Roberts would hold the gavel, but not the power, at Trump impeachment trial

The chief justice is likely to punt contentious and political questions to lawmakers

Supreme Court Chief Justice John G. Roberts Jr. listens to President Donald Trump's State of the Union address to a joint session of Congress on Jan. 30, 2018. (Tom Williams/CQ Roll Call file photo)
Supreme Court Chief Justice John G. Roberts Jr. listens to President Donald Trump's State of the Union address to a joint session of Congress on Jan. 30, 2018. (Tom Williams/CQ Roll Call file photo)
Posted January 8, 2020 at 5:00am

Chief Justice John G. Roberts Jr. will preside over any impeachment trial of President Donald Trump as the Constitution requires, but don’t expect him to make decisions that substantively reshape the action.

Although there is speculation about how active a role Roberts will take in an impeachment trial and whether key witnesses testify, the Senate under past rules has given relatively little authority to the nation’s top judicial figure. And in the areas Roberts might have authority to make rulings, such as questions about whether evidence is relevant, the rules also allow the Senate to call for a vote to overrule him anyway.

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Also, past impeachment trial rules, such as those for President Bill Clinton in 1999, give the chief justice the ability to defer making a ruling on his own and instead put a question to a Senate vote.

“All he has to do is look straight at the senators and say, ‘What do you think, boys and girls?’” said Frank O. Bowman III, a law professor at the University of Missouri and author of “High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.”

“I think there’s substantial likelihood that in any matter of any probable consequence, he’ll do that,” Bowman said.

House impeachment managers who present the case, along with Democratic senators, are almost certain to raise issues that will put Roberts in a tough spot if he were to rule. For example, Democrats are calling for the Senate to hear testimony from former national security adviser John Bolton and other Trump administration officials, while Republicans are not interested in allowing that.

[Trump appears to back short Senate impeachment trial]

That highlights the potential pitfalls for Roberts, a George W. Bush appointee whose instincts as chief justice have been to try to keep the Supreme Court from appearing political or stepping into the role of the political branches. A ruling that sided with Democrats would risk eroding Roberts’ reputation among conservatives, and could be overruled by the Republican majority. A ruling that sided with Republicans would invite criticism that it was politically motivated.

That makes the third path an attractive option: Just stay out of the way and punt the contentious questions to the politicians. In that way, Roberts might be wearing a robe, but his role will be different from a trial judge who is overseeing a criminal case.

In a criminal case, there is an extensive history of legal decisions that guide a judge to decide whether a witness could testify or not, Bowman said. In an impeachment trial, “the problem is there isn’t any” such history for Roberts to apply. The Constitution states only that the chief justice shall preside “when the President of the United States is tried,” but gives the Senate “sole power” to try all impeachments.

The senators themselves somewhat take on the role of the judge in an impeachment trial, something underscored by a ruling that then-Chief Justice William Rehnquist made during Clinton’s five-week impeachment trial.

At one point, Sen. Tom Harkin, D-Iowa, had made a motion that House impeachment managers who were presenting their case against Clinton should not refer to the senators as “jurors,” as Sen. Mike Lee, R-Utah, wrote Tuesday in an op-ed published by Fox News. Rehnquist decided “that the Senate is not simply a jury; it is a court in this case,” and there were no objections, Lee wrote.

“By its very nature, the Senate’s role in the impeachment process clearly indicates that senators are not passive observers of the trial,” Lee wrote, citing how senators decide the evidence that should be heard, how it should be presented and what witnesses to call or not.

“They can even override the presiding officer, who in the case of a presidential impeachment is the chief justice,” Lee wrote. “No jury can do that.”

That turned out to be one of the more memorable rulings Rehnquist made during the five-week Clinton trial, when he otherwise had little substantive role. Rehnquist would later tell television interviewer Charlie Rose that “I did nothing in particular, and I did it very well” — a line from a Gilbert and Sullivan operetta that made it into the chief justice’s New York Times obituary.

In the impeachment trial of President Andrew Johnson, then-Chief Justice Salmon Chase had to rule on motions and issues about live witnesses and more, Bowman said. Chase would often say something like, “it would appear to me under the standing rule that would be out of order,” but then would automatically turn to senators and invite a contrary view and potential Senate vote, Bowman said.

The most extraordinary power that Roberts may wield during the impeachment trial would be in the event of a tie vote on a procedural question or appeal.

Because the chief justice is the presiding officer for the purposes of presidential impeachments, Chase believed he had the authority to cast tiebreaking votes (as the vice president would during normal Senate business). In at least one case, Chase actually broke a tie on a procedural vote. Sen. Charles Sumner of Massachusetts made a motion that Chase’s tiebreaking vote was “without authority under the Constitution of the United States,” but the motion failed.

There are other potential situations that could put Roberts in the hot seat.

Ross Garber, who teaches political investigations and impeachment at Tulane Law School, brought up a possibility related to potential Bolton testimony. If the Senate subpoenaed Bolton, and if he showed up, and if Trump’s lawyers tried to block answers based on the president’s executive privilege, the trial could raise questions for Roberts about the scope and extent of executive privilege that could have lasting implications for the future of congressional oversight, Garber said.

Roberts would not be inclined to make such sweeping rulings himself. And Republicans don’t appear inclined to let Roberts take control of the Senate process.

“The chief justice is not the judge. He’s the presiding officer. There are no standards of proof. There are no rules of evidence,” Sen. John Kennedy, R-La., a former law professor, said last month on CNN. “And every senator, unless we pass a new rule by 51 votes in the Senate, is entitled to approach it his own way.”

Niels Lesniewski contributed to this report.