The Magazine


Chief Justice William H. Rehnquist, Presiding

Jan 4, 1999, Vol. 4, No. 16 • By TOD LINDBERG
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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.