Here's the Gray Old Lady's review of Rehnquist's book.
The New York Times
June 14, 1992, Sunday, Late Edition - Final
SECTION: Section 7; Page 9; Column 1; Book Review Desk
LENGTH: 725 words
HEADLINE: The Senate Was Their Jury
BYLINE: By Forrest McDonald; Forrest McDonald's most recent books are "Requiem: Variations on Eighteenth-Century Themes" and "Novus Ordo Seclorum: The Intellectual Origins of the Constitution."
BODY:
GRAND INQUESTS
The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson.
By William H. Rehnquist.
Illustrated. 303 pp. New York:
William Morrow & Company. $23.
WHEN one wishes to read solid history, pungently written, one does not turn immediately to the works of Supreme Court justices; the learned jurists, in their decisions, customarily maul both history and the English language. It is a happy surprise, therefore, to encounter Chief Justice William H. Rehnquist's book "Grand Inquests," covering the impeachment trials of Supreme Court Justice Samuel Chase in 1805 and President Andrew Johnson in 1868. With but a few trivial exceptions, Chief Justice Rehnquist's accounts are accurate, and though he sometimes clogs the flow with obiter dicta, even his
discursions manage to edify or amuse.
Chase's story is the more interesting of the two. When the Jeffersonian Republicans came to power in 1801, they were furious that the outgoing Federalist President, John Adams, had packed the Federal courts through "midnight appointments." Earlier, no one had shown much interest in the judiciary. Indeed, the designers of the capital city forgot to provide a building for the Supreme Court. Now the Republicans were frustrated: their overwhelming control of the elected branches could be stymied for decades by Federalist-dominated courts. Thomas Jefferson himself suggested impeachment as the remedy, and
he picked Chase as a target. Chase was not guilty of "high crimes and misdemeanors," as the Constitution required, but his partisanship and intemperate behavior on the bench made him politically vulnerable. Accordingly, the House voted to impeach him.
For various reasons the trial by the Senate was delayed almost a year, during which time suspense mounted steadily. Federalists warned that the independence of the judiciary, without which the concept of separation of powers was meaningless, was at stake. William Giles, a Republican Senator, countered (according to John Quincy Adams) that removal by impeachment merely meant "We want your offices for the purpose of giving them to men who will fill them better."
Chief Justice Rehnquist says that Aaron Burr, the lame duck Vice President, presided over the trial with surprising impartiality, making it a legal and not a political hearing. Enough Republicans voted with the Constitution rather than with their party to acquit Chase. In the years since, the author tells us, only 13 of the thousands of Federal judges have been impeached, none for political reasons, and only six have been removed.
Chief Justice Rehnquist's treatment of the Johnson impeachment is less satisfactory, partly because it rambles a bit, but mainly because it leaves some questions unanswered. Why did Congress bother to impeach the President at all when he had less than a year of his term remaining? True, he had opposed Radical Reconstruction, but the Radicals readily and repeatedly overrode his vetoes.
And why the principal charge against him? In 1867 Congress had passed, over Johnson's veto, the Tenure of Office Act, which broke precedent by requiring senatorial approval for Presidential removal of executive officials. Wanting to test the act in court, Johnson fired Secretary of War Edwin Stanton, but instead of a court case he drew impeachment.
What makes Chief Justice Rehnquist's analysis vexing is his judicial self-restraint. The articles of impeachment accused the President of failing to "take care that the laws be faithfully executed," for Johnson's firing of Stanton definitely violated the law. But Johnson's defense was also based on the Constitution's "take care" clause. He argued that by depriving him of control over subordinates, the Tenure of Office Act prevented him from executing the laws faithfully.
Clinton's lawyers can argue that even if Clinton violated the law, it was in the context of an investigation that was technically flawed to begin with.
The reader waits avidly, but vainly, for the author to remove his historian's cap, don his judicial coif and offer a constitutional decision. Instead he simply lets Johnson off the hook by saying that enough senators again rose above party to acquit him.
Over all, however, "Grand Inquests" is an informative and readable account of two pivotal trials that imparted safety and responsibility to that most draconian and potentially destructive feature of the Constitution's system of checks and balances, the impeachment process. |
