TRIAL OF THE CENTURY
Chief Justice William H. Rehnquist, Presiding
Jan 4, 1999, Vol. 4, No. 16 • By TOD LINDBERG
It will begin like this: The presiding officer of the U.S. Senate will ask the man before him in the Senate chamber, William H. Rehnquist, the chief justice of the United States, to raise his right hand and take this oath: "I solemnly swear that in all things appertaining to the trial of the impeachment of William Jefferson Clinton, president of the United States, now pending, I will do impartial justice according to the Constitution and the laws: so help me God." Rehnquist, in turn, will administer the same oath to all the members of the Senate, sitting as a jury. This will likely occur on or about January 7. And the trial to determine whether Bill Clinton will be removed from office will get underway.
If such a trial comes to pass, inevitably, it's going to have a certain majesty -- in fact, a majesty out of all proportion to the tawdry conduct about which Clinton lied and obstructed justice, according to the articles of impeachment passed by the House. The Senate is well-practiced in trying to fake solemnity, albeit with mixed success. With the chief justice presiding over the Senate trial of an impeached president for only the second time in history, however, the solemnity is going to be genuine.
Will the trial of William Jefferson Clinton really go forward? Surely, the White House wants no such thing, and some of the senators and elder statesmen of both parties are bidding for their place in history as the brokers of some kind of censure deal. But this impeachment business, as we have all had occasion to observe, has a certain glacial momentum of its own. It may not be unstoppable, but it isn't easy to stop.
An attempt to derail the trial altogether would require a resolution that, under Senate rules, would be subject to filibuster. So if as few as 41 members of the Senate insist that a trial start, it will. It's one thing to note that achieving 67 votes to convict the president seems a remote prospect, especially since 45 of the 100 members of the jury are fellow Democrats. It's another thing to say with confidence that 60 senators can agree not only that the matter should go no farther, but also on the infinitely more complicated issue of the terms on which it comes to an end. Take censure. What would that entail? How much would Clinton admit? How contrite would he have to pretend to be? Would there be a penalty of some sort? Are there terms on which 15 Republicans would join 45 Democrats, plus the president, to overcome a filibuster mounted by any one Republican who objects. Can it even be assumed that the Democratic party would be united? West Virginia's Robert Byrd has been ominously inconclusive about the matter.
The White House is confident that this whole thing will be over in a month; in turn, this confidence, which some might interpret as cockiness and an unwillingness to recognize how serious Clinton's problem is, could make it harder to settle the matter. Once under way, the trial can end with a resolution passed by a simple majority. In that sense, it is easier to stop once it has started. But are 51 senators going to be so quick to risk the charge that they are indifferent to evidence in something so grave and constitutionally large as an impeachment trial? Once such an awesome thing is set in motion, it may well develop a life of its own along the lines that propelled the House to a vote on impeachment articles. Trials are, by their nature, inherently unpredictable, impeachment trials all the more so for their rarity and constitutionally unique character. Who knows what might happen?
A few things are clear, however. When it's the president in the dock, it's the chief justice who serves as magistrate. Rehnquist will rule on the constitutional issues, the law, the rules of evidence -- everything. And he will be the one who maintains order in the Senate chamber as the case goes forward. Presumably, he will be guided by the Supreme Court's past decisions, federal rules of criminal procedure, and precedent in impeachment cases. But there is nothing that requires him to be so guided. And his judgment is not subject to the review of any higher court.
But in a procedure unique to impeachment, his judgment is subject to the immediate review of the Senate -- the very jurors in the trial. In an ordinary courtroom, the judge has extraordinarily broad authority, including the power to hold persons in contempt and sanction or even imprison them for the failure to abide by his instructions. At the Supreme Court, Rehnquist is famously intolerant of any insult to the decorum of the Court's proceedings. And no lawyer arguing a case before him would dare be anything but attentive to him, deferential and immediately compliant. It is simply the respect due the constitutional head of the judicial branch when he is presiding over the Supreme Court.