Part IX
The present Senate Trial of the Impeachment
of President William J. Clinton is being
conducted, and is otherwise proceeding,
unconstitutionally.
The present Senate Trial of the Impeachment
of President William J. Clinton is being
conducted, and is otherwise proceeding,
unconstitutionally. 1
Chief Justice Rehnquist's has
an interest in the cause. 1
Justice Rehnquist gives Indications
of encroaching on the Senate's Power
to try the Impeachment. 5
Proof that the Senate is the Judge
of all Matters of Law and Fact
in the Trial of the Impeachment,
and that the Chief Justice,
as the presiding Officer, is not
the Judge of a Court of Impeachment. 13
The Matter of the Oath
which Chief Justice Rehnquist took,
and which he also administered to the Senate. 21
The unlawful Interference in the Senate's Trial
of the Impeachment of President Clinton
by the Independent Counsel, Mr. Starr, and
the Chief Judge of the U.S. District Court
for the District of Columbia. 24
The Rules of Proceedings in the Senate
in trying Impeachments are unconstitutional
in respect to
the powers of the Presiding Office 26
Correction on the Point
of the "Role" of the Jury,
and a Commentary on
Chief Justice Rehnquist's book Grand Inquests 27
The present Senate Trial of the Impeachment
of President William J. Clinton is being
conducted, and is otherwise proceeding,
unconstitutionally.
The following analyzes with respect to the Constitution of the United States the conduct of the present Senate trial of the impeachment of President Clinton, as presented to the Senate by the House of Representatives, with the Chief Justice of the Supreme Court, William Rehnquist, presiding at the Senate trial. It is found, and is demonstrated in this part, that the Senate's trial of the impeachment is being conducted in an unconstitutional manner; and that, furthermore, Justice Rehnquist has an improper interest that clearly disqualifies him to preside at the Senate's trial of the impeachment, due to his adherence to, and actions in support of, the unconstitutional laws creating the Independent Counsel and the Marshal of the Supreme Court, actions amounting to the usurpation of the executive power of the federal Government.
Chief Justice Rehnquist's has
an interest in the cause.
Firstly, Chief Justice William Rehnquist has an interest in the cause of the impeachment of the President of the United States, Mr. Clinton, that requires as a matter of constitutional law that he either resign as Chief Justice, or be removed from office, and a new Chief Justice be appointed who is properly qualified to preside at the Senate trial of the impeachment.
Article I, Section 3 of the Constitution directs that the Chief Justice of the Supreme Court shall preside in the trial of an impeachment by the House of Representatives when the President of the United States is tried. However, the Constitution requires that the Judges of the Courts of the United States, including the Supreme Court, shall assume no power other than the judicial power, except in the case of the Chief Justice presiding in the trial of an impeachment of the President of the United States; and therefore, the judges of the Courts of the United States shall not participate in any criminal prosecution, which is solely an office performed by the executive department of the Government, such as appointing prosecutors and defining their prosecutorial jurisdictions; nor shall the judges administer grand juries for purposes of making criminal investigations, as distinguished from enquiring of indictments preferred to them by a counsel for the United States; and that furthermore, the judges shall assume no jurisdiction of any criminal suits against officers of the United States, that is, persons holding office in the Government of the United States, as the House of Representatives is vested by the Constitution with the sole power of impeachment of officers for crimes, that is, for prosecuting officers for crimes, and the Senate is vested with the sole power of trying all impeachments. These directives and requirements of the Constitution, when correctly observed, would ensure that the Chief Justice, when presiding in an impeachment trial, will not have had any involvement whatsoever in creating and supervising a criminal investigation of the President of the United States, and prosecuting him for crimes before the House of Representatives that would result in an impeachment by the House of Representatives.
Yet, Chief Justice William Rehnquist undertook, in violation of the Constitution, to participate in the execution of the unconstitutional Ethics in Government Act, and its Independent Counsel provisions in particular, by appointing, and by him alone appointing, the "judges" to the special "Division" of the Court of Appeals for the District of Columbia, which the Act created, and which in turn appointed the Independent Counsel, Mr. Starr, and prescribed (defined) his "prosecutorial jurisdiction," which has been the basis of the Independent Counsel's criminal investigation of Mr. Clinton and his prosecution of Mr. Clinton before the House of Representatives.(1) This activity of Chief Justice Rehnquist alone plainly disqualifies him to be an impartial presiding officer at the Senate trial of the impeachment of President Clinton. (Of course, this conclusion rest on the validity of this Author's proof of the unconstitutionality of the Independent Counsel statute. For the proof, see Parts I and II of the present treatise.)
We may presume that Justice Rehnquist, when choosing the judges for the "Division" of the Court of Appeal for the District of Columbia, had appointed those person who opposed or were otherwise biased against Mr. Clinton politically, or may even disliked him personally; for Mr. Rehnquist was appointed by President Nixon, who was, of course, a member of the Republican Party, which raises the question of a partisan interest against Mr. Clinton and his Democratic Party. The question arises: When choosing the so-called "judges" for the special "Division," did Justice Rehnquist hold discussions with those persons with some understanding reached or shared to investigate or prosecute Mr. Clinton either maliciously, or otherwise with the object of getting him and his party out of power in the Government and getting their Party back in power, or to intimidate Mr. Clinton so as to cause him to make certain changes in his "foreign policy," such as to attack Iraq! Do we know what was the substance of any discussions Justice Rehnquist may have had with the persons whom he appointed to the Division. Whatever actually happened, and how would we ever find out the truth of the matter, a plain conflict of interest exists for the Chief Justice to have been involved in the appointment of the Independent Counsel, Mr. Starr, even though somewhat secondarily, or indirectly, but now presiding at the Senate trial of the impeachment of President Clinton, especially when the record of the "evidence" against Mr. Clinton is solely that delivered to the House of Representatives by the Independent Counsel, Mr. Starr.
Also, the Independent Counsel (28 U.S.C. §§ 591-599) provides for the federal Courts to review the removal of an Independent Counsel by the Attorney General, and reinstate him in his office. So, Chief Justice Rehnquist exerted a supervisory influence over any consideration of the Attorney General to remove the Independent Counsel, Mr. Starr, again, by the Justice Rehnquist's support of the (unconstitutional) Independent Counsel statute.
Also, as before demonstrated (Part II and III), Justice Rehnquist issued an erroneous Supreme Court opinion in Morrison v. Olsen the Court opinion that held that the Independent Counsel statute is constitutional. As proved in Part III, Justice Rehnquist misrepresented the records of the Federal Constitutional Convention of 1787 in declaring that there is "nothing" in the records of the Convention "to suggest that the Framers [of the Constitution] intended to prevent Congress from having that power" namely, the power "to provide for interbranch appointments," such as a "Court of Law," being a part of the judicial branch of the Government, appointing an officer in the executive department or branch of the Government: as the Division of the D.C. Court of Appeals appointing the Independent Counsel, who is a "prosecutorial officer," according to the characterization asserted by Justice Rehnquist for the Supreme Court in that case opinion. A prosecutorial officer, if it is a counsel for the United States, is certainly an "executive officer," as he acts to execute the laws of the United States, by investigating and prosecuting delinquents for federal crimes. (See Part III of the present treatise for the proof of the misrepresentation.)
