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.
Strangely though, the chief justice of the United States will have less real power in this court of impeachment than a lowly trial judge has in district court. There is nothing final about Rehnquist's say here. The proceedings are apt to include numerous instances in which the jurors vote to uphold or overturn the judge. His rulings take effect only so long as a majority of the senators agree with him.
Consider this little sequence of events near the conclusion of the Andrew Johnson impeachment. After the House managers of the case against Johnson made their final arguments, applause broke out in the gallery.
THE CHIEF JUSTICE. Order! Order! If this be repeated the Sergeant-at-Arms will clear the galleries.
This announcement was received by laughter and hisses by some persons in the galleries, while others continued the cheering and clapping of hands.
MR. GRIMES. Mr. Chief Justice, I move that the order of the court to clear the galleries be immediately enforced.
The motion was agreed to.
THE CHIEF JUSTICE. The Sergeant-at-Arms will clear the galleries.
[Hisses and cheers and clapping of hands in parts of the galleries.] If the offense be repeated the Sergeant-at-Arms will arrest the offenders.
MR. TRUMBULL. I move that the Sergeant-at-Arms be directed to arrest the persons making the disturbance, if he can find them, as well as clear the galleries.
THE CHIEF JUSTICE. The Chief Justice has already given directions to that effect.
Actually, maintaining order in the court is the least of the issues here. The White House, for example, is said to be considering a constitutional challenge to the House impeachment articles. It would argue that an impeachment cannot carry over from one Congress to the next, or else the Twentieth Amendment's provision moving the start of a new Congress from March to January, thus doing away with routine lame-duck sessions, has no meaning. The president can try to litigate this claim if he wants to. Getting the matter resolved, presumably including appeals as far as the Supreme Court if only to resolve the question of whether an impeached president can raise such a claim in the courts, might delay the impeachment trial; the delay is something the president might or might not find politically useful, depending on the circumstances. But rather than going to court, the president's defenders may choose to raise the issue in the forum of the Senate impeachment trial, possibly in the form of a motion to Chief Justice Rehnquist at the outset to end the proceedings on grounds that the carry-over was unconstitutional. Rehnquist would duly rule -- but the real power to make the decision would lie with the Senate, which would either accept or reject his decision by majority vote.
Impeachment is thus a realm where the Senate itself may be called upon to decide what is constitutional and what is not in any number of areas. They will have the benefit of Rehnquist's thinking. But the majority will rule. Really, how could it be otherwise? In impeachment trials, the Senate's say is final. There is even the rather interesting theoretical possibility that the Senate will consider a matter the Supreme Court has already ruled on and reach an opposite conclusion. The House, in the end, did not vote out an article charging perjury in the Paula Jones case; but if it had, the president's lawyers might have had the opportunity to revisit the Supreme Court ruling rejecting the claim that the president is immune to civil suit while in office. Fifty-one senators would be free to reach the conclusion that the Court had it wrong. There is also potential for conflict at a subconstitutional level. Suppose the chief justice rules that certain testimony shouldn't be heard on grounds of hearsay. If a majority of the Senate decides it wants to have the testimony, the usual judicial rules on hearsay simply won't apply.
This might sound like a recipe for disaster and delay -- the proceedings forever galloping off, Judge Ito-like, on one tangent after another -- but that almost surely overstates the case. If there's one thing people who know Rehnquist find laughable, it's the notion that this will inevitably be a lengthy and meandering proceeding. He is famous for moving things along, not least in the contentious environment of the Supreme Court where he manages the work of nine people with seriously divergent viewpoints and guaranteed lifetime tenure who happen to have the last word on what the law of the land is. The conferences he holds with fellow Supreme Court justices are said to be exemplary in their efficiency. Even the late Justices Thurgood Marshall and William Brennan praised the ability of the conservative Rehnquist to manage the court.
Rehnquist's public persona is humorless and unforgiving. He has a reputation for suffering fools badly, especially those making legal arguments he considers flawed. At the Supreme Court he has been known to interrupt oral arguments -- in a tone comprising of astonishment and contempt -- to ask an offending lawyer if it is really possible that he is making such a ridiculous point. Rehnquist is no politician. He has no detectable glad-handing skill or sensibility, and the notion that he would play to a camera is ridiculous to those who know him. In fact, there is widespread agreement that cameras will televise Supreme Court public proceedings only after he is long gone.
In short, there is a certain imperious authority that comes of being only the 16th chief justice of the United States. He will surely exert it at an impeachment trial. It is by no means a simple thing to ride herd on one hundred egos as large as those of U.S. senators. But it seems improbable that anything like an organized rebellion against his authority will arise. And while his manner may not seem cuddly to the television audience at home or sufficiently unctuous to senators used to a certain highfalutin deference, his mastery of the law is surely greater than that of anyone in the Senate, and the senators are likely to respect that.
