*Published in Concord Monitor April 28, 2019
Nineteen years ago this month, I got a call from Donna Sytek, the Speaker of the House of the New Hampshire legislature. Peter Burling had given her my name, and she invited me to come to Concord to discuss the House-mandated investigation of the state Supreme Court.
The following Monday I drove north from Boston and met with Speaker Sytek and a bipartisan group of legislators. Later in the day she called and asked me to serve as Special Investigator.
I wanted to reflect a bit before giving my answer, though I had little doubt that I would accept the offer. It would be both an honor and a challenge.
But first I wanted to get some advice. So I called retired Massachusetts Chief Justice Edward Hennessey, whom I had known for many years. I explained my situation and asked for his opinion.
Chief Justice Hennessey told me, “Joe, you should do it. But remember, this is not the ordinary case. The Court is an institution, and part of your job will be to protect it.”
I spent the next six months in Concord.
I don’t remember thinking about a “trial” in those early days. My assignment was to work with the members of the House Judiciary Committee as they struggled to reach a decision and make a recommendation to the full House membership. It was no simple task, either for me or for them.
In a sense, mine was the easier undertaking. All I had to do was investigate the facts and the law and write a report. They were the ones who had to decide. Part of that meant grappling with the words of the state constitution, not the federal grounds of “high crimes and misdemeanors,” but rather “maladministration” and “malpractice.”
Ultimately, the committee voted to recommend impeachment of Chief Justice David Brock. I do not remember anyone ever asking, “But will the Senate convict?” Nor do I believe that question was of any concern to Chairman Henry Mock or the members of his committee. They understood their role in the process and discharged it with exceptional diligence.
In the summer of 2000, the full House of Representatives accepted the recommendation and voted to impeach. Did they consider whether the Senate would convict? I have no idea.
Speaker Sytek then appointed House “Managers” and asked me to take on the role of Special Prosecutor. At that point I did wonder, for the first time, what the chances were that the Senate would vote to uphold any of the four impeachment counts. I didn’t know whether this would be up to a majority, meaning twelve out of twenty-two senators (two senators had recused themselves), or whether a larger number would be needed. The New Hampshire Constitution doesn’t answer that question.
But former U.S. Senator George Mitchell, whom the Senate retained as its counsel, did. He met with me and counsel for the Chief Justice, a Washington lawyer named Mike Madigan. “Something this serious should not be decided by a simple majority,” he told us. “It will have to be a two-thirds vote to convict.”
I wasn’t surprised. The federal constitution requires a two-thirds vote, and I understood why it made sense here. I knew, however, that any possibility of “winning” the case had just evaporated. Various senators, unencumbered by judicial restraints on public comment, had already made their views known, and as a product of the Claremont school system, I knew how to count to seven. (The irony that many believed the vote to impeach was “payback” for Chief Justice Brock’s opinion in the “Claremont Case” did not go unnoticed.)
I remembered Chief Justice Hennessey’s cautionary words. It’s not about winning, it’s about the court as an institution.
Knowing that the Senate would not convict was, in a sense, a liberating force. My instincts as a trial lawyer did not disappear. I marshaled the evidence and put in the best case I could. But my goal was to help the members of the New Hampshire Senate (one of whom, Lou D’Allesandro, remains a member to this day) and more importantly the public at large, know how the New Hampshire Supreme Court had been conducting the public’s legal business.
The Senate acquitted David Brock, and he continued as Chief Justice for another two years.
I express no opinion on whether Congress should or should not commence impeachment hearings. I understand that our current national circumstances are far different from those we faced in New Hampshire in the year 2000. For one thing, the stakes are much higher.
But in one respect they are the same, and Chief Justice Hennessey’s words remain timely. We are dealing with an institution whose protection and preservation, as envisioned by the Founding Fathers, should be our uppermost concern.