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With Gov. John Rowland of Connecticut surrounded by a political scandal, legal scholars are starting to debate the prospect that the Constitution State may see its first-ever impeachment trial. Rowland, a Republican from Waterbury, Conn., has admitted he took gifts and services from contractors and state employees — including a hot tub and renovations to a summer cottage he owns. The three-term governor and former U.S. representative has also admitted that he originally lied about taking the gifts. Whether he violated state ethics laws by accepting the offerings is one issue being debated. The Rowland administration is also the subject of a corruption investigation by the U.S. Attorney’s Office in Connecticut. No charges have been filed against Rowland, and there has been no indication that he is a target of the probe. But the possibility of an impeachment vote by the state House of Representatives, and subsequent Senate trial, looms. Last week, the House committee that will decide whether to recommend impeachment announced that it has hired Steven Reich, a New York partner at Manatt, Phelps & Phillips, as its legal counsel. Reich was an attorney in the White House counsel’s office during the impeachment of President Bill Clinton. The governor’s office has brought in Wilmer, Cutler & Pickering’s Seth Waxman, who was solicitor general in the Clinton administration, and his partners Randolph Moss, who headed the Justice Department’s Office of Legal Counsel, and Paul Engelmayer, a former federal prosecutor. The Wilmer lawyers will “provide research and analysis” to the office, Moss says, and will not represent the governor. The state’s chief justice, William Sullivan, would preside over the trial and, scholars say, break new legal ground. “From a professional point of view, there’s nothing as fun as a previously unutilized provision of the constitution,” says Hugh Macgill, a law professor at the University of Connecticut and a member of the state Ethics Commission. The Connecticut Constitution does not enumerate any criteria for impeachment, leaving the standard up to the state Senate. The chief justice’s role in an impeachment trial is administrative and procedural in nature: He is there to make sure the proceedings are orderly and follow the ground rules set by the Senate. But he is not a trier of fact. The Senate itself essentially serves as both judge and jury. “His role is the same as the Rehnquist role,” says Wesley Horton, a partner at Horton, Shields & Knox in Hartford and author of a book on the Connecticut Constitution. Horton cites the 1998 impeachment trial of Clinton, over which Chief Justice William Rehnquist presided. Like Rehnquist, Horton says, Sullivan “doesn’t have a vote. Since [conviction] must be by two-thirds vote, there’s no tie to break.” Sullivan’s role will be to clarify the rules of procedure. But those rules will have been written by the Senate, and the Senate can change them if it so desires. “Basically, it’s the same role as in a jury trial,” Horton says. “The odd thing is, the jury can overrule him.” Loftus Becker, a professor at the University of Connecticut School of Law, says Sullivan should be considering this question about his role: “To what extent am I going to think of the senators as jurors and instruct them in the law, or to what extent should I merely be advising them in the law?” In Becker’s view, establishing the ground rules will be the most important procedural problem. “Will there be anything like a summary judgment motion?” he asks. “What if the prosecution tactic is to just say, ‘Here’s what happened,’ and then the prosecution says, ‘I rest,’ without introducing any evidence? What control does the chief justice have in that situation?” While both the legislature and the governor have sought outside counsel for guidance on how to proceed, Becker says that’s something Sullivan is unlikely to do. “I don’t think I would if I were him,” Becker says. “But I might ask for the advice of the legislative counsel and the Rowland counsel on what the proper procedures would be. I’d probably contact the legislative leaders about the procedures.” Yet Drew Days III, the Rankin Professor of Law at Yale Law School in New Haven and former solicitor general for President Clinton, says that would be a mistake. “He should not confer,” says Days. “The rules of procedure are entirely in the province of the Legislature.” The chief justice’s only proper role, he adds, is to ensure order, and to “make sure witnesses are sworn in properly, that they’re not intimidated, that matters are properly presented.” Days acknowledges that the chief justice’s job is complicated by the fact that, regardless of any ruling he makes, “a majority vote of the Senate can overrule him.” How, then, should Sullivan prepare for such a job? While the impeachment of governors and presidents is rare, there have been a number of other impeachment trials across the nation, most recently in New Hampshire, where it was that state’s own chief justice on trial. Lessons can be drawn from all those proceedings, court-watchers say. Both Horton and Days also recommend that Sullivan bone up on his reading. Days suggests former Yale law professor Charles Black’s book, Impeachment: A Handbook on Procedures, while Horton promotes former Harvard law professor Raoul Berger’s Impeachment: The Constitutional Problems. One question being asked by political leaders is whether Sullivan, appointed to the head of the Connecticut Supreme Court by Rowland, should recuse himself from the proceedings. That suggestion was handily dismissed by every legal scholar. Sullivan won’t mete out a sentence, Horton notes. And since his eight-year term won’t expire until after he has reached the mandatory retirement age of 70, he is not beholden to the governor for reappointment. Horton calls any suggestion that Sullivan recuse himself “ridiculous.” “Government couldn’t function if anybody appointed by Rowland couldn’t have anything to do with him right now,” says UConn’s Becker. “But,” he quips, “if I were the chief justice, I wouldn’t go duck hunting with him.” Vincent Michael Valvo is editor and publisher of The Connecticut Law Tribune, an American Lawyer Media weekly newspaper, where this article first appeared.

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