases, the bill of impeachment provided detailed descriptions of the precise conduct that the House believed constituted high crimes and misdemeanors. In the Clinton trial, the bill of impeachment makes conclusory allegations of perjury before the Starr grand jury and alleges obstruction of justice, but fails to specify the precise conduct involved. In an ordinary civil or criminal proceeding, a defendant would undoubtedly be entitled as a matter of procedural due process of law to notice of the precise conduct that is alleged to be unlawful. How else can you mount a defense? Why shouldn't the same due process protections be available to a President of the United States facing removal from office?