Also, Chief Justice Rehnquist has, in violation of the Constitution, complied with and carried out an unconstitutional statute empowering the Supreme Court to appoint (and remove) a marshal of the Supreme Court: an armed officer with the special and express statutory duty to execute all orders issued by the Supreme Court, thus usurping the executive power of the United States Government, taking the executive power away from the President. (See Part III.) Also, Justice Rehnquist exercised that unconstitutional power to act to compel, nor simply to command, Mr. Clinton to stand the Paula Jones civil suit the Supreme Court decision in the case Clinton v. Jones. Under the Constitution, the President is vested with the executive power; and, therefore, only he is to determine whether or not to execute a judicial writ; and all marshals, or officers for the execution of the judicial writs, are, by the Constitution, to be subordinate to the President, not to the Supreme Court. Of course, the President is bound by the Constitution to execute all lawful writs. For the President's faithfully execution of the law, and the lawful commands of the Courts, we are to rely, in the first instance, upon the President's oath; but if he fails to execute the lawful commands of the Courts (a crime of contempt of Court), he is accountable to the House of Representatives and the Senate by an impeachment process. Again, for a treatment of this matter, refer to Part III.)
Upon the foregoing considerations, the Chief Justice ought to consider the analysis of the Constitution given in this Treatise, and resign the office of Chief Justice of the Supreme Court in view of the conflict of interests pointed out in the preceding; and if he does not resign, the Senate ought to adjourn its trial of the impeachment until such time as a new Chief Justice is appointed who had not participated in the execution of the Independent Counsel statute.
We can now perceive a serious problem that arises when the Chief Justice of the Supreme Court violates the Constitution by supporting and executing the office of Independent Counsel, an unconstitutional office for prosecuting the President of the United States, and thereby takes on non-judicial powers and activity, indeed, powers to provide for the appointment of criminal prosecutors and their prosecutorial jurisdictions, including that of investigating and prosecuting the President of the United States for crimes, all in violation of the Constitution (the Tenth Amendment). For in the present case of Justice Rehnquist, the person who has acted, and continues to act to supervise, however directly or indirectly, a criminal prosecution of the President, is the same person who presides over the impeachment trial of the President. Indeed, since the Supreme Court has usurped the executive power, by the Court's sole control of an armed marshal (28 U.S.C. § 672), who is in effect the supreme Marshal, being the Supreme Court's marshal, the Supreme Court has in effect assumed the power as the supreme executive magistrate of the United States; and therefore, the Chief Justice Rehnquist would preside over a criminal trial of Mr. Clinton in a court of criminal jurisdiction, should Mr. Clinton be prosecuted by, for instance, the Independent Counsel, and would compel the execution of a judgment against him. So, the Chief Justice, by his assumptions of powers, acts as a prosecutor, judge, and executioner, which is highly improper, to say the least.
Justice Rehnquist gives Indications
of encroaching on the Senate's Power
to try the Impeachment.
Secondly, the Chief Justice of the Supreme Court, when presiding over the Senate's trial of the impeachment of the President of the United States is not vested by the Constitution with a power to determine any issue in law that may arise in the trial; and, therefore, his duty as the presiding officer is limited to conducting the trial according to the rules of proceeding for the trial as determined solely by the Senate (Article I, Section 5), again, the Senate composing of the Senators only, not including the Chief Justice (Article I, Section 3.)
Yet, there are indications that Chief Justice Rehnquist, more or less consistent with his actions in support of the unconstitutional Independent Counsel statute, and his usurpation of the executive power of the Government, has acted to assert and exercise a power to judge matters of law, and thereby usurp the Senate's power to determine the issues of law in the trial.
Firstly, when Justice Rehnquist originally appeared before the Senate at the start of the trial, he announced before he took an oath,
"Senators, I attend the Senate in conformity with your notice for the purpose of joining with you for the trial of the President of the United States. And I am now ready to take the oath."
The Constitution, however, does not declare nor direct that the Chief Justice shall be on oath or affirmation when presiding at the impeachment trial. The Senate could, and should, make a rule requiring the Chief Justice to take an oath of office for presiding at the trial; an oath promising to preside impartially over the trial according to the rules of proceeding determined by the Senate. (But the oath administered to Chief Justice Rehnquist at the start of the trial is a wholly different oath, as discussed later in this part.) Also, the Chief Justice is to be bound by oath or affirmation "to support the Constitution of the United States." However, the judges of the Courts of the United States, including Chief Justice Rehnquist, evidently never took that constitutionally required oath, as discussed in Part III. That is another ground for disqualifying Justice Rehnquist from presiding at the present Senate impeachment trial. Surely, the presiding officer of the Senate impeachment rial ought to be bound by an oath pure and simple, "to support the Constitution of the United States," as Article VI of the Constitution requires, and as the Senators have all sworn.
Justice Rehnquist announcement that he "attends" the Senate "for the purpose of joining" with the Senate for the trial of the President of the United States is a bold attempt to assert and establish a power to decide matters of law in the trial, and even possible matters of fact in issue. The word "join" conveys the meaning of uniting, thus uniting or joining Chief Justice Rehnquist with the Senate for the trial. So, Chief Justice Rehnquist declared in effect that he and the Senate jointly united together will try the President. But this relationship between the Chief Justice as the presiding officer, by the Constitution, and the Senate, in the trial of the impeachment of the President of the United States has no foundation in the Constitution, and violates the Tenth Amendment. The Senate is vested by the Constitution with the sole power to try the impeachments of the President:
"The Senate shall have the sole Power to try all Impeachments." (Article I, Section 3)
And,
"The Senate of the United States shall be composed of two Senators from each State, for six years; and each Senator shall have one Vote." (Article I, Section 3.)
Justice Rehnquist also declared several times, during the first proceedings of the trial, when the impeachment prosecutors ("managers") of the House of Representatives presented their case, that: "The Senate will convene as a court of impeachment." This reads like an order commanding the Senate; which ought to be rejected. The Chief Justice is not vested by the Constitution to command the Senate. Moreover, the idea that the Senate is a "court of impeachment" is wrong, and is a further sign of assumption of power on the part of Justice Rehnquist to determine issues of law in the trial, as the judge of a court. Said Blackstone, in his Commentaries on the Laws of England,
"A court is defined to be a place where justice is judicially administred." (III, Ch. 3, p. 23)
Also, the oath which Chief Justice Rehnquist administered to the Senate obligates the Senators (and the Chief Justice coequally) to "do impartial justice, again, the character of a court, as defined by Blackstone, which definition was the evident meaning of the word intended by the People who ordained and established the Constitution. There is, however, no plain declaration in the Constitution that the Senate's trial of impeachment pertains to a matter of administering justice; for Article I, Section 3 expressly provides that the party convicted by the Senate shall "be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." Also, according to the Constitution, "Judgments in cases of Impeachment shall not extend further than to removal from Office and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States (Art. I, Sec. 3). These clauses indicate that the purposes of the impeachment and the Senate trial of the impeachment is limited to that of removing a person from office who, in the Senate's judgment, has committed a high crime or misdemeanor, and therefore, is unfit to be holding office under the United States at least.
