The Democrats Are Letting Roberts Off Too Easily

By doing nothing to ensure that Trump’s trial gets at the truth, the chief justice is taking a side. And the Democrats are just watching him do it.

Chief Justice John Roberts

About the author: Kimberly Wehle is a visiting law professor at American University. She is the author of How to Think Like a Lawyer—And Why: A Common-Sense Guide to Everyday Dilemmas and What You Need to Know about Voting—And Why.

As they press their impeachment case against President Donald Trump, the Democrats need help from Chief Justice John Roberts. And they’re not going to get it unless they ask for it.

Far from securing the 67-vote majority needed to remove Trump from office, Democrats are desperate to flip a paltry four Republican senators just to be able to call witnesses. The conventional wisdom is that Majority Leader Mitch McConnell, who pledged an acquittal before the trial even began, can use his party’s numerical advantage in the Senate to keep Americans from seeing any further evidence showing that Trump solicited foreign interference in the 2020 election. The Democratic impeachment managers seeking to remove the president have all but accepted their own helplessness, as if there were no one but McConnell to whom they can appeal for basic fairness.

Missing from this discussion is Chief Justice John Roberts, whose job it is, under the Constitution, to preside over any presidential impeachment trial. Here again, the widespread assumption has been that his role is ceremonial and substantively meaningless—that, in this case, he must be a passive witness as Trump’s Senate allies put on a sham trial, even though most Americans want to see actual evidence admitted before their elected senators decide Trump’s fate. But the Constitution would not have specifically instructed the chief justice to preside if his only role were to sit quietly and do nothing. As the lawyer Martin London credibly argued in Time earlier this week, Roberts has the power and duty to make judgments about the conduct of the trial.

In early proceedings, Roberts made it clear that he will not exercise that power unbidden. Nothing, however, prevents the House managers from making motions—either orally or in writing—to force the chief justice to take a stronger hand in the proceedings. And the Democrats have nothing to lose by trying.

With Roberts looking on, the White House counsel, Pat Cipollone, lied on the Senate floor by claiming, among other things, that House Intelligence Committee Chairman Adam Schiff hadn’t allowed his Republican colleagues into a secure meeting room during the proceedings that led up to Trump’s impeachment. This was untrue but went unchallenged in the moment. When things got heated between Cipollone and House Judiciary Committee Chairman Jerry Nadler—who bemoaned a Republican cover-up—Roberts merely stated, “I think it is appropriate at this point for me to admonish both the House managers and the president’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body.”

In a courtroom, a comment as demonstrably false as Cipollone’s would likely be met with a motion to strike the misstatement from the record. Roberts—who cares deeply about the legitimacy of the Supreme Court and of the entire judicial branch, which he leads—would be hard-pressed to rule outright that lies are acceptable in any trial over which he is the presiding officer.

Similarly, nothing prevents the House impeachment managers, whom Schiff leads, from filing motions and legal briefs laying out their positions on the admission of evidence and other matters. The chief justice would have to do something with them. Any decision by Roberts to punt a disputed matter without a ruling—to a full Senate run by a declared Trump partisan, no less—would be hard for him to portray as merely staying above the political fray.

The notion of the chief justice as a purely ceremonial participant in impeachment trials is difficult to square with the Constitution, Senate rules, or the historical record. In other impeachment trials, for federal judges and administration officials, the Constitution dictates that the vice president serves as the presiding officer of the Senate. The Framers were plainly concerned about the conflicts of interest that would result if the person who would ascend to the presidency upon the removal of a president also presided over the trial. If the job exercised no substantive power, the Framers wouldn’t have taken care to keep the vice president out of it.

Legal scholars have rightly argued that a Senate impeachment trial is different from a judicial one. But when the Framers set up the impeachment process in Article I of the Constitution, they nevertheless had a specific idea of what a trial was: a proceeding involving evidence and disputed questions of fact. The Sixth and Seventh Amendments to the Constitution, ratified a few years after the original Constitution, protect the rights of those involved in criminal and civil cases. Taken together, these amendments describe trials with witnesses, acknowledge the possibility of compelling testimony from witnesses, and recognize the role of juries as settling factual disputes.

Meanwhile, the Senate’s standing rules for impeachment give the chief justice the initial authority to rule on the submission of evidence. They authorize the chief justice to issue “orders, mandates, writs, and precepts”; to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying and impeachment”; and to “