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January 9, 2020

Note from Elie: A Legacy-Defining Decision for Chief Justice Roberts

Dear Reader, 

After he presided over the 1999 impeachment trial of President Bill Clinton, Chief Justice William Rehnquist famously declared, “I did nothing in particular and I did it very well.” It’s a good line (borrowed from a Gilbert and Sullivan musical) — pithy, apt, and self-effacing. And it conveys Rehnquist’s view of his role in the Clinton impeachment trial as more traffic cop than enforcer, tasked to move the proceedings along and ensure order rather than to impose his will on matters of substance.

But it does not have to be that way. Chief Justice John Roberts has the Constitutional power, if he chooses to use it, to exert meaningful control over the impeachment trial of President Donald Trump. If Senate Majority Leader Mitch McConnell follows through on his plan to start the trial without assurances that the Republican majority will permit any witnesses or evidence, Democrats can prevail upon Roberts to intercede. Roberts, in turn, can and should exercise his Constitutional authority to conduct an actual truth-finding process rather than an empty political formality. 

Article I of the Constitution provides that “when the President of the United States is tried [for impeachment], the Chief Justice shall preside.” There is nothing in the Constitution, statutes, or case law compelling the Rehnquist-ian view that the Chief Justice has a limited, ministerial function. To the contrary, the one thing the Constitution does tell us — that the Chief Justice “shall preside” — confers broad authority and contains no explicit limitation.

The Senate has its own set of internal rules for impeachment trials. Those rules, adopted in 1868 and revised most recently in 1986, provide a strange mix of ceremonial pomp and substantive guidance. On the substantive side, the rules establish that the presiding officer “may rule on all questions of evidence.” Witness testimony, of course, is one type of evidence.

The Senate rules specifically give the Chief Justice two options: either send the evidentiary issue to the Senate for a vote, or decide the issue himself. However, if a Senator disagrees with the Chief Justice’s decision, that Senator can move for a vote of the full Senate to overrule the Chief Justice. Given the current 53-47 Republican majority (including two Independents who caucus with Democrats as Democrats), it would take four Republicans to join with the Democrats to form a majority.

But here’s the thing. Roberts could decide that he is not bound by the Senate’s internal rules (or at least that the Senate cannot give itself the power to overrule him). He therefore could defy the Republican majority and allow witnesses to testify, in his judicial discretion. After all, the Constitution instructs that the Chief Justice “shall preside,” without limitation or qualification. In a matchup of the explicit language of the Constitution itself in one corner and the Senate’s internal procedural rules in the other, the Constitution wins by knockout.

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If Roberts does go this route, it is unclear what recourse (if any) the Senate majority would have. It would be precipitous, and ultimately unworkable, for the Republican caucus to simply defy the Chief Justice; they can’t just throw him out of the chamber or ignore him. In his indispensable book “The Breach,” Peter Baker writes that in the Clinton trial, Senate Republicans “knew the Senate could never overrule Rehnquist because he wore the black robe.  If the Republican majority were to reverse a ruling by the chief justice, particularly a known conservative such as Rehnquist, it would be seen as a strictly political move to tamper with the judgments of an independent presiding officer.”  Precisely the same applies now to Senate Republicans and Roberts.

It might well never come to this. Senate Republicans and Democrats may yet reach some workable agreement on trial procedures. Or Roberts, not known for dramatic or self-aggrandizing action, might adopt Rehnquist’s view that the Chief Justice’s role is to keep order, not to dictate the form or substance of the proceedings.

But there are hints that Roberts might take a more aggressive tack if he feels it necessary. A longtime conservative stalwart, Roberts has become increasingly independent and unpredictable. Roberts famously sided with the Court’s liberal bloc in 2012 to uphold the Affordable Care Act and in 2019 to prohibit the Trump Administration from asking a citizenship question on the census.

In late 2018, shortly after President Trump attacked a judge who had ruled against the Administration as an “Obama judge,” Roberts took the unusual step of publicly rebuking the President: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges… that independent judiciary is something we should all be thankful for.” And Roberts recently issued his annual end-of-year statement, declaring that “we should celebrate our strong and independent judiciary.” Fairly standard Civics 101, stars-and-stripes rhetoric, to be sure — but also not the language of a jurist who intends to be submissive to the political whims of the Senate.

Roberts surely understands that his actions during the impeachment trial will someday become first-paragraph-of-the-obituary material. He can emulate the Rehnquist model of minimalism, but the law does not compel him to do so. If the Senate majority eventually tries to turn the impeachment trial into a political whitewash, then Roberts should exercise his authority to authorize witnesses and evidence. The choice for Roberts is stark: he can sit idly on the sidelines (and even do it “very well,” like Rehnquist), or he can use his power to help the Senate and the American public discover the full truth.

Stay Informed,


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