The conviction by the Senate and the removal of the party from office, and disqualifying him from holding in the future any office under the United States, ensures in the judgement of the Senate, two thirds present concurring, that the persons holding federal office are trustworthy for the faithful execution of the laws and the due administration of justice, while at the same time, makes the party convicted liable (legally bound) and subject to indictment, trial, judgment, and conviction, according to law (Art. I, Sec. 3 of the Constitution). But by such action the Senate does not administer justice; as that is the power and duty of the Courts of the United States, or a particular State, depending on the federal or state jurisdiction, respectively. As the preamble of the Constitution declares in part the object "to establish Justice," we are naturally obliged to consult the established definition of justice and courts given by Blackstone's Commentaries, to determine the evident intentions of the People who ordained and established the Constitution as to the character of the Senate when sitting to try an impeachment.
It is clear from Blackstone, Book I, Chapter 1, that jus means right, and that justice is the upholding of what is right. According to Blackstone (Book III, Ch. 1, p. 2):
"The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, ..."
In Book I Blackstone wrote of
"... the right of every Englishmen of applying to the courts of justice for redress of injuries. ... and have justice and right for the injury done to him, ..." (I, Ch. 1, p. 137)
As for public wrongs, or crimes and misdemeanors, Blackstone refers to the "courts of criminal jurisdiction" as the courts that administer justice in cases of criminal wrongs, "wherein offenders may be prosecuted to punishment." (IV, ch. 19, p. 255) The justice in these cases is uphold and protecting the public rights.
Now, in regards to the method of parliamentary impeachment, Blackstone explained that the House of Commons is the proper authority to have the power:
"... it may happen that a subject [a person who owes allegiance to the king], intrusted with the administration of public affairs [that is, an officer of the government], may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either dares not or cannot punish. Of these the representatives of the people, or house of commons, cannot properly judge; because their constituents are the parties injured: and can therefore only impeach. But before what court shall this impeachment be tried? Not before the ordinary tribunals, which would naturally be swayed by the authority of so powerful an accuser. Reason therefore will suggest, that this branch of the legislature, which represents the people, must bring it's charge before the other branch, which consists of the nobility, who have neither the same interests, nor the same passions as popular assemblies. ... It is proper that the nobility should judge, to insure justice to the accused; as it is proper that the people should accuse, to insure justice to the commonwealth...."
(IV, Chapter 19, "Of Courts of a Criminal Jurisdiction," page 258.)
So, from these passage alone one might suppose that the Senate is a "court of impeachment," as Justice Rehnquist asserted. However, there is a vital distinction between the British Constitution and the Constitution of the United States in the matter of the trier of the impeachment. For under the British Constitution, as expounded by Blackstone, the House of Lords, "the high court of parliament," is "the supreme Court in the kingdom," and included in that capacity, the lords are "the supreme court of criminal jurisdiction." (IV, Ch. 19, p. 256) The judgments of that court extend to the punishment for the criminal offense, according to law, the upholding of the public rights, by enforcing the criminal laws, including inflicting the punishments. That is the business of the courts of criminal jurisdiction the administering of justice.
So, it follows that the Senate of the United States is no court of impeachment, as Justice Rehnquist has declared, but erroneously; nor can he join such a court of impeachment, as a presiding judge. The Constitution does not characterize or call the Senate a court, or court of impeachment. Indeed, Article III of the Constitution expressly provides for "one supreme Court," and "such inferior Courts as the Congress may from time to time ordain and establish." So, the Senate can not be the supreme Court, not even in cases of impeachment; for the supreme Court is that Court of which Justice Rehnquist is the Chief Judge; and the Senate cannot be an inferior Court, as the Senate is established by the Constitution, not by the Congress. Therefore, by declaring the Senate to "convene as a court of impeachment," Justice Rehnquist acted in effect to declare the Senate a court, and a court with which he has also proclaimed to join, and by implication, to assume power to decide questions of law in the proceedings of this court, by so joining and presiding over the court, as a judge presides in a court.
By declaring the Senate a "court of impeachment," Justice Rehnquist acted in effect also to create a power for the Supreme Court of the United States, of which he is Chief Justice, to hear and determine appeals from the proceedings of the Senate's trial, as to reverse a judgment of the Senate, or to rectify errors in the Senate's judgment, say in respect to matters of law in issue, and perhaps even more boldly enough, matters of fact in issue. Remember too, the Supreme Court has usurped the executive power of the federal Government, by its marshal an armed officer and supreme marshal for executing all of the Supreme Court orders. So, the Supreme Court by its assumption of power could compel the obedience to its decisions to hear and determine appeals from the proceedings of the Senate's trial of the impeachment of the President.
Another instance of the Chief Justice acting to usurp portions of the Senate's power to try the impeachment, is the practice he is making in which he receives requests from the "majority leader of the Senate" and then declares "it is so ordered." This is assumption of power to issue orders. It would be proper, however, if the presider officer, Chief Justice, puts all request to a vote and determination of the Senate, whereupon the Senate does the ordering. (Or he could declare, "without objections, it is the order of the Senate to ...")
Another sign of the Chief Justice encroaching the Senate power to try the impeachment came on Day 2 of the trial, during a segment of the presentation of the House of Representatives' case for impeachment of President Clinton that was given by Representative Bob Barr, when Senator Harkin of Iowa voiced objection to Representative Barr's characterizing the Senate's "responsibility" or "job" in the impeachment trial as "jurors," and the "triers of the fact." Mr. Barr stated:
" ... The process facing you as jurors of fitting the Federal law of obstruction of justice and of witness tampering and of perjury into the facts of the case against President William Jefferson Clinton ... I simply make the point, of which we are all aware, but I think as we begin or, in anticipation of your process of sifting through all of this procedure: all of this evidence: all of this law: to keep in mind that our job in the house [which] we [had to] approach is necessarily very different from the way you approach your job as jurors as triers of fact.
We, in fact, presented to the House of Representatives through the work of our Judiciary Committee, a large volume of evidence, presented to us [by the Independent Counsel Mr. Starr], and through us, to the House of Representatives, as the charging body, not the trier of fact body, that is essentially summarized and discussed throughout the words of through the opinions of the Independent Counsel, as akin to the chief investigative officer in a grand jury in federal district court, [and] through the words of many expert witnesses, as it were, who placed all of that in context.
We did not want to usurp your duty, your responsibility, given to you by the Constitution, as the trier of the fact. We are not that presumptuous. It is your responsibility. It is your solemn duty, to be the trier of fact. That is very different from our solemn duty, which I believe the House performed admirably, in essentially reaching the conclusion that there is probable cause to convict the President of perjury and obstruction of justice.
And we did so in a way that is mindful and respectful of your responsibilities, that carried out our responsibilities, and that is familiar to citizens all across this land, because it is essentially the same process that operates in federal courts where you see also, as here, a very clear distinction between the body that charges the crime, the grand jury, and the body that tries the crime, that is the jury, in this case, the Senate of the United States of America. ...
... What we have before us, Senators, and Mr. Chief Justice, is really not complex: critically importance, yes; but not essentially complex. Virtually every federal or state prosecutor, and there are many distinguished such person on this jury [the Senate], have prosecuted such cases of obstruction [of justice] before in their careers, perhaps repeatedly. Cases involving patterns of obstruction compounded by subsequent coverup / perjury. President's lawyers may very well try to weave a spell of complexity over the facts of this case. They may nit pick over the time of a call, or parse a specific word or phrase of testimony, much as the President has done.
We urge you, the distinguished jurors of this case, not to be fooled. Use - " [interrupted by Senator Harkin addressing the Chief Justice.]
