Where’s the chief … and the candor?

In recent days, many senators have been speaking as if they have the
constitutional authority to decide whether or not the House’s impeachment
of Bill Clinton will be brought to trial. But a good case can be made that any
such senatorial action would violate the terms on which the Constitution
establishes the Senate as the court empowered to try impeachments of the president of the United States. The Constitution says explicitly that “When the President of the United States is tried, the Chief Justice shall preside.” (Article I, Section 3) Therefore, when acting as a Court for the impeachment of the President, the Senate acts under the presiding authority of the Chief Justice of the United States. Apart from its power as a Court of impeachments under the presiding jurisdiction of the Chief Justice, the Constitution gives the Senate no other power to pass judgments against the President or impose penalties upon him.

This means that there is nobody in the Senate who has the presiding
authority to call the Senate to order as a court of presidential impeachment. That authority rests with the chief justice of the United States, Justice William
Rehnquist. As the constitutionally designated presiding judge, he is the individual responsible for the conduct of the trial. Since he must be in the chair, no trial can proceed without his cooperation. The Senate has no independent authority to decide when or whether the trial will occur, or how it will be organized. These are decisions that can properly be made only by and with the authority and cooperation of the individual required to conduct the trial, the chief justice.

Clearly then, once Chief Justice Rehnquist has been formally notified by
the House of the charges against President Clinton, it is for him to take steps to assure that the trial takes place in an orderly and expeditious fashion, which must include making sure that the senators are properly notified and sworn to hear the charges brought by the House of Representatives. Furthermore, as the presiding judge, the chief justice is the proper authority to rule with finality on the admissibility of evidence, witnesses and other procedures and organizational aspects of the trial. Clearly, prudence dictates that he do so with respect for and in consultation with the senators. But the argument that the Senate is the master of its own procedures cannot be easily applied in this situation. The presiding authority of any body usually makes procedural decisions subject to overrule by a majority of the body. But as a matter of fact, a presiding officer can be effectively overruled only if, upon his adamant insistence on any point, he can be removed from his chairmanship. However, when the Senate considers the impeachment of the president, it does not have the power to remove the chief justice. He holds the chair by direct authority of the Constitution.

In several initial drafts of the Constitution, the Supreme Court was
established as the court of impeachments for federal officials. For reasons outlined by Hamilton in Federalist 65, the Senate ultimately received that role. He asks whether it might “have been an improvement of the plan to have united the Supreme Court with the Senate in the formation of the court of impeachments.” He acknowledges that, “This union would certainly have been attended with several advantages;” but a sense of the disadvantages won out. He then observes that “the benefits of that union will be obtained from making the Chief Justice of the Supreme Court the president of the court of impeachment”.

As we observe the present floundering of the Senate’s efforts to compose
itself for the trial of the president, it is easy to see what those benefits may
be. The trial of the president is not supposed to be a partisan struggle,
determined exclusively by political maneuvers, expediency, or corruption. It must be seen to be a fair and orderly process, ultimately policed by the judgments of a guide not subject to immediate political pressures or calculations. As Hamilton notes later in the Federalist papers, (Federalist 78) the Framers took great pains to assure that the members of the Supreme Court would be in this position of independent integrity, the chief justice above all. It makes sense to conclude that this governed their decision to make the chief justice responsible for the conduct of proceedings so necessary and yet so potentially dangerous to the peace, safety and
stability of the republic.

If the trial is not conducted under the authority of such an independent
presiding officer, there may be grave consequences for our constitutional system. In another but similar context, Hamilton points out “the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the state, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to … persecution.” (Federalist 65) Moreover, the precedent of a trial conducted at the mere discretion of the Senate would open the door to the destruction of the independence of the executive. For example, once the House
passed articles of impeachment against a president, the Senate could
manipulate the prospect of the delay or indefinite postponement of the trial to coerce his cooperation with their legislative or other agendas.

The Framers were particularly wary of this sort of legislative dominance of
government at the federal level. I believe they aimed to preserve the
constitutional balance by making sure the presidential impeachment trial
would be, at least in terms of its procedures, free of the direct corruption of
political intrigue. They did so precisely so that the kind of political maneuvering, deal making, and possible intimidation that we are presently witnessing could not prevent a speedy, expeditious and fair trial of articles of impeachment voted by the House.

Chief Justice Rehnquist has a weighty and explicitly personal responsibility to preside over the conduct of the trial of the president. The nation depends upon his firmness and discretion, and we ought to insist that his role be
respected by the Senate so that the integrity of the constitutional process can be preserved.

At this moment, every eye in America should be turned toward Chief Justice
Rehnquist to encourage and support his constitutional authority. It is
clearly his duty to assure that a trial is speedily convened and properly
conducted, so that the nation can anticipate a result that justifies our continued faith in the processes of constitutional self-government.