In advance of President Trump's impeachment trial, most Supreme Court watchers were expecting Chief Justice John Roberts, Rehnquist's former law clerk decades earlier, to follow Rehnquist's lead in minimizing his constitutionally assigned role to preside over a presidential impeachment trial.
With the Senate trial about to begin, however, two leading figures from the legal left publicly called for Roberts to take a more active role by supporting Senate Democrats' efforts to call witnesses once the trial gets underway. For their part, Senate Republicans are flatly rejecting the Democrats' insistence on the need for witnesses in Trump's impeachment trial.
Democrats have logic and precedent on their side. "I don't know how you have a trial if you don't have witnesses," Minnesota's Democratic senator Amy Klobuchar, herself a former prosecutor, remarked on MSNBC last week [Jan. 14]. In fact, witnesses testified in the two previous presidential impeachment trials — Andrew Johnson's in 1868 and Clinton's in 1999 — and witnesses were called in the 15 Senate impeachment trials through history that resulted in convictions and removals of federal judges.
Working hand-in-glove with the White House by his own admission, the Senate's Republican leader, Mitch McConnell, has ruled out any need for additional witnesses by blaming House Democrats for an incomplete job of gathering evidence before voting the articles of impeachment against Trump.
The partisan divide on the issue creates a dilemma for Roberts in his presumed goal of steering clear of politics or limiting himself to the minimalist role for judges that he described his Senate confirmation hearing in 2005. Back then, Roberts likened judges to baseball umpires, their role limited to calling balls and strikes according to an agreed-upon strike zone.
In this trial, however, the opposing sides flatly disagree on the underlying rules: Roberts may be forced to choose one side or the other. In an op-ed written for The Washington Post [Jan. 15], Caroline Frederickson, former president of the progressive American Constitution Society, suggested that Roberts' stated ideals called for him to take "a more assertive role" at the trial.
"Now more than ever," Frederickson wrote, "Roberts must live up to his own vision of dispensing justice by ruling to admit evidence that will advance the goal of seeking the truth." Roberts, she went on to argue, should simply follow well established judicial standards for determining any claims of privilege by Trump's legal team or weighing the relevance of proposed testimony sought by Democratic senators.
Anticipating Frederickson's position, the nationally prominent Harvard law professor Laurence Tribe predicted in an appearance on MSNBC [Jan. 14] that Roberts, his one-time student at Harvard, in fact would use his power, if asked, to issue subpoenas for witnesses sought by Democrats. "I would hope," Tribe remarked, "that his inclination would be to seek the truth."
A leading impeachment expert appeared to dash Tribe's and Frederickson's hopes at week's end, however, with an op-ed in The Washington Post that envisions the Senate itself, not the chief justice, as the rule-making authority for the trial. "The Senate’s rules and history make clear the Senate makes all important decisions in the trial," according to Michael Gerhardt, a law professor at the University of North Carolina and author of Impeachment: What Everyone Needs to Know.
Gerhardt acknowledged that Chief Justice Salmon Chase played a more active role in presiding over Johnson's trial, but he noted that the Senate stopped just short of stripping Chase of any decision-making role and later overruled him on two of his evidentiary rulings. Rehnquist was "a model of restraint" in Clinton's trial, Gerhardt added by contrast, and "was never overruled--because he rarely ruled."
"Temperamentally, Roberts is likely to follow the example of Rehnquist," Gerhardt predicted by recalling Roberts' famous balls-and-strikes analogy. "That does not sound like someone planning to become the center of attention in Trump's trial," Gerhardt concluded.
Roberts made his first appearance at the trial by taking his own oath of office on Tuesday [Jan. 14] from the Senate's president pro tem, Iowa's Charles Grassley, and then administering the same oath to do "impartial justice" for all 100 senators. The ceremonial opening followed the presentation of the two articles of impeachment against Trump by the seven designated House managers, brought in the name of "the people of the United States and the House of Representatives."
The 10-minute recitation of the charges by the House's Intelligence Committee chairman Adam Schiff provided a valuable reminder, for anyone willing to listen, that this is more than a partisan food-fight. The impeachment trial is a veritable constitutional crisis brought about by Trump's brazen effort to enlist a foreign government's help to influence the 2020 election to his advantage.
Trump's scheme, Schiff intoned, "ignored and injured the interests of the nation." In the words of the first article, Trump "abused the powers of the presidency . . . to obtain an improper personal benefit." Compounding the abuse, Trump engaged in "an unprecedented defiance of congressional subpoenas," according to the second article. Impartial justice demands that those accusations be seriously considered, but Republican senators have yet to indicate that they will take their oaths seriously. Even in a limited role, Roberts can at least remind senators of that oath as the trial proceeds.
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