Said Senator Harkin:
"Mr. Chief Justice, I object to the use and the continued use of the word "jurors" when referring to the Senate, sitting as triers in a trial of the impeachment of the President of the United States. Mr. Chief Justice, I base my objection on the following:
First, Article I, Section 3 of the Constitution says the Senate shall have the sole power to try all impeachments not the courts, but the Senate. Article III of the Constitution says the trial of all crimes, except in the cases of impeachment, shall be by jury a tremendous exculpatory clause when it comes to impeachment. Next, Mr. Chief Justice, I base my objection on the writings in The Federalist Papers, especially No. 65 by Alexander Hamilton, in which he is outlining the reasons why the framers of the Constitution gave the Senate the sole power to try impeachments. ... "There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it." ... Next, Mr. Chief Justice, I base my objection on the 26 rules of the Senate, adopted by the Senate, governing impeachments. Nowhere in any of those 26 rules is the word "jury" or "jury" every used. Next, Mr. Chief Justice, I base my objection on the tremendous difference between regular jurors and Senators sitting as triers of an impeachment. ... Regular jurors cannot overrule the judge. Not so here. Regular jurors do not decide what evidence should be heard, the standards of evidence, nor do they decide what witnesses shall be called. Not so here. Regular jurors do not decide when a trial is to be ended. Not so here. Now, Mr. Chief Justice, it may seem a small point, but I think a very important point. I think the framers of the Constitution meant us, the Senate, to be something other than a jury. ..."
Upon an objection of a sort, by Senator Gregg, calling "for the regular order," the Chief Justice responded by stating, addressing Senator Harkin:
Chief Justice:
"Yes. I think you may state your objection, certainly, but not argue. The Chair is of the view that you may state the objection and some reason for it, but not argue it on ad infinitum."
After Mr. Harkin concluded his reason, about setting a wrong precedent, the Chief Justice then made what Representative Barr afterwards called a ruling. Chief Justice Rehnquist stated:
"The Chair is of the view that the objection of the Senator from Iowa is well taken, that the Senate is not simply a jury; it is a court in this case. Therefore, counsel should refrain from referring to the Senators as jurors."
Mr. Barr then resumed:
"I thank the Court for its ruling.
We urge you, the distinguished Senators sitting as triers of fact and law in this case, not to be fooled. We urge you to use your common sense, your reason, your very successful career experiences, just as any trier of fact and law anywhere in America might do. Just as does that other trier of fact and law, so too have each of - you have sworn to decide these momentous matters impartially. Your oath to look to the law and to our Constitution ..."
This exchange of views is significant; as clearly one of the impeachment managers for the House of Representatives endeavored to establish that the Senate's role in the trial of the impeachment of the President of the United States is that of a jury, limited to trying only the facts at issue.[*] Then the Chief Justice's declaration, "that the Senate is not simply a jury: it is a court," and that "Counsel should refrain from referring to the Senators as jurors," is a ruling from "the Chair," as Mr. Barr correctly observed, by stating "I thank the chair for its ruling." For the Chief Justice asserted a rule that the Senate is not simply a jury; it is a court, and a rule that "counsel should refrain from referring to the Senate as jurors." Thus, by Justice Rehnquist making those rulings, he acted to decide matters of constitutional law in the trial, thereby encroaching on the power vested in the Senate by the Constitution "to try all Impeachments." This point is demonstrated as follows. [* This statement, the "role" of the jury in a trial is "limited to trying only the facts at issue," is somewhat simplistic and also in error, which is rectified in a postscript for this Part IX, starting on page IX-27 herein, Correction on the Point of the "Role" of the Jury.]
Proof that the Senate is the Judge
of all Matters of Law and Fact
in the Trial of the Impeachment,
and that the Chief Justice,
as the presiding Officer, is not
the Judge of a Court of Impeachment.
Article I, Section 3 of the Constitution declares and directs that:
""The Senate of the United States shall be composed of two Senators from each State, for six years; and each Senator shall have one Vote. ... The Senate shall have the sole Power to try all Impeachments."
The words try and the object all impeachments are critical factors. To determine correct the meaning of those directives of the Constitution, as that which was certainly intended by the People who ordained and established the Constitution, we need, again, to consult Blackstone's Commentaries on the Laws of England. There we find that the terms probation and trial mean the same (Book III, Chapter 27, "Of the several Species of Trial," page 330). To try can mean, according to Webster's New World Dictionary (1957), "to put to the proof or the test." Said Blackstone, after discussing the pleadings stage of a civil suit, which establishes the issue, namely, the point which is affirmed on the one side and denied on the other, which is "either upon matter of law or matter of fact," and after discussing also the manner in which an issue in law is determined, which the judge of the court determines upon solemn argument and study,
"An issue of fact takes up more form and preparation to settle it: for here the truth of the matters alleged must be solemnly examined in the channel prescribed by law. To which examination, of facts, the name of trial is usually confined, which will be treated of at large in the two succeeding chapters." (III, Ch. 21, p. 324)
In introducing the several species of trial provided for by the common law, Blackstone mentioned the possibilities for groundless actions and unwarranted defences, and warned:
"... if therefore the fact be perverted or mis-represented, the law which arises from thence will unavoidably be unjust or partial. And, in order to prevent this, it is necessary to set right the fact, and establish the truth contended for, by appealing to some mode of probation or trial, which the law of the country has ordained for a criterion of truth and falsehood. ...
Trial then is the examination of the matter of fact in issue; of which there are many different species, according to the difference of the subject, or thing to be tried: ..." (id., 330)
In Chapter 23 Blackstone treats the matter of the trial by jury, and therein describes the oath taken by the jurors:
"When a sufficient number of persons impanelled, or tales-men, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence; and hence they are denominated the jury, jurata, and jurors, sc. juratores.
We may here again observe, and observing we cannot but admire, how scrupulously delicate and how impartially just the law of England approves itself, in the constitution and frame of a tribunal, thus excellently contrived for the test and investigation of truth; ... (III, Ch 23, p. 365)
Upon these passage from Blackstone we find that the term trial is usually confined to the examination of the matter of fact in issue, so that there must exist a general signification of trial, one which is not always confined to the matter of fact in issue. This point is reinforced somewhat by Blackstone's expression the "thing to be tried." Amendment VII of the Constitution of the United States, which declares and directs the right of trial by jury shall be preserved in suits at common law (as distinguished from suits in equity), adds:
"and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
So the thing which a jury tries is the fact in issue. But regarding an impeachment trial under the Constitution of the United States, Article I, Section 3 directs the thing which is to be tried by the Senate is the impeachment, "The Senate shall have the sole Power to try all Impeachments," and therefore, the thing to be tried is not confined to the fact in issue between the House of Representatives and the party impeached, such as the President of the United States, but extends to all of the matter charged upon the President by the impeachment. (See, for instance, Blackstone's discussion on Arraignment, Ch. 25, which is the stage of a criminal prosecution when the person indicted is called before the court "to answer the matter charged upon him in the indictment.") The impeachment by the House of Representatives is a formal accusation, or presentment, which alleges not only matters of fact, but also matters of law; and therefore, all of these matters comprise the whole matter charged upon the impeached party in the articles of impeachment. It is the articles of impeachment that are tried by the Senate, not merely the issue of the matters of fact. This deduction is confirmed by Blackstone. In discussing the method of parliamentary impeachment,
"... The articles of impeachment are a kind of bills of indictment, found by the house of commons, and afterwards tried by the lords; who are in cases of misdemeanors considered not only as their own peers, but as the peers of the whole nation." (IV, Ch. 19, p. 257)
So, it is plain, that the Senate, which by the Constitution is expressly vested with "the sole Power to try all Impeachments," not only tries the matters of fact in issue in an impeachment trial, but also the matters of law in issue: to try the whole matter of the impeachment. And by the Senate being invested with the sole power to try the impeachment of a President, the Chief Justice is not to assume or have any portion of that power. The word sole acts to exclude the Chief Justice from joining the Senate in the power to try the impeachment of a President, or otherwise to assume any power to determine issues of law in the trial. Also, as Senator Harkin astutely observed, Article III of the Constitution directs that "The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury." As he pointed out, the exception is an "tremendous exculpatory clause when it comes to impeachment." This certainly is adds to the proof that the Senate is not a jury, when sitting for the purpose of trying an impeachment.
