Here comes the judge

Chief Justice William Rehnquist's writings on impeachment contain good news for President Clinton.

Published December 16, 1998 8:00PM (EST)

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. But they can also block the Republicans' procedural moves and proposals for running the trial -- decisions that also require a two-thirds majority to prevail. 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.

By Jeff Stein

Jeff Stein is the coauthor, with Khidhir Hamza, of "Saddam's Bombmaker: The Daring Escape of the Man Who Built Iraq's Secret Weapon." He writes frequently for Salon on national security issues from Washington.

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