Newsday (New York, NY)
October 14, 1998, Wednesday, NASSAU AND SUFFOLK EDITION
SECTION: VIEWPOINTS; Page A41
LENGTH: 806 words
HEADLINE: REHNQUIST IS HURDLE TO OUSTER OF CLINTON
BYLINE: By Betsy McCaughey Ross. Betsy McCaughey Ross wrote "Government by Choice: Inventing the United States Constitution." She is also lieutenant governor of New York and Liberal Party candidate for governor.
BODY: WILL PRESIDENT Bill Clinton be removed from office? No. Are the Republicans in for a surprise? Yes. Why? Because the man who will play the second most important role in the coming drama, Chief Justice William Rehnquist, is philosophically opposed to impeaching a president for anything except the most serious crimes against the nation.
In 1992, Rehnquist wrote a book, "The Grand Inquest," that warns about the dangers of a partisan Congress attempting to remove a president. Rehnquist, who was named to the high court by President Richard Nixon and elevated to chief justice by President Ronald Reagan, is known as a conservative jurist. But the chief justice's interpretation of impeachable offenses is what the Constitution's framers intended, not what the Republicans have in mind.
Next to the president himself, Rehnquist has the most important role in the coming months. If the House votes to impeach, the trial will take place in the Senate, with Rehnquist presiding. (The framers of the Constitution understood that if the president were removed from office, the vice president would be next in line and, consequently, an interested party. Therefore, they empowered the chief justice to rule in impeachment trials, even though the vice president is the Senate's
presiding officer in all other circumstances.)
Rehnquist's book gives us crystal ball insight into what the chief justice must be thinking about the impeachment hearing. "The Grand Inquest" is largely about the first time the nation impeached a president. In 1868, a Republican Congress tried to remove President Andrew Johnson from office. Johnson - a Democrat - was an adulterer, drunkard and stubborn opponent of the Republicans agenda for reconstructing the post-Civil War South. The New York Tribune recommended his removal, based on his shameless conduct. Congress actually passed a law (of doubtful constitutionality) for the purpose of enticing him to break it, which he did.
The very next day, the House of Representatives impeached Johnson. But when the historic moment arrived - the first and only time the Senate ever voted whether to remove a president - seven Republicans bolted from the majority and voted "not guilty," guaranteeing Johnson's acquittal.
Rehnquist considered this event important enough to write nearly an entire book about it. He argues that although Johnson broke the law and offended the moral sensibilities of most people around him, his conduct did not justify impeachment. The framers never intended that every "violation of the law" or "breach of duty" would lead to impeachment.
"Had the Republicans succeeded in removing a Democratic president," says Rehnquist, impeachment would hang "like a sword of Damocles" over the office. "Future presidents of one party facing a Congress controlled by the opposite party could well think twice about vetoing bills with which they disagreed and about resisting the inevitable efforts of Congress to poach on the executive domain." To Rehnquist, the acquittal was a victory "for the separation of powers that the framers implanted in the Constitution."
Make no mistake about Chief Justice Rehnquist's view of impeachment. He may be a Republican appointee, but his allegiance is not to Republicans or Democrats. It is to the Constitution and what he calls the framers "original contributions" to the "art of government" - a strong presidency and an independent judiciary. He says that had he lived two centuries ago, he certainly would have been a Federalist.
So as the impeachment process lunges ahead, remember the words of Rehnquist's kindred spirit, the author of Federalist No. 65. Alexander Hamilton. He predicted the danger that the outcome of an impeachment would be determined "more by the comparative strength of parties than by the real demonstrations of guilt or innocence."
That would have happened in 1868 except for the courage of seven senators. Rehnquist quotes them at length in "The Grand Inquest." Sen. William Fessenden (R-Maine) was the first to resist "the folly and madness of his party."
When his name was called on that historic day, Fessenden voted for acquittal. "I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an unacceptable president. Whatever may be my opinion of the incumbent, I cannot consent to trifle with the high office he holds."
In 1868, a handful of Republican senators had the character to say "not guilty." They "balked at the demands for party unity," wrote Rehnquist, and saved the essential feature of the Constitution - the strength and independence of the executive branch of government. Rehnquist made their achievement the subject of his book. It will clearly be on his mind as he conducts a trial of President William Jefferson Clinton. |