Rehnquist has been preparing for this moment for a long time. Exhibit A in support of this proposition is his 1992 book, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson, a popular history of what the chief justice clearly regards as the two most important impeachment proceedings in U.S. history -- at least to date.
Grand Inquests was respectfully and favorably reviewed in the popular press and the legal press when it appeared six years ago. The identity of its author was of course a key reason; when the chief justice speaks, lawyers listen, especially if they belong to the fraternity with business before the Supreme Court. Also, there was the novelty of at least the theoretical possibility that the author would one day preside, as the Constitution warrants, over the impeachment trial of U.S. president. But Rehnquist's recounting of how Justice Chase ran afoul of the House of Representatives in 1804-05 over the Alien and Sedition Act and of President Johnson's troubles over the 1867 Tenure of Office Act rang no particular bells with the reading public. Now, however, who would deny that Rehnquist's views on impeachment have become an urgent concern.
Rehnquist regards the two impeachments he writes about here as important for what they did not do. The Senate acquitted both Samuel Chase and Andrew Johnson. Rehnquist is at pains to establish that had either been convicted, it would have been a dangerous precedent. In the case of Justice Chase, the Senate declined to remove a judge with whom most senators disagreed politically. The result was an affirmation of the independence of the judiciary. Conviction and removal would have amounted to an assault on the ability of judges to reach their courtroom conclusions independently. President Johnson had enraged congressional majorities with his reluctance to accept Congress's views on post-Civil War Reconstruction of the national government. Had the Senate removed him, the country might have taken a long step away from a presidential system toward a parliamentary system, in which all it takes is a parliamentary vote of no confidence (a two-thirds vote, to be sure), for political reasons or over a policy disagreement, to topple the head of state and chief of government.
It will be tempting to infer from his conclusions in Grand Inquests that the chief justice is skeptical about impeachments in general -- including this one. A careful reading of the book shows a more nuanced view. The impeachment of Samuel Chase also had the effect of imparting a certain humility and discretion to the conduct of judges, both inside and outside the courtroom. The idea that federal judges should step out to offer their views on political matters has been alien ever since. And President Johnson himself did accommodate the concerns of the House majority on the principal point of contention between them. In general, he diminished his opposition to the House members' view of how Reconstruction should proceed.
The larger, historical, point, however, is clear. In Rehnquist's words, the Chase and Johnson acquittals confirmed that
Impeachment would not be a referendum on the public official's performance in office; instead, it would be a judicial type of inquiry in which specific charges were made by the House of Representatives, evidence was received by the Senate, and the senators would decide whether or not the charges were proven. The Johnson acquittal added another requirement. . . . It was not any technical violation of the law that would suffice, but it was the sort of violation of the law that would in itself justify removal from office.
The Rehnquist book also establishes, not by design but just as a matter of course, that for 200 years the quarrel over impeachment has been between those who would impeach only for crimes and those who would impeach for things that might broadly be construed as political disputes. The quarrel has not been over whether felonious conduct is impeachable. The notion that it isn't would seem to be a modern invention.
Grand Inquests is also interesting for the dog that isn't barking, especially in the account of the Johnson impeachment. Rehnquist has very little to say about the actions, reasoning, and rulings of Chief Justice Chase. He confines his discussion of Chase to the observation that Chase's own ambition for the presidency, in this highly charged and partisan climate, may have fed the unproven charges that Chase wanted acquittal and worked corruptly behind the scenes to achieve it. Rehnquist seems offended at the notion that serving as chief justice of the United States is somehow an insufficient accomplishment in life.
Surely Rehnquist has views on his predecessor's conduct of the Johnson impeachment trial. But he has kept whatever he learned from his research to himself -- perhaps in reserve for the day when he might be called upon to preside over an impeachment trial.
That day is fast approaching. And Rehnquist's few words about Chief Justice Chase may offer a cautionary note. This, too, will be a highly charged and partisan environment, if not in the Senate chamber, then surely among those second-guessing on the outside. The president's greatest ally is still public opinion. The White House has yet to make up its mind about the legitimacy of this process. As to what the White House and its friends might say about the chief justice if the rulings in an impeachment trial go against the president -- Rehnquist, after all, is a Republican -- well, it might just take the seriousness, if not indeed the imperiousness, of a Rehnquist to stand up to it.
Still to come, as Rehnquist knows well, is the judgment of history -- and by history's reckoning, it's not just the president on trial. It's also the House, the Senate, the chief justice, and even the nation.
Tod Lindberg, a frequent contributor, is a columnist for the Washington Times, where he was editorial page editor for seven years. In January, he becomes editor of Policy Review.