Therefore, Mr. Chief Justice Rehnquist, in ruling on Senator Harkin's objection that the Senate should not be called a jury, encroached on the Senate's power to try all matters of the impeachment. Whether the Senate is a jury or both a judge and jury, so to speak, is a question of law which the Senate is to determine. Also, it is plainly improper for the presiding officer of the trial to direct the impeachment "managers," or speakers, for the House of Representatives as to what they shall state in presenting their case for impeachment. If the House of Representatives is of the judgment that the Senate is a jury to try only the matters of fact in issue, than that is their right to argue their case. The Senate, however, has their right to make their own judgment of that question of law that pertains to their power to try all impeachments.
The Chief Justice's other ruling that the Senate "is not simply a jury; it is a court in this case," is likewise wrong. Again, the Chief Justice has no power to determine the character and power of the Senate when sitting for the purpose of trying tries an impeachment of the President of the United States. Justice Rehnquist acted unconstitutionally to declare that the Senate "is a court in this case." That declaration is not law, or the sentence of the law! It is not a legal determination of the character of the Senate and any incidents thereto; as, for instance, the Chief Justice being the judge of this "court," with powers to determine questions of law, motions, and objections, pertaining to the matter of the impeachment. The Chief Justice, as the presiding officers, ought to conduct the trial according to the rules of proceeding made by the Senate, which rules ought to be made in support of the Constitution.
In regard to the question of whether the Senate is "a court," it should be mentioned that The Federalist, Paper No. 65, which Senator Harkin cited in his objection, interpreted the Senate as having a "judicial character as a court for the trial of impeachments." Of course, this interpretation tends to support the Chief Justice's ruling. However, this fact of The Federalist is not conclusive as to the true meaning of the Constitution, as demonstrated as follows.
The interpretation given in The Federalist, No. 65, does not support or prove that the Chief Justice has any power, as the presiding officer of the Senate, when sitting for the purpose of trying an impeachment of the President of the United States, to determine questions of law as to the extent of the Senate's power to try the impeachment, or the issues of law between the parties of the impeachment trial. Firstly, an interpretation of the Constitution, given in The Federalist is not the Constitution, but an interpretation of it. The Constitution does not characterize the Senate as a "court" or a "court of impeachment." Secondly, The Federalist, No. 65, does not venture any definition of the incidents to the Senate as a "court of impeachment," such as the powers of the presiding officer. We only have in the Constitution the directive that "Each House [of Congress] may determine the Rules of its Proceedings." This is certainly the power to prescribe the powers of the presiding officer in a trial of an impeachment.
Nor does The Federalist, No. 65, give any interpretation of the provision of Article I, Section 3 that directs that the Chief Justice shall preside in an impeachment trial when the President of the United States is tried; that is, the essay ventures no elaboration whatsoever of the power which the Chief Justice has when presiding in such a impeachment trial, other than to characterize the Chief Justice in such case as "the president of the court of impeachment." The essay considers a possible advantage of having the Supreme Court united with the Senate in the formation of the court of impeachment, to give some measure of "double security," but argues against such an idea. The Federalist added, however, that
"To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachment."
However, that essay does not define specifically just what are any of those "certain benefits."
As to the Senate's power, the essay said of the nature of the proceeding of an impeachment trial,
"... There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it."
But then, who are all of the judges? Only the Senators? The essay avoids a specific interpretation to that point. The essay does say:
"The model from which the idea of this institution [the impeachment and the trial thereof] has been borrowed pointed out that course to the convention. In Great Britain it is the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it."
So, the Senate decides upon an impeachment, according to The Federalist's interpretation. But again, does the Chief Justice, when presiding, join in the Senate decision making? The Federalist does not offer a clarification to this point; and instead, it tended to confound, by characterizing the Senate as a "court of impeachment."
Plainly, the Senators and the Chief Justice, who are to be bound by oath to support the Constitution, ought not to attempt an interpretation of The Federalist's interpretation of the Constitution, but instead, accept the limited clarity of the interpretation given in The Federalist essay, and read what it plainly states. The plain declaration of the Constitution is that the Senate shall try the impeachment, and the Senate shall be composed of two Senators from each State. Con-sequently, the Senate is not to include the Chief Justice also as a part of "the Senate." Neither is the Chief Justice the "President" of the Senate, when the Senate sits for trying the President of the United States. Most importantly, the Constitution does not declare that the Senate is a "court of impeachment," or a "court."
As to the "certain benefits" which the Chief Justice provides by presiding over the trial of the impeachment of the President, we may assume that those benefits, and the powers and duties of the presiding officer thereto, are those defined in the British "model" for the institution of the impeachment. Consulting Blackstone's Commentaries on the Laws of England again, but more extensively, the evident intent of the Constitution of the United States with respect to the power and duty of the Chief Justice as the presiding officer in the impeachment trial of the President is found, as shown as follows:
According to Blackstone, in impeachment cases when a peer is impeached for treason (by the House of Commons), a "lord high steward" is usually appointed to preside over the trial in the house of lords, "for the greater dignity and regularity of their proceedings" proceedings in "the high court of parliament," the house of lords being "the most high and supreme court of criminal jurisdiction" (IV, Ch. 19, p. 256). The house of lords consists of the lords spiritual, as arch-bishops and bishops, and the lords temporal, consisting of all the peers of the realm, by whatever title of nobility, namely, dukes, marquisses, earls, viscounts, and barons (Book I, Ch. 2, Sec. II). The presiding officer of the house of lords (and also in the house of commons) is called "the speaker" which is an officer established "for the dispatch of business." Said Blackstone,
"The speaker of the house of lords is the lord chancellor, or keeper of the king's great seal; whose office it is to preside there, and manage the formality of business. The speaker of the house of commons is chosen by the house; but must be approved by the king. And herein the usage of the two houses differs, that the speaker of the house of commons cannot give his opinion or argue any question in the house; but the speaker of the house of lords may." (I, Ch. 2, Sec. VI)
The "business" of the house of lords can be that of administering a trial, when the lords sit as the court of impeachment, or, as we shall see, when attending the court of lord high steward (a different court of criminal jurisdiction), besides the business of making laws. Though the above general definition of the office of the speaker is given appropriately in Blackstone's exposition of the parliament, first in regards to the legislative power, that definition is plainly general. The lord chancellor, incidentally, is appointed by the king, and is the presiding judge of the high Court of Chancery, known especially as a court of equity." (III, Ch. 4, Sec. VIII.)
