//  6/13/19  //  Commentary

With Special Counsel Robert Mueller’s report out, and President Trump engaging in unprecedented obstruction of congressional efforts to investigate him and his Administration, calls for the House of Representatives to at least begin an impeachment inquiry are ramping up.  Even House Judiciary Chairman Jerry Nadler has recognized that “[t]he president’s continuing lawless conduct is making it harder and harder to rule out impeachment or any other enforcement mechanism.” 

If the House were to open an impeachment inquiry and that inquiry ultimately resulted in a vote to impeach, President Trump wouldn't be the only one in the spotlight.  Chief Justice John Roberts would be there, too, because he would be responsible for presiding over the trial that would take place in the Senate.  And that’s why it’s more important now than ever that Roberts demonstrate that he’s capable of being the impartial umpire he famously promised to be at his confirmation hearing.

The constitutional rules governing impeachment are sparse, but the broadest guidelines are clear.  The President and other civil officers “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or high Crimes and Misdemeanors.”  The House of Representatives has the “sole Power of Impeachment,” but impeachment alone doesn’t remove someone from office.  Instead, a person can be removed from office only if two-thirds of the members of the Senate, which “shall have the sole Power to try all Impeachments,” vote to convict.  And “[w]hen the President of the United States is tried, the Chief Justice shall preside. . . .” 

In sum, although President Trump apparently thinks that federal judges have a significant role to play in impeachment—he’s at least twice claimed that the courts might help him out were he to be impeached—the Constitution suggests otherwise.  Indeed, the Supreme Court has previously held that a claim that a Senate procedure for trying impeachments was unconstitutional could not be “resolved by the courts.”  Thus, under the Constitution, only one judge would play a role in the impeachment of President Trump, and that judge is Chief Justice John Roberts.

The Constitution doesn’t provide any details about what the Chief Justice should do as presiding officer over a trial of the President, but the Senate rules governing impeachment provide, among other things, that the “Presiding Officer possesses authority to rule on all evidentiary questions,” or he can “put any such issue to a vote before the Senate.”  They also allow that “any Senator may request that a formal vote be taken on a particular question.” 

It’s difficult to know in advance what a trial of President Trump might look like or how it might play out, given the numerous different issues, some potentially involving complicated legal questions or sensitive national policy considerations, that such a trial might involve.  And it’s also difficult to say in advance what sorts of decisions the Chief Justice would be asked to make in such a trial, or whether any of his rulings will be dispositive.  When Chief Justice Salmon Chase presided over President Andrew Johnson’s trial, he “claimed the authority to decide certain procedural questions on his own, but the Senate . . . overruled him at least twice.”  When Chief Justice William Rehnquist presided over President Clinton’s trial, he “ruled on some procedural questions” that went without challenge by the Senate, but he later diminished the significance of his role, remarking that “I did nothing in particular, and I did it very well.” 

Notwithstanding these uncertainties, one thing is clear: whatever the precise parameters of his role, the Chief Justice will be front and center if the Senate considers, and ultimately votes upon, allegations that President Trump has committed “high Crimes and Misdemeanors” that make his removal from office appropriate. 

Given the prominent role the Chief Justice would play in such a process, it is critical that the public view Roberts as an impartial figure, beholden neither to the President nor to those who are trying to remove the President from office.  In some ways, this is a part that Roberts has been positioning himself to play for years.  He has long insisted that judges are not simply politicians in robes.  And although his record leaves no question that he is an incredibly conservative jurist, he has sometimes shown a willingness to part ways with the other conservatives on the Court.

This is a trying time for a justice who wants his Court to be seen as an impartial institution.  The President for months now has been suggesting that the Supreme Court over which Roberts presides is in his back pocket.  And later this month, the Court will be deciding a challenge to a major initiative of the Trump Administration—the effort to add a citizenship question to the 2020 Census over the objections of the Census Bureau’s own experts, who advised that adding the citizenship question would undermine the accuracy of the Census count that is mandated in the Constitution.  Although the Administration claims that it added this question to help with enforcement of the Voting Rights Act, there’s long been reason to question that claim—and the evidence that that claim is false has only grown in recent weeks.  If Roberts votes to uphold this plainly unlawful Administration action, it will give credence to Trump’s claim that he can simply look to the conservative justices on the Supreme Court to save him.

That would be a deeply troubling state of affairs—both for the Court and for the country.  And it would be particularly troubling now, as the possibility continues to grow that there could be an impeachment trial in the Senate.  If that were to happen, the country would need to believe that Roberts can preside over that trial with fairness and impartiality.  What the Chief Justice does in the remaining weeks of this Court’s term may affect whether that’s a realistic possibility.


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As President Trump puts additional judges on the federal courts for life and continues his own extreme policies, Bork’s America is coming to life more and more as Trump’s America.

Elliot Mincberg

People For the American Way

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The Roberts Court has a constitutional blindspot. It consistently ignores the many parts of the Constitution that help preserve and protect a vibrant democracy open to all.

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In Gundy, the liberal justices' desire to protect the administrative state led them to uphold an exceedingly punitive law. But this was a bad bargain. The conservatives will still reinvigorate the non-delegation doctrine, and a terrible law will still remain on the books.

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