-Caveat Lector-
>From SalonMagazine.CoM
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.
~~~~~~~~~~~~
A<>E<>R
The only real voyage of discovery consists not in seeking new landscapes
but in having new eyes. -Marcel Proust
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