Blackstone's definition of the office of the speaker of the house of lords, to "manage the formality of business," extends, of course, to the business of a trial of an impeachment, at least for cases when a lord high steward is not appointed to preside. In those cases, the speaker does not decide questions of law, or any other question; but he may argue or give his opinion on any question, as the above quote from Blackstone establishes. With this finding, we may now return to the matter of the "lord high steward," usually appointed, evidently, as the presiding officer of the house of lords, when the lords sit as the supreme court of criminal jurisdiction, the high court of parliament, in the case of an impeachment of a peer for treason. (Clearly, the provision of the Constitution of the United States directing the Chief Justice to preside at the trial of the impeachment of the President of the United States is modelled somewhat from the British practice of a lord high steward appointed in special cases of impeachment to preside at the trial administered by the house of lords.) Without more information from Blackstone, we may deduce that the lord high steward has no more power than the speaker of the house of lords; for the speaker would preside over the trial of other cases of impeachment and other criminal cases.
However, the matter is even further clarified, and the deduction confirmed, by Blackstone, when considering his discussion of the trial of an indictment, not impeachment, of a peer (a nobleman), that is, a peer who is indicted for treason, felonies, or misprisions, indicted by a grand jury, of course, not by the house of commons. For such cases a "court of the lord high steward" is instituted for the trial of the indictment; but, according to Blackstone, only when the parliament is in recess. The lords are summoned by the lord high steward (a special officer who is appointed by the king) to attend and try the indicted peer, says Blackstone. (IV, Ch. 19, p. 258) If the Parliament is in session when the indictment is presented, the indicted peer is tried, not by the court of the lord high steward, but by the high court of parliament, namely, the house of lords, according to Blackstone. In either case, the lords are involved in the trial, and a lord high steward is appointed for that purpose, but with the following difference. In the case of the court of high steward (trial of indicted peers during the recess of parliament) the lord high steward is the sole judge in matters of law, and the lords are the triors of the matters of fact. But when the indicted peer is tried during the session of the parliament, with the lords sit as the high court of parliament, the appointed lord high steward presides "to regulate and add weight to the proceeding, but only in the nature of a "speaker pro tempore," or "chairman of the court," said Blackstone, where he is not "the judge of the court." In that case, the lords are the judge of both matters of law and matters of fact, according to Blackstone. To quote from Blackstone fully on these distinct courts for trying an indicted, not an impeached, peer:
"During the session of parliament the trial of an indicted peer is not properly in the court of the lord high steward, but before the court last-mentioned, of our lord the king in parliament [the high court of parliament]. It is true, a lord high steward is always appointed in that case, to regulate and add weight to the proceedings; but he is rather in the nature of a speaker pro tempore, or chairman of the court, than the judge of it; for the collective body of the peers are therein the judges both of law and fact, and the high steward has a vote with the rest, in right of his peerage. But in the court of the lord high steward, which is held in the recess of parliament, he is the sole judge in matters of law, as the lords triors are in matters of fact; and as they may not interfere with him in regulating the proceedings of the court, so he has no right to intermix with them in giving any vote upon the trial." (IV, Ch. 19, p. 260)
So it is, that the presiding officer of an impeachment trial in the house of lords is to manage the formality of the business, and for special cases, a special officer (a lord high steward) appointed for the greater dignity and regularity of the proceeding, but not to regulate the proceeding; as the word regularity has to do with conforming to rules, and to regulate, is to make the rules. Under the Constitution of the United States, the Senate makes the rules of their proceedings, so they regulate their proceedings, the Chief Justice then manages the formality of the Senate proceeding, for the greater dignity and regularity of the proceeding. Again, the articles of impeachment are tried by the lords, as distinguished from the lords being triors of matters of fact, when attending the court of lord high steward for the trial of indicted peers (when the parliament is in recess).
Therefore, it is concluded that the meaning of office to be performed by the Chief Justice when presiding over the Senate's trial of an impeachment of the President of the United States, as that intended by the makers of the Constitution, who certainly consulted Blackstone's Commentaries, is that the Chief Justice has no power to judge any matters of law, nor join in judging matters of fact; but instead, he presides to manage the formality of the business, according to the rules of the Senate, and provides a great dignity to the proceeding, inasmuch as the President of the United States is tried, a president pro tempore, so to speak, but without any voting power, though he may give his opinion or argue any question, if the rules of proceeding determined by the Senate permit so.
The Matter of the Oath
which Chief Justice Rehnquist took,
and which he also administered to the Senate.
Thirdly, there is the matter of the oath which was administered to the Chief Justice upon his attending the Senate for the trial of President Clinton, and the oath - the identical oath which he administered to the members of the Senate, to wit:
"Do you solemnly swear that in all things appertaining to the trial of the impeachment of William Jefferson Clinton, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God."
There was no public announcement in the trial explaining from whence came this oath. Who determined on it? Article I, Section 3 states that:
"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."
The Constitution does not declare the form of the oath, or exactly what conduct is to be promised by being on "oath or affirmation." Nor does the Constitution require that the Chief Justice shall be on oath, other than an oath to support the Constitution of the United States (Article VI). Upon investigation it is found that the above oath which Chief Justice Rehnquist took, and which he also administered to the Senators, is not in conformance with the Constitution.
1. As before demonstrated, the Senators are the judges of both matters of law and matters of fact in an impeachment trial under the Constitution. Therefore, the People who ordained and established the Constitution certainly intended that the oath to be administered to the Senators shall conform to both of the oaths taken by judges and jurors, respectively, of the courts of justice, as defined in Blackstone's Commentaries on the Laws of England. Those oaths are:
Judges: To "decide according to the law of the land."
(Introd., Sec. 3, p. 69)
Jurors: To "well and truly to try the issue between the parties, and a true verdict to give according to the evidence," where "evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other; ..." (III, Ch. 23, pp. 365, 367)
The law of the land in England included the unwritten, common law. But under the Constitution of the United States, there is no federal common law, as demonstrated in Part ___: no unwritten law of custom to be expounded or clarified by the Judges of the Courts of the United States. Accordingly, the oath evidently intended for the Senators, when trying an impeachment, one which would conform to the tenor of the Constitution, may be framed as follows:
I solemnly swear that I will well and truly try the impeachment, according to the Constitution of the United States, and the laws made in pursuance thereof, and according to the evidence of the matters of fact in issue.
But the oath administered to the Chief Justice, and by him, the same oath administered to the Senators, is to do impartial justice, which makes the Senators and the Chief Justice, conjointly, a court, and with unconstitutional implications, as before demonstrated; and in doing so, to do impartial justice in all things appertaining to the trial of the impeachment of Mr. Clinton. The word appertaining makes the oath resemble Rule 401 of the unconstitutional Federal Rules of Evidence, defining relevant evidence (see Part III). What appertains to the trial of William Clinton? Is it to be anything which the Chief Justice thinks proper to determine? The all things appertaining plainly broadens the matters to be determined in the trial of the impeachment of the President.
Finally, the oath taken by Justice Rehnquist, and administered by him to the Senators, places laws coequally with the Constitution, which violates the Constitution, plainly. For certainly, laws made not in pursuance of the Constitution ought to be disregarded. And just what are the "laws"? Will the Chief Justice rule and order that the laws include the so-called common law of the United States, or the "case law" decreed by the Supreme Court of the United States and the rulings of the Chief Justice? As demonstrated in Parts IV, V, and VI, the Constitution permits no federal common law. It is also significant that the Chief Justice took the same oath as the one which he administered to the Senators, which conforms to his proclamation that he attends the Senate for the purpose of joining with them for the trial of the President of the United States. [*]
Upon the preceding considerations, it is concluded that the oath taken the Chief Justice and administered (by him) to the Senators is not in conformance with the Constitution of the United States. Therefore, the proceedings of the Senate trial are presently unconstitutional, and therefore, unlawful.
