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Chief Justice William H. Rehnquist.
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Revisiting Rehnquist's
Look at Impeachment

By Joan Biskupic
Washington Post Staff Writer
Friday, September 18, 1998; Page A27

He may not be talking now, but Chief Justice William H. Rehnquist's 1992 book on impeachments is being devoured for any clues about how he would handle the current presidential scandal.

What Rehnquist has to say about impeachment is of great political interest because he would, as the Constitution requires, preside over any Senate trial of President Clinton.

"It just really significantly impairs, if it doesn't cripple, a president to be the subject of an impeachment trial," said Rehnquist, an amateur historian and prolific author (another book of his is being released today), when the 1992 tome was published.

Members of Congress have been frantically seeking Rehnquist's "Grand Inquests," as well as other impeachment reading, as they decide how to handle independent counsel Kenneth W. Starr's report on Clinton's relationship with former White House intern Monica S. Lewinsky.

Rehnquist's book captures the Senate impeachment trials of Supreme Court Justice Samuel Chase in 1805 and President Andrew Johnson in 1868. These epic trials were so politically driven, Rehnquist said in his lively narrative, that if either man had been convicted, "a long shadow would have been cast over the independence" of the judiciary and the president.

Impeachment, the chief justice said, would have become "a sword of Damocles, designed not to fall but to hang." And he concluded, "[T]o the traditional weapons of Congress . . . -- refusing to confirm appointments, overriding vetoes, demand ing information from the executive -- would have been added another one: the threat of impeachment."

Shortly before the book's publication (by William Morrow and Co.), Rehnquist adapted his research into a law review article. In that, he observed that after the acquittal of Chase, whose Federalist views rankled the Jeffersonians, President Thomas Jefferson himself disgustedly referred to impeachment as a "scarecrow."

Invoking one of the possible allegations that is Topic A today, Rehnquist wrote, "from that time until the present, impeachment has been confined to charges of flagrant abuse of office -- perjury, bribery, and the like -- and not employed as a basis for challenging judicial rulings on legal issues."

The Starr report accuses Clinton of perjury, obstruction of justice, tampering with witnesses and abuse of power, relative to his relations with Lewinsky.

If impeachment becomes a reality, the Constitution leaves it to the House of Representatives to bring articles of impeachment, like an indictment, against the president. The Senate then would stage the trial and decide whether to acquit or convict.

Yale University law professor Stephen Carter, who has used "Grand Inquests" in his classes, said yesterday that Rehnquist presents an engaging historical account, but "you can't look at a book by a justice who is trying to write a popular history and imagine what he would do in the [current] situation."

Rehnquist, 73, has another connection to impeachment history. He was an assistant attorney general in the administration of President Richard M. Nixon and joined the high court as a Nixon appointee in 1972. The following year, Congress would make its first serious effort since the Andrew Johnson impeachment to remove a president. Nixon, under siege because of the Watergate scandal, resigned after the House Judiciary Committee voted to recommend impeachment but before the full House could act.

Rehnquist declined a request to discuss any guideposts in history for current times. In a 1992 C-SPAN interview that has been rerun because of the interest in the subject, Rehnquist emphasized how an impeachment overtakes the country and makes it impossible for anyone -- most specifically Congress -- to do much else.

In answering questions this week on his newest book, about intrusions on civil liberties in wartime, Rehnquist said he wrote it mostly during the court's summer recesses. He said he received a $90,000 advance for the book, which his editor said will be in bookstores today.

"All the Laws But One," published by Knopf, is devoted in large measure to President Abraham Lincoln's suspension during the Civil War (1861-65) of the writ of habeas corpus, which prisoners use to challenge their cases. Rich in the history of wartime dilemmas, the book opens with the somber mood of the country as Lincoln left his home in Springfield, Ill., for his Washington inauguration in 1861. Rehnquist examines violations of liberties through all the nation's other declared wars as well, explaining, justifying and raising some questions.

Like other historians, Rehnquist concludes that constitutional protections were not an overriding concern for wartime presidents. But he writes, "The laws will thus not be silent in time of war, but they will speak with a somewhat different voice."

© Copyright 1998 The Washington Post Company

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