Here comes the judge
Chief Justice William Rehnquist's writings on impeachment
contain good news for President Clinton.
BY JEFF STEIN | With the momentum for impeachment
rolling like a freight train through the House of
Representatives, few people seem to have noticed that the
Democrats have the capacity to pull the emergency brake
early in any Senate trial.
If Chief Justice William Rehnquist doesn't beat them to it.
It's clear that by voting along party lines, the Democrats
have far more than enough votes to prevent the conviction
of President Clinton, which would require 67 votes, or
two-thirds of the Senate. The Republicans have only 55
votes, the Democrats 45 -- 11 more than they need to block
the Republicans' every move.
End of story. Or, as the lawyers put it, impeachment will be
moot.
"The Washington Post is not likely to see the wisdom of the
arithmetic until after the House votes," a conservative
federal judge noted wryly in a conversation over the
weekend. One of a handful of votes on procedural issues in
the Senate, he forecast, would demonstrate the Democrats'
strength, at which point the Republicans might as well
throw down their guns.
"I'm quite astonished no one has pointed that out," said the
judge, a Republican appointee who allowed -- strictly off
the record -- that "I have an even more visceral dislike for
Al Gore than I do Bill Clinton. Clinton wants to be my
buddy, he'll do anything to be my friend. But Al Gore is a
liberal who believes all those things."
But a potentially more formidable obstacle awaiting the
Republicans in the Senate, he suggested, lies in the person
of Rehnquist, who would oversee a trial of Clinton by virtue
of the rules laid out in the Constitution. Rehnquist,
appointed to the court by President Nixon, revealed a
disdain for impeachment in his little-noticed (until now) and
out-of-print 1992 book, "Grand Inquests: The Historic
Impeachments of Justice Samuel Chase and President
Andrew Johnson."
Chase was a Supreme Court judge who incurred the wrath
of President Thomas Jefferson and the Federalists through
some inflammatory court decisions and by openly
campaigning for Jefferson's enemies in a Maryland Senate
race. Rehnquist applauds the Senate's 1805 decision to
acquit Chase because it helped insure the independence of
the judiciary from political meddling. But the chief justice
equally admires the Senate's acquittal of Johnson for not
undermining the authority of future presidents.
Johnson, of course, rose to the presidency upon the
assassination of Abraham Lincoln in April 1865, just as the
Confederacy was surrendering. He promptly set about
blocking abolitionist Republicans' plans for
"reconstructing" the South, however, earning their rage.
When he fired a Cabinet member over the express
forbiddance of Congress, the House moved to impeach him
even before charges were drawn up.
"Grand Inquests" makes clear that Rehnquist disapproves
of such rushes to judgment, although the judge predictably
couches his disapproval in judicious language. The
impeachment of Johnson, especially, would have been all
wrong, he signals.
"To the traditional weapons of Congress in opposing
presidential actions with which it disagrees -- refusing to
confirm appointments, overriding vetoes, demanding
information from the executive -- would have been added
yet another one: the threat of impeachment," Rehnquist
writes.
As if to foreshadow Clinton's difficulties, Rehnquist
explains that Johnson's conviction would have opened the
door to frivolous impeachment attempts against subsequent
presidents. "A specific violation of the law or breach of duty
would ... not have to be a serious one involving moral
culpability. And once such a dereliction had been found,
other charges of a far more nebulous nature could be added
[to an impeachment bill]."
And that would chill any president's attempt at political risk
taking. "Future presidents of one party facing a Congress
controlled by the opposition party could well think twice
about vetoing bills with which they disagreed, and about
resisting the inevitable efforts by Congress to poach on the
executive domain," Rehnquist observed.
By acquitting Johnson and, 60 years earlier, Chase, the
Senate ensured that "impeachment would not be a
referendum on the public official's performance in office,"
Rehnquist adds approvingly. "Instead, it would be a judicial
type of inquiry in which specific charges were made ... or ...
were proven." And, by the way, the Republicans who
acquitted Johnson made clear that it was not any "technical
violation of the law that would suffice," Rehnquist writes.
The House's slim Republican majority makes Clinton's
impeachment this week nearly a foregone conclusion,
putting the president's fate in the hands of Rehnquist and
the Senate.
There, the 55 Republicans and 45 Democrats will face
immediate decisions on such pivotal questions as the
standard of proof for conviction, for example -- "beyond a
reasonable doubt" or "preponderance of evidence"? Will
hearsay be allowed? What is the definition of perjury?
How much attorney-client privilege will be permitted the
president and his lawyers? Will allegations of misconduct
by independent counsel Kenneth Starr be addressed? And
if Starr is found to have transgressed, will the impeachment
charges against Clinton be nullified? Any Republican
proposal on such questions would require a two-thirds
majority.
And so on. On any or all of these questions, the Democrats
can comfortably flex their muscles for the untold months a
trial will take, knowing they can throw back a united
Republican assault and survive even 11 defections from
their side. Watching over the whole sordid affair, of course,
will be Rehnquist, whose public writings show little
patience for a chainsaw assault on the third leg of the
government.
Clinton has to like his chances in a Senate trial. No wonder
he hasn't confessed.
SALON | Dec. 16, 1998
Jeff Stein covers criminal justice issues for Salon in Washington.
salonmagazine.com |