[* Chief Justice Rehnquist has authored the book Grand Inquests, which treats the impeachment power of the Constitution, and the Senate's trial of impeachments. A commentary on this book is given on pages 28-31 below.
The unlawful Interference in the Senate's Trial
of the Impeachment of President Clinton
by the Independent Counsel, Mr. Starr, and
the Chief Judge of the U.S. District Court
for the District of Columbia.
Another instance of the Federal Judiciary violating the Constitution occurred in regard to the recent action taken by the Independent Counsel to require Monica Lewinsky to submit to an interview, called a "debriefing," by the impeachment managers of the House of Representatives, or forfeit her protection of immunity from a criminal prosecution as granted to her by agreement with the Independent Counsel in exchange for her promised cooperation to provide information to the Independent Counsel as he may require of her. This interview proceeding, as ordered by the Chief Judge of the United States District Court (for the District of Columbia, presumably) upon an application, a so called "Emergency Motion," to the Court preferred by the Independent Counsel under his powers vested in him by the Ethics in Government Act, 28 U.S.C. § 594(a)(7), is unconstitutional.
1. The managers of the impeachment for the House of Representatives are empowered by the House of Representatives "to exhibit the articles of impeachment to the Senate and take all other actions necessary," in connection with the trial of the impeachment. (House Resolution 614, December 18, 1998.)
2. Under the Senate's Rules, and the Constitution, the managers could apply to the Senate for a rule to provide for such interviews preparatory to the presentation of witness, including an order compelling Miss Lewinsky to submit to an interview; for the Senate shall have the sole power to try the impeachment (Article I, Section 3).
3. But the managers instead circumvented the Senate, and requested the Independent Counsel to exercise his powers under the Independent Counsel statute, and induce Miss Lewinsky to submit to the sought-for interview, to be conducted by the Independent Counsel. Evidently, the Independent Counsel applied to the District Court for an order having the effect of executing one of the terms of the immunity agreement.
4. But the office of Independent Counsel is unconstitutional, as proved in Parts I and II of the present treatise, and therefore, the immunity agreement is illegal, as is the Independent Counsel's application to the Court. And, therefore, the District Court ought to have rejected the Independent Counsel's motion as not a legally application on behalf "of the United States."
5. Furthermore, the powers of the House managers, to take all actions necessary, are in connection with the trial of the impeachment, as is proper. The House resolution reads:
"Resolved, That Mr. Hyde, Mr. Sensenbrenner, Mr. McCollum, Mr. Gekas, ... are appointed mangers to conduct the impeachment trial against William Jefferson Clinton, President of the United States, ... and that the managers so appointed may, in connection with the preparation and the conduct of the trial, exhibit the articles of impeachment to the Senate and take all other actions necessary, which may include the following: ... (2) Sending for persons and papers, ..."
Therefore, if the managers want to interview a potential witness, and find it necessary to seek an order to command that person to submit to an interview, then the proper, lawful, and constitutional, procedure would be to move the Senate for a rule and order to that effect; as the Senate, by Article I, Section 3 of the Constitution, "shall have the sole Power to try all Impeachments." That "Power" necessarily includes the power to make the rules of the proceeding for the trial of impeachments, as indeed, Article I, Section 5, directs that each House of Congress "may determine the Rules of its Proceedings." The managers have no authority by the House resolution to apply to the Courts of the United States for such an order; as the Senate is that authority which has the sole jurisdiction of the impeachment, by Article I, Section 3 of the Constitution.
It is significant that the managers did not apply to the Courts; but they instead, sought the device of the Independent Counsel and the exertion his powers under the Ethics in Government Act, in pursuance of their objective to secure an interview with Miss Lewinsky. This violated the Constitution in regards to the Senate's sole power to try the impeachment, and violated their powers under the House resolution. Also, to take advantage of the power of the Independent Counsel is unconstitutional, since that office is unconstitutional.
This episode shows up again, how the unconstitutional office of Independent Counsel corrupts the constitutional proceedings of the federal Government.
The Rules of Proceedings in the Senate
in trying Impeachments are unconstitutional
in respect to the powers of the Presiding Office
The Rule VII of the Senate Rules of Procedure for Impeachment Trials, which are presently being followed by the Senate in the impeachment of President Clinton, is unconstitutional, in that the Rule gives the Presiding Officer the power to "rule on all question of evidence, ...,"; and a ruling of the Presiding Office "shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a vote be taken thereon." The rule declares that there be no debate on the ruling of the Presiding Office, if a vote on the ruling is taken.
Also, Rule VII directs that the Presiding Officer "shall direct all the forms of proceedings. Also, Rule V of the aforesaid Senate Rules vests in the Presiding Officer the power to make and issue "all orders, mandates, writs, and precepts authorized by these rules or by the Senate, ..."
Thus, these rules give the Presiding Officer substantial powers to join administering the trial of the impeachment. But plainly, these rules do not support the Constitution; for, again, Article I, Section 3 directs that the Senate shall have the sole power to try all impeachments, so that the Chief Justice, in the case of an impeachment of the President of the United States. that the Rule VII empowers the presiding office to make rulings that may stand as the judgment of the Senate, plainly substitutes the presiding officer for the Senate, in plain violation of the directive of Article I, Section 3. Surely, also, the intent of the Constitution is for the Senate to debate matters before resolving.
of the "Role" of the Jury,
and a Commentary on
Chief Justice Rehnquist's book Grand Inquests
The statement on page 13 of this Part IX that the "role" of the jury in a trial is "limited to trying only the facts at issue" is somewhat simplistic and also in error, which is rectified in this postscript.
Firstly, the word "role" is not a proper term for characterizing the power and duty of the jury in a trial.
Now, trial is "the examination of the matter of fact in issue," said Blackstone (III, ch. 22, p. 330). But the jury not only enquires into, and determines the truth of, the fact in issue, but also renders the verdict; and the verdict may be a general verdict, whereby the jury determines "the question of fact and law," again, according to Blackstone's Commentaries on the Laws of England. Said Blackstone:
"When a sufficient number of persons impanelled, or tales-men, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence; and hence they are denominated the jury, jurata, and jurors, sc. juratores. [III, ch. 23, p. 365]
... who are judges of fact, [p. 366] ...
The jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are impannelled and sworn to try, the pleadings are opened to them by counsel on that side which holds the affirmative of the question in issue. [p. 366] ...
When the evidence is gone through on both sides, the judge in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence. [p. 375] ...
When they [the jury] are all unanimously agreed, the jury return back to the bar; and, ... deliver in their verdict. ...
... the public verdict; in which they openly declare to have found the issue for the plaintiff, or for the defendant; ...
Sometimes, if there arises in the case any difficult matter of law, the jury for the sake of better information, and to avoid the danger of having their verdict attainted, will find a special verdict; ... And herein they state the naked facts, as they find them to be proved, and pray the advice of the court thereon; concluding conditionally, that if upon the whole matter the court shall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, then for the defendant. ...
