United States: The Judicial Branch Has Obligations, Too

The Constitution says the Senate has the "sole power to try" an impeachment case. But it's not clear if the Senate therefore sirs, in effect, as a trial court while the Supreme Court serves as the court of appeals.

Some may say that this issue isn't relevant now, since the Court may not have the right of review unless the Senate decides to convict But the possibility of an appeal might change the way me Senate approaches the trial. Most important, the Senate would probably have to make the articles of impeachment more specific, because as framed by the House they are too vague to pass muster in a court of law. The Senate might therefore render its judgment on narrower grounds than it would otherwise.

Neither of the previous impeachment proceedings against a President shed much light on the question of whether a Supreme Court appeal is possible. The Senate acquitted Andrew Johnson in 1868, and Richard Nixon resigned in 1974 before articles of impeachment were considered by the full House.

Traditionally, the Court has avoided ruling on cases that involved what it considered to be political, not legal issues. But these impeachment proceedings have been so partisan that the Justices may feel obliged to step in and right the balance of power.

Chief Justice William Rehnquist, who is presiding over the Senate trial, has already hinted at these issues in his book. 'Grand Inquests, "which was about, he Senate impeachment trials of Justice Samuel Chase in 1805 and President Andrew Johnson In 1868. In the book, Mr. Rehnquist pointed Out that "the Framers were particularly concerned about the possibility 0f overreaching and bullying by the legislative branch -Congress -against the Other branches."

Moreover, the Supreme Court has routinely ruled in areas where there are few guidelines. And even in cases where .the court has not made a firm decision, It has kept open the possibility that it may intervene in future cases.

When Walter Nixon, a Federal judge convicted of making false statements before a grand jury, appealed his impeachment in 1993, the Supreme Court unanimously refused to set aside the impeachment. But Justices David Souter, Harry Blackmun and Byron White wrote separate opinions to point out situations in which articles of Impeachment and conviction by the Senate should be reviewed.

Justice Souter wrote that if the senate acts arbitrarily upon an inaccurate standard, then "in such circumstances, the Senate action might go so far beyond the scope of its constitutional authority, and the consequent Impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily require silence."

Justices White and Blackmun were more circumspect: they refused to say that the Supreme Court would never review an impeachment case in the future, in case, for example, the Senate should someday ignore its constitutional duty to try an impeachment case.

And in another case where many of the issues were similar to those in an impeachment trial, the Supreme Court did choose to Step in. In 1987, Congress voted not to seat Representative Adam Clayton Powell Jr, a Democrat from New York City, because he was accused of misuse of public money and other misconduct.

The Court overturned the vote, ruling that the House could exclude a member only it he was not of the requisite age, citizenship or residence.

And the Court has not hesitated in passing judgment in other cases what have involved political issues. The Court's landmark ruling in the 1902 case of Baker v. Carr led to the one person, one vote reapportionment cases that changed the composition of the nation's legislatures.

Yes. the Supreme Court has declined to overturn Senate convictions in trials of judges, as in the case of Walter Nixon. But the Justices may see the trial of the President as " matter of a different order of magnitude. Disrupting the Presidency has greater consequence than disrupting the. Federal courts.

Should Mr. Clinton be convicted, the country would be in crisis. The pressures on Mr. Clinton and the Court in drop an appeal would be enormous. But the Supreme Court has the power and obligation to review a conviction. Only If it exercises that option can the proper balance among the three branches of the Government be properly maintained.