Mr. Chief Justice William Rehnquist
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MARGARET WARNER: Stuart, what else do we need to know about this man that you think will affect how we conduct this trial?
STUART TAYLOR: Well, you cover it pretty well. I think the top of it is – he’s a very smart man – he’s no nonsense – as Jeff recently wrote in the New Yorker. He runs a poker game that includes some interesting players, and the idea is let’s play the poker, no nonsense. The one quibble I might have with what we just heard was the word “stern task master.” Yes, he runs the court on tight schedule but he is liked and regarded as very fair in dealing with that by his colleagues.
I well remember Justice William Brennan, the late justice, one of the great liberals and the polar opposite ideologically of Rehnquist. I went to him after a bitterly, bitterly divided partisan ideological debate that led to Rehnquist’s confirmation as chief justice in 1986, and I asked Justice Brennan, what do you think of it? “I’m just delighted. He’s such a wonderful guy. He’ll be fair.” Now, Brennan wasn’t particularly going to miswarrant Berger either. That might have been part of it. But I think he’s in a very different forum than he’s ever been in before because although when he brings down the gavel in the court and says counsel, your time is up, they salute, and they march away, and the other justices don’t challenge him on things like that. But in the Senate he can be overruled by 51 Senators on anything he does. And the most interesting thing for me watching him will be this. Will he try and set an aggressive tone in ruling, for example, if somebody wants censure, if there’s an argument over what evidence should come in, will he say in a clear and forceful way, well, here’s what I think and hope they don’t overrule him at the risk of
(a) being repeatedly overruled or
(b) say winning by party-line votes, and looking like he’s on one side, or will he just sit back, take a passing deferential – and kick everything to the Senators for resolution in the first instance? I’m not sure what he’ll do.
MARGARET WARNER: Jeffrey, either answer that question or give us your sense of how much of his style and his background is going to transfer to this very unusual proceeding for him.
JEFFREY ROSEN: Stuart’s question does seem like the interesting one, and in some sense his own views on impeachment may not matter that much. We learn from his books that he seems to think that impeachable offenses look very much like what the president’s lawyers suggest. They have to be crimes against the state. And he’s quite critical of the Johnson impeachment for actually lowering the bar and for threatening to remove a president from office for partisan reasons. On the other hand, everything in his juris prudence suggest that he won’t impose this view on the Senate. He’s written that impeachment is primarily a political matter that should be decided by the Senate and shouldn’t be second guessed by judges. He embodies a judicial revolution dedicated to the principle that political bodies – not courts – should make law and that at every turn judges should separate their political instincts from their judicial inclusions, and defer to the political branches. So if all this is correct, then the answer to Stuart’s question may be that he will not impose himself. He’ll resist the urge to make controversial rulings on evidence and ask the Senate to decide in the first instance. I was struck in the course of doing some reporting for this piece that in the one trial over which he presided in 1984 -
MARGARET WARNER: That’s important to point out. He’s never been a trial judge, but he once just took a flyer at it.
JEFFREY ROSEN: He did, and this is a historical event. It was routine during the 19th century but the tradition fell out of practice until 1984, and Rehnquist thought it would be refreshing to preside over a trial, much more three-dimensional, he said, than the Supreme Court, which can be very arid, so he went down to Richmond, and he did quite a good job. The lawyers for both sides told him was fair and efficient. He made a little glitch. He asked for the first witness to be called before the jury had returned to the box, but that was a small thing, but his every instinct to the lawyers’ surprise, to some degree, was to admit as much evidence as possible and let the jury decide. He resisted an effort to short-circuit the trial on a summary judgment and he really was insistent that the jury fulfill its responsibility. If he takes the same position in the Senate, then the president’s lawyers may be disappointed, as may be the Republicans, if they’re counting on Rehnquist to save them from the costs of a protected trial.
MARGARET WARNER: Do you answer your own question the same way that he’s more likely to be more of sort of a referee but not the presiding judge who just immediately rules on questions of evidence, rules on anything that comes up, that he’d be more likely to defer?
STUART TAYLOR: I’m not sure. I have a little different perspective than Jeff in two senses though. One is although clearly he doesn’t like political partisan impeachments, you get that from his book – he thought that if – and he didn’t like the Andrew Johnson impeachment. He thought that if that had succeeded, the presidency would have been weakened. It’s not at all clear to me that he would see this case as being in that category, this case where the allegations, after all, include, you know, federal crimes for which people go to prison for a long time. Andrew Johnson was accused of nothing of the kind. It was a clear, naked policy. There’s no policy debate at all underlying this. I mean, the other thing is – let’s separate substance from procedure. Whatever he might want to happen in the end, suppose the president’s side decides that they want to call Lucien Goldberg to talk on and on about which – and suppose that under a normal trial I believe this would be clearly irrelevant to the criminal proceeding. Will Rehnquist say, well, fine, you want her, you got her, or will he say, let’s set some limits here, or will he leave it to the Senate? That, to me, is where it gets most interesting.
MARGARET WARNER: But under the impeachment rules that have been laid out. Isn’t the Senate going to make those decisions anyway?
JEFFREY ROSEN: Rehnquist can in the first instance decide himself, or he can refer it to the Senate to decide without opposing his own view. He’s quite critical of the Johnson Senate. He said the reason that the trial took months longer than anyone expected was because the Senators insisted on their prerogative to argue about the contestability of every bit of evidence. Now here the personality of the chief justice may be quite important. It’s not hard to imagine Rehnquist’s rather grandiose predecessor. We saw before Warren Burger asserting himself and making contested rules of evidence and writing long memos designed to persuade the Senate to defer to his authority, and they will defer to the chief justice because he carries a lot of weight, but Rehnquist, by matter of temperament and also juris prudential conviction I would imagine on the controversial questions, not on everyone who make many rules of evidence, but on questions like who should be heard and ultimately what is an impeachable offense, I would assume he would defer to the Senate and not reveal his own views.
MARGARET WARNER: In his book, which you have right there, Stuart, does he write about what he thinks is the proper role for – or can you glean what he thinks is the proper role for the presiding officer in this – in a presidential impeachment?
STUART TAYLOR: I’ll answer quickly since I think Jeff knows the book better than I do. I’ve only skimmed it. I think he saw that Chief Justice Solomon Chase, if that’s how you pronounce it, was (a) tried to be forceful and (b) had it thrown back in his face, and the Senate kind of overruled him again and again. I don’t think he wanted that to happen. I think whatever else he wants to happen he doesn’t want in the end to look as though they didn’t take him seriously, they didn’t defer to him, or as though he clearly took sides. Within that limit I would think he would see the chief justice’s role as trying to add to the dignity and he likes things to happen fast. I don’t think he wants to be here trying this case in March.
JEFFREY ROSEN: I was so struck by the fact that he used the words when he entered the Senate chamber – they were nearly identical to those that he quotes Chase as using in the Johnson impeachment. I attend the Senate in obedience to your notice and am now ready to take the oath. This is a man who’s so conscious of the president — he also notes in his book that Chase – when he announced the acquittal of the president, after polling each Senator, used the very same words that Aaron Burr had used in announcing the acquittal of Justice Chase – this is a different justice.
MARGARET WARNER: Different justice.
JEFFREY ROSEN: In 1805 – 2/3 having not voted to convict but the impeachment articles are rejected, so – so conscious of president, so wonderful to see him actually attending to all that, and I can’t imagine, though, that he would tell us his substantive views on impeachment.
STUART TAYLOR: And I don’t think you’re going to see him saying case dismissed either.
MARGARET WARNER: No, not his role.
STUART TAYLOR: Unless there’s a vote and he says, well, they voted to dismiss it.
MARGARET WARNER: Let’s shift to what we can expect tomorrow. The House managers begin laying out their case. Stuart, what are the most telling points we should be looking for, we should be expecting?
STUART TAYLOR: I don’t think there will be anything new to people who followed their earlier presentations, except it’ll be more detailed, it’ll be more polished, and it’ll be the best chance they will ever have to do something they’ve failed to do so far, which is persuade the American people that maybe the president should actually be – there will be more people watching. Henry Hyde, the chairman, will lead off with the brief kind of theme setting how serious this is, how important it is, the rule of law, and then they divide it up into teams, and will spread over two or three days perhaps the first – first facts – a bunch – three or four of them emphasizing the chronology. I think they will try and get people into the story line. This isn’t just about an isolated event here, an isolated event there. Look what he did then and look why he did it.
Why did Vernon Jordan start working hard to get her a job on December 11th? Because that was the day the judge ruled he could question her. That’s why that sort of thing. Then they’ll go to the law of perjury and obstruction of justice to try and prove that the president has committed those crimes to try and disprove all the arguments we’ve heard from the president’s lawyers and others that nobody would ever get prosecuted for that, and then the law of impeachment and then a thematic closing – by Hyde perhaps and others.
MARGARET WARNER: And do the president’s lawyers – they’ll be sitting there tomorrow, correct? Do they have any role whatsoever? I’m not even sure if I know they’re going to be sitting there, but I assume they will.
JEFFREY ROSEN: They will be. The White House is so cagey on this matter that when I asked them this question a few hours ago, they would confirm that, indeed, there would be lawyers, probably Charles Ruff, Gregory Craig, and David Kendall, and maybe some others, who we wouldn’t learn about until tomorrow, but they wouldn’t say much more than that. And we know that under the rules of the Senate accepted the White House could have argued motions today. They chose not to do that, so one would assume that their role tomorrow would be largely silent. You can’t imagine them jumping up and objecting because it’s not really the time to talk about motions of evidence. Presumably they’ll be there, but they won’t have a central role until their presentation comes up after the 24 hours have elapsed.
MARGARET WARNER: Why didn’t the White House make motions or challenges based on many of the objections they raised today in their brief to the very constitutionality of these charges and the way they’re being put together?
STUART TAYLOR: I think they’ve telegraphed their major motions, which are throw the case out, it’s not impeachable, and it’s not – aside from that, the charges are drafted so poorly that we haven’t got adequate notice, and – but the Senate had made it clear when they voted for this elaborate procedure 24 hours for this-24 hours for that side – that the time for those motions to get seriously considered is after both sides have had their first 24 hours as much as they take, and then the White House it will be timely for them to make a motion to dismiss on whatever grounds they want and then simultaneously the House managers will make a motion for whatever witnesses they want and it’s set that the arguments over whether to have witnesses, the focused arguments, will come before the vote on whether to dismiss, which is a fairly ingenious procedure, I think, to sort of let everybody take their best shot at persuading before the Senate makes any important decisions and before they start the partisan brawl that will no doubt start sooner or later.
MARGARET WARNER: And it is telling that these procedures were all laid out either in Senate rules or the Senate compromise made by the Senators and not by the chief justices?
JEFFREY ROSEN: Indeed, and it – we can expect that when the important efforts to change a set of rules – for example – the resolution produced by Senator Harkin to open the proceedings and the deliberations, that too will be made by the Senate, and the chief justice won’t tell us what he thinks about that either.
MARGARET WARNER: And you’re talking here about the rule that actually says any debate must go on behind closed doors, and these are two Senators who want to open it up?
JEFFREY ROSEN: Adopted in the 19th century and perhaps not appropriate for today.
MARGARET WARNER: All right. Well, thank you both very much.
JEFFREY ROSEN: Thanks for having us.
STUART TAYLOR: Thank you.