Another method of finding a species of special verdict, is when the jury find a verdict generally for the plaintiff, but subject nevertheless to the opinion of the judge or the court above, on a special case stated by the counsel on both sides with regard to a matter of law: ... But in both these instances the jury may, if they think proper, take upon themselves to determine at their own hazard, the complicated question of fact and law; and, without either special verdict or special case, may find a verdict absolutely either for the plaintiff or defendant."
When the jury have delivered in their verdict, and it is recorded in court, they are then discharged. And so ends the trial by jury: ..." [pp. 376-378]
It thus appears from these passages taken from Blackstone's Commentaries that the jury may determine the question of law as well as fact in reaching their verdict, contrary to this Author's statement on page 13, that the jury is limited to trying only the facts at issue.
It is presently accepted "law," however, that the judge decides the matters of law in a trial by jury. This view appears in the book, Grand Inquests, authored by Chief Justice William Rehnquist.(2) On page 69 of that book, its author states:
"... At the close of the evidence, the court "charges" the jury instructs them as to what the applicable law is. ... In my own practice of law in Arizona, extending over sixteen years in state and federal courts, every judge would decide questions of law and leave to the jury questions of fact. Most of the judge's rulings on questions of law would be contained in his charge to the jury given after all the evidence was in, but before the jury began its deliberations. It would have been most unusual during the time when I practiced for a lawyer to argue to the jury that the law was different from what the judge had said it was in his charge; indeed, it would have been so unusual that the lawyer would risk a reprimand from the judge.
The instructions the judge was to give the jury would be "settled" at some convenient point during trial. Each lawyer would submit to the judge proposed instructions favoring his client, or course for the judge to use in telling the jury what law was applicable to the case. Usually the judge would discuss these proposed instructions with counsel rather informally during a recess at the trial. If any lawyer deemed an instruction to be critical to his case, most judges but by no means all would hear a brief argument on the point. But some judges particularly, it seemed to us, visiting federal judges from other states would decide what instructions to give without counsel even being present. Judges, of course, were not limited to simply choosing between the instructions proposed by the lawyers, and might decide to give a standard instruction or to devise an instruction they felt suitable for the case.
The rules of procedure required that the counsel be given an opportunity at some point to state "for the record" their objections to those portions of the charge they thought were erroneous, but this occurred after the judge had made up his mind and often after he had charged the jury." [end of quote]
Like many important assertions touching on the Constitution that are found in Chief Justice Rehnquist's book, which are given without proof, and which the present Author finds are wrong, Justice Rehnquist does not prove, nor even address, the legality or constitutionality of the practice of judges instructing or charging the jury "as to what the applicable law is" of the judges deciding questions of law, and leaving only to the jury the questions of fact. As demonstrated in the present Treatise, the Supreme Court is not vested with any legislative power to make the rules of proceeding in suits in the courts of the United States; and for this and other reasons, the Supreme Court-made Federal Rules of Civil Procedure and Federal Rules of Evidence are unconstitutional. As argued in the present Treatise, the proper rules of procedure are those that conform with the meaning of the expressions judicial power and trial by jury found in the Constitution as intended by the people who ordained and established the Constitution. And for those meanings, we ought to refer to Blackstone's Commentaries on the Laws of England.
No where in Blackstone's Commentaries is it said that the judge "charges" or "instructs" the jury after they sit to hear evidence or before they withdraw to consider their verdict. The only place in Blackstone (that this Author can find) which mentions a judge instructing and charging a jury is in regard to the grand jury in a criminal prosecution. Said Blackstone, after the grand jury is summoned:
" ... This grand jury are previously instructed in the articles of their enquiry by a charge from the judge who presides upon the bench. They [the jury] then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to enquire upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury however ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities: ...
The grand jury are sworn to enquire, ...
When the grand jury have heard the evidence, if they think it a groundless accusation, they ... assert in English, more absolutely, "not a true bill;" and then the party is discharged without farther answer. ... If they are satisfied of the truth of the accusation, they then endorse upon it, "a true bill;" ... The indictment is then said to be found, and the party stands indicted. ..." (Book IV, ch. 23, p. 301)
Thus, the instructing and charging of a jury, more specifically, a grand jury, occurs before the jury sits to receive indictments, and before they hear and inquire into the evidence (laid before them on behalf of the prosecution). There is no instructing or charging the grand jury "at the close of evidence."
Referring back to the first-quoted passages from Blackstone's Commentaries, we find that the judge of the court administering a trial by jury has not the power or right to "instruct" the jury as to the law or the evidence, if that word "instruct" means to direct or command the jury (as Justice Rehnquist has conveyed); but rather, the judge gives his (or her) opinion in matters of law arising upon the fact in issue. And on matters of evidence, the judge may state to the jury such remarks as he thinks necessary for the jury's direction. Obviously, the jury has to take a direction when deliberating to reach a verdict, and the judge's "remarks" are for the jury to consider in taking their direction. But Blackstone's statement falls short of clearly asserting that the judge may instruct the jury, or "charge" the jury as to the law arising upon the facts of the case, or the evidence.
So, strictly read, the above-quoted passages from Blackstone mean that the judge is not vested with the power to direct, instruct, or charge the jury at "the close of evidence," in the sense of laying down the law that binds the jury's in reaching their verdict, but that the judge gives his opinion in matters of law. As for the matters of evidence, the judge may offer remarks which he thinks are necessary for the jury's direction. However, according to Blackstone, the jury may, if they think proper, take upon themselves to determine the complicated question of fact and law! So, the jury does more than "try the fact"; and this, therefore, goes to further clarify the sole power of the Senate "to try all Impeachments."
The present rule of procedure, as asserted and maintained by Chief Justice Rehnquist that the judge charges or instructs the jury at "the close of evidence" is just another instance of the federal Government's usurpation of power; just as the Supreme Court by their self-made rules of procedure, and by their decrees or opinions in cases which they have taken cognizance of, has given the Judges of the United States Courts the power to dispense with a jury trial in a civil suit, even though a party to the suit may have demanded a jury trial, by the contrivance of the summary judgement, and also the power to act as a "gate keeper," to exclude "expert witnesses" from being heard by the jury. By the present day "law" that the judge may "charge" or "instruct" the jury "at the close of evidence," is just another aspect of the low regard which the United States Government, and the Supreme Court Justices in particular, have for juries, treating jurors as people who cannot think for themselves, who are not to be given any power to determine anything, or anything of importance, if the Court wills it not, especially in cases in which the "interests" of the United States Government is involved, as issues of constitutional law and federal government policies and operations.
This Author ought to review fully and critically Justice Rehnquist's book Grand Inquests; but such a review must be deferred, because of other pressing matters, as the Wars in Iraq and Yugoslavia. The above point may serve as a caution for others not to rely on the book Grand Inquests without considering a thorough critical review of it which this Author hopes to write in the future. 18 February 1999
1. By the Division's order of January 16, 1998, the Independent Counsel's prosecutorial jurisdiction is to investigate the matter of "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law ... concerning the civil case Jones v. Clinton." Of course, the Independent Counsel, Mr. Starr, has determined by his investigations that Mr. Clinton is one of the persons provided for by the "or others" specification of his prosecutorial jurisdiction.
2. The publisher declared on the back cover of the book that Justics Rehnquist's book "is the essential source to guide us through the crisis" the "crisis" being the impeachment of the President of the United State (Mr. Clinton, of course).