WASHINGTON -- President Clinton's legal defense team is turning its attention to the Senate, where any negotiations over his fate are likely to take place: The courts almost certainly would refuse to get involved.
That view seems to be widely held by scholars, lawyers and judges.
Even so, hints have surfaced that Clinton's lawyers and other advisers might be considering a court challenge, as one way to head off a Senate trial on the two articles of impeachment approved last week by the House of Representatives.
Yesterday, Clinton's spokesman, Joe Lockhart, tried to discourage those hints.
"Any contention that there is something that has been agreed on, there is some strategy that is going to be pursued, is premature at best," Lockhart told reporters.
Under Senate rules, Clinton's attorneys apparently will have many options to try to negotiate a deal. But if they cannot reach a settlement, the Constitution might give the attorneys no other place to turn.
One explanation for Lockhart's caution yesterday appeared to be the widespread view that a court case would be a futile effort to shape the impeachment process. Two statements supporting that conclusion illustrate why the matter seems all but closed:
"The judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments."
"As a practical matter, the court has left the federal impeachment process for over two centuries to the complete, unreviewable discretion of the Congress."
The first statement is a part of a constitutional ruling by the Supreme Court, made nearly six years ago in the court's only ruling on the meaning of the Constitution's impeachment clauses.
Chief Justice William H. Rehnquist wrote that statement, speaking for a majority of the court. All the justices who supported that view are still on the court.
Rehnquist made the comment while carrying out his normal duties as a judge on the highest court. It was unrelated to the role he will play in the Senate, if Clinton is tried there: presiding officer at the trial.
In performing that duty in the Senate, Rehnquist would not be taking the other justices with him. The court as an institution has no role in impeachment, except to lend the chief justice when a Senate impeachment trial involves the president. Even though he is likely to take charge firmly, Rehnquist's rulings would fall within the confines of Senate rules and prerogatives.
The other statement, about Congress' "complete discretion" over impeachment, is by Michael J. Gerhardt of William and Mary Law School, a constitutional scholar and a specialist on impeachment. Gerhardt gained prominence this year as an adviser to both parties in the House during the impeachment proceedings.
Gerhardt has examined a variety of arguments about why the courts might find a way to become involved in impeachment and has rejected all of them as unpersuasive.
Only once in history has a federal court used judicial power to second-guess an impeachment. But that instance was wiped out by the Supreme Court's 1993 ruling in which the justices, by a 7-2 vote, virtually closed the courthouse door to impeachment challenges.
In 1992, a federal judge in Washington, Stanley Sporkin, overturned the Senate's conviction of U.S. District Judge Alcee L. Hastings of Florida on impeachment charges. Sporkin found that it was unconstitutional for the Senate to have delegated the trial of the charges to a committee.
But Sporkin never put his ruling into effect. It lost all its significance, even as a precedent, in January 1993, when the Supreme Court rejected another judge's impeachment challenge in the case of U.S. District Judge Walter L. Nixon Jr. of Mississippi. In Nixon's impeachment trial in the Senate, as in Hastings', a committee, rather than the full Senate, heard the evidence. Like Hastings, Nixon had gone to court to complain that it was unconstitutional for anyone but the full Senate to try an impeachment case.
Nixon's case, the first to reach the Supreme Court, resulted in a sweeping decision against judicial oversight of impeachment. Not limiting itself to Nixon's case, the court, in the opinion written by Rehnquist, spoke broadly about the core meaning of the Constitution's impeachment arrangements.
Not "a single word in the history of the Constitutional Convention," Rehnquist wrote, or in comments by the nation's founders, "even alludes to the possibility of judicial review in the context of the impeachment powers."
If the courts became involved when a president had been impeached, Rehnquist wrote in that decision, it could lead to prolonged uncertainty in the country.
The chief justice wrote: "Opening the door of judicial review to the procedures used by the Senate in trying impeachments would expose the political life of the country to months, or perhaps years, of chaos. This lack of finality would manifest itself most dramatically if the president were impeached."
Pub Date: 12/22/98