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.
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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?
Did the President actually commit the crimes of perjury or obstruction of justice charged in the bill of impeachment?
The conduct at issue in the Chase and Johnson impeachments was not criminal. In the Chase impeachment, the charge that garnered the most votes was that Justice Chase had abused his judicial authority by charging a Baltimore grand jury in highly partisan terms. In the Johnson impeachment, the principal charge was that the President had fired Edwin Stanton, Lincoln’s popular Secretary of War, in violation of a Congressional statute forbidding the dismissal of Cabinet officers without the consent of the Senate. No serious questions of fact or law were posed by those charges. The only issue was whether they constituted “high crimes and misdemeanors” justifying removal from office.
But the Clinton trial will inevitably raise difficult issues of fact and law about whether he actually committed perjury or obstruction of justice. Ironically, the House played its weakest perjury card in choosing to charge the President with lying to the Starr grand jury but not with lying in the Paula Jones civil case. Most observers believe the Jones perjury count would have been easier to prove. The crime of perjury requires a showing beyond a reasonable doubt that a defendant actually knew that what he was saying was a lie. Confusion, even self-deception, can be defenses. So perjury is going to be particularly hard to prove in connection with the President’s ambivalent grand jury testimony.
Usually, a judge decides whether the prosecution’s proof of intent to lie is strong enough to go to a jury, and the jury then decides whether a reasonable doubt exists about it. Should the same rules apply in a presidential impeachment trial?
Similarly, a charge of obstruction of justice requires proof beyond a reasonable doubt of a premeditated intention to persuade someone else to lie or to conceal evidence. As the margin on the obstruction of justice count in the House suggests, the supporting evidence on the charge is weak, primarily because all the alleged participants vigorously deny it. It’s even possible that the new House will decline to appoint House managers to prosecute the obstruction charge in the Senate.
What happens when discrepancies emerge in the narrative of what actually took place? There wasn’t much disagreement over the facts in both the Chase and Johnson impeachment trials. But the Clinton trial will present diametrically opposed versions of events. The grand jury perjury count may come down to a “he said, she said” disagreement over exactly what part of Monica Lewinsky’s anatomy Bill Clinton touched. Since no testimony against the President has yet been subjected to cross-examination because it was all developed in the cozy precincts of Ken Starr’s grand jury room, sworn testimony from the leading players, including the President, Monica Lewinsky, Betty Currie, Vernon Jordan and even the execrable Linda Tripp, with extensive cross-examination of them all, is a real possibility. There is even the appalling prospect of indirect questioning of witnesses by each of the 100 senators, with the Chief Justice reading the written questions of each to various witnesses.
When inevitable questions of fact arise as a result of conflicting testimony, who has the burden of proof? Must guilt of criminal allegations be established beyond a reasonable doubt, as in a criminal case? By clear and convincing evidence, as in mental commitment or parental termination hearings? Or merely by a preponderance of the evidence, as in an ordinary civil case?
Does the conduct charged in the bill of impeachment constitute high crimes and misdemeanors warranting the removal of an elected President from office?
The heart of the Clinton impeachment trial will be whether the President’s alleged conduct, even if the allegations are true, constitutes “high crimes and misdemeanors” warranting annulment of the 1996 presidential election. Before a partisan House adopted a bill of impeachment charging Clinton with lying about his sex life, the overwhelming weight of opinion was that the phrase described an abuse of public power that threatened the proper operation of the democratic process. Impeachment was thought to be a political remedy for misuse of official power, not a technique for punishing private wrongdoing that could be dealt with adequately by the ordinary processes of law.
The Chase and Johnson impeachment trials both alleged abuse of official power. Chase was charged with abusing his judicial power. Johnson was charged with abusing his presidential power. But this President is charged with criminal behavior having nothing to do with the actual conduct of his office. Simply put, the senators will be asked to decide whether the President’s lying about his sex life, even under oath, is a sufficiently grave threat to the Republic to warrant the cancellation of a presidential election, or whether such alleged misbehavior should be left to ordinary criminal law. I don’t think the legal issue is close. Perjury is a terrible thing. So is obstruction of justice. But you don’t need the nuclear weapon of impeachment to deal with either charge, unless the criminal behavior is connected to abuse of official power. Punishing personal wrongdoing is what the criminal courts are for. There’s a rumor that a sealed grand jury indictment has already been issued by Ken Starr against the President, to be opened the day he leaves office. Why isn’t any such measure enough? The real risk posed by the Republicans’ irresponsible effort to remove Clinton from office is that it degrades the meaning of high crimes and misdemeanors by allowing political opponents to focus on private wrongdoing instead of public need as a pretext for overriding popular electoral mandate.
Chief Justice Rehnquist could attempt to bail us out of the prospect of a nightmarish proceeding that threatens to tie the Senate up for months and set the stage for the next exercise in political revenge. He could announce that in the month that will elapse between the formal filing of charges with the Senate on January 6 and the beginning of a Senate trial on February 6, he will entertain motions on contested legal issues. He could rule that the bill of impeachment expired with the death of the 105th Congress. He could rule that the House’s failure to specify the actual conduct that underlies the charges of perjury and obstruction of justice violates the due process clause. He could rule that the evidence in the House Judiciary report is insufficient to establish the crimes of perjury or obstruction of justice beyond a reasonable doubt. Most important, he could rule that Presidents cannot be impeached unless they abuse the powers of their office.
If Earl Warren were Chief Justice, we could look to him to preserve democracy against rabid political partisanship that puts ideology above respect for elections. But William Rehnquist is no Earl Warren. Both his political instincts and his judicial philosophy will almost certainly cause Rehnquist to defer to the Senate Republican leadership, even on issues of law that cry out for judicial resolution. Nothing in Grand Inquests suggests otherwise. That leaves us on the brink of a legal fiasco, with the Senate called upon to decide multiple questions of law and fact under impossible conditions. One hundred and thirty years ago, it took seven Republican senators of conscience to save the institution of the presidency by crossing party lines to prevent the removal of an unelected President charged with abuse of power. This January it will take only six Republican senators of conscience to spare the nation from an attempt to remove an elected President charged with botching an attempt to cover up his sex life. Fifty-one senators could bypass or overrule the Chief Justice and seize on legal arguments involving the four issues outlined above as a reason to end the assault on democracy. Or they could work out a deal under which the President accepts censure instead of holding out for acquittal.
But now that the House has done its worst, perhaps Clinton sees little reason to accept censure, except a desire to spare himself, and the rest of us, the agony of having to endure this tawdry business any longer. Rehnquist points out that in the Chase and Johnson trials, even with a comfortable two-thirds majority, enough senators of conscience defected their party to prevent conviction. Here, the Republicans start out twelve votes shy of the magic number and the perjury and obstruction of justice charges are weak, making removal from office doubtful. Having already endured the pain of becoming the only elected President in the nation’s history to be impeached, what does Clinton have to gain by accepting a censure that would validate the impeachment? History views both Chase and Johnson as victims of political persecution, even though both men were thoroughly disagreeable characters. A Senate acquittal would place Clinton in that class. By fighting the charges in the Senate, Clinton might even become known as the President who put an end to efforts to turn impeachment into just another political tool.
In fact, the Senate Republicans need a deal far more than Bill Clinton. The radical right’s obsession with removing President Clinton has already cost the Republicans two Speakers of the House, a disastrous showing in the recent elections and the lowest poll ratings in fourteen years. Meanwhile, Clinton’s approval ratings float ever higher. Muhammad Ali used his "rope a dope" strategy to trick opponents into punching themselves silly before Ali delivered a knockout blow. Could it be that Bill Clinton is taking lessons from Ali, while the Republicans are listening to General Custer? Unless fifty-one senators-and that means at least six Republicans-find a way out, the next four to six months in the Senate chamber will be bad farce, worse government and suicidal politics.
