The role of the chief justice in an impeachment trial
on Jan 10, 2020 at 11:18 am
Sometime in the next week or two, the impeachment trial of President Donald Trump will convene in the Senate. When it does, Chief Justice John Roberts will preside. There has been a good deal written about Roberts’ role, some of it intimating – or at least hoping – that Roberts could wrench control from the politicians who make up the Senate and transform the proceeding into a trial of the conventional judicial sort, with both sides able to compel the appearance of live witnesses and the production of documents and to inquire into any matter logically relevant to the charges against the president.
For better or worse, neither the Constitution, the rules of the Senate, historical precedent nor the personal predilections of Roberts himself make this the least bit likely. Instead, Roberts is most likely to serve as a dignified figurehead in an affair entirely dominated by the Republican senatorial caucus. Here’s why.
The Constitution specifies only four points about the Senate impeachment trial of a president: (1) The Senate “shall have the sole power to try all impeachments”; (2) when sitting as a court of impeachment, senators “shall be on oath or affirmation”; (3) conviction of any accused officer requires “concurrence of two thirds of the members present”; and (4) when the president is the accused, “the Chief Justice shall preside.”
It is crucial to note why the chief justice appears only in presidential impeachment proceedings. The simple answer has to do with the often-forgotten constitutional power of the vice president to serve as president – meaning presiding officer — of the Senate. In any impeachment case other than that of the president, the vice president can preside, as Thomas Jefferson did in the very first impeachment, that of Senator William Blount in 1799, and as Aaron Burr later did in the 1805 trial of Justice Samuel Chase. However, the Framers recognized that it would be unseemly at best for the person who would assume the presidency in the event of conviction by the Senate to preside over the president’s trial. To prevent that obvious conflict of interest, they specified the chief justice as a stand-in presiding officer in presidential impeachment trials.
A good many discussions of the upcoming Senate proceeding have understandably, but incorrectly, inferred two things from the presence of a judge in the presiding officer’s seat: first, that having a judge preside implies that the process will be akin to a conventional judicial trial, and second, that the chief justice’s role will be akin to that of a judge in such a trial. Neither inference is supported by the constitutional text.
Impeachment trials of presidents may excite more public interest than impeachment trials of other “civil officers,” but they are no different in constitutional form. The standard of impeachable conduct is the same – “treason, bribery, or other high crimes and misdemeanors” – as is the two-thirds threshold for conviction. The chief justice is inserted into presidential impeachments only to resolve the conflict of interest. His presence in the chair does not make the proceeding more “judicial” in character, nor is he accorded more “judicial” authority than the vice president or president pro tempore (meaning “president for a time”) of the Senate would possess in cases involving other officials. His role is merely to serve the same function they do in such cases. That function is delimited by Senate rules.
The Senate’s standing rules for impeachment trials make no distinction between the powers of the chief justice presiding in an impeachment and those of any other officer in the same role. The job is referred to throughout as “Presiding Officer” and its authority is the same regardless of who holds it. The rules nominally give the presiding officer considerable power, including the power to issue “orders, mandates, writs, and precepts” (Rule V), to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying and impeachment” (Rule VII), and to “rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence” (Rule VII). But in every case, this apparent authority is subject to the critical limitation that the presiding officer may only act in accordance with the will of the Senate.
For example, if the presiding officer makes a ruling on the relevance of evidence proffered by either the House managers or counsel for the president, that ruling can be questioned by any senator and overruled by a simple majority vote (Rule VII). Unlike in an ordinary trial, there is no higher court to which such a senatorial judgment can be appealed. The Senate itself is the final authority on every procedural or evidentiary question.
The essential impotence of the presiding officer is exacerbated by the fact that the Senate impeachment rules are very general and contain no provisions similar to the Federal Rules of Evidence regulating the admission or exclusion of witnesses, exhibits or particular testimony. If such rules existed, the presiding officer could base his or her rulings on their text, which would make votes to overturn such rulings at least politically or psychologically difficult so long as the presiding officer’s interpretation of the rules seemed logically sound. But as matters stand, every question ultimately rests in the unguided, and inevitably politically driven, discretion of a majority of senators.
Despite the formal powerlessness of the role, one could imagine a chief justice thrust into the presiding officer seat who wanted to make a principled statement about the constitutional merits of the case against the president, even if that statement flew in the face of the preferences of a senatorial majority. Such a chief justice might take every available opportunity to rule in favor of, for example, the issuance of subpoenas or the production of witnesses and documents by the president. It seems improbable that Roberts would take this course. Whatever his personal views about Trump, his most likely priority will be to avoid any appearance of partiality, which might imperil his own posture of judicial neutrality and with it the Supreme Court’s institutional legitimacy.
Happily for the chief justice, the Senate rules give him an easy way of avoiding any expression of view on any difficult issue. Whenever presented with a question on the admissibility of evidence, the presiding officer need not even make a provisional ruling but instead can immediately “submit any such question to a vote of the Members of the Senate” (Rule VII).
What little precedent we have in such cases suggests that chief justices keep their heads down and, so far as possible, defer assiduously to the will of the Senate majority. In the 1868 trial of President Andrew Johnson (which was a real trial, with extensive witness testimony and presentation of exhibits), Chief Justice Salmon Chase was consistently deferential to the Senate, often making provisional rulings and immediately inviting senators to register dissent. Chief Justice William Rehnquist was similarly meek during the impeachment trial of President Bill Clinton, although he was called upon to do less because the case was effectively submitted to the Senate on stipulated facts. The exceptional degree of partisanship that has characterized the Trump impeachment may counsel even greater caution from Roberts.
I can foresee only two circumstances in which Roberts’ judgment on any important question would have a dispositive effect.
First, if he were to render a provisional ruling on a procedural or evidentiary point – say admitting contested evidence – under the rules, his ruling would stand unless a majority of the Senate voted to the contrary. Thus, on a 50-50 split, Roberts’ ruling would prevail. However, before this situation could arise, Roberts would have to have made a ruling himself, rather than immediately deferring to a Senate vote.
Second, if a procedural issue were to arise on which Roberts had not made a ruling – say whether any subpoenas should issue to White House witnesses — and the Senate were evenly divided, 50-50, Roberts should – I think – have the “casting vote.” That is, he could break the tie. This result flows from the fact that the chief justice, when acting as presiding officer, is not a judge, but instead assumes the role otherwise played by the vice president in nonpresidential impeachments. Article I, Section 3 of the Constitution says: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” It is not absolutely certain that this provision extends to impeachment proceedings, but I would hard-pressed to formulate a contrary argument. And we know that Chase did break a procedural tie during the Johnson impeachment, and his exertion of authority was upheld by the Senate.
That said, Senate Majority Leader Mitch McConnell and the Republicans can maintain complete control over every aspect of the upcoming proceeding so long as they maintain a solid block of 51 votes.
In the end, I doubt that Democrats have much to hope for from Roberts, or that Republicans have much to fear. The smart money is that he will strive to replicate Rehnquist’s approach of doing “nothing in particular and [doing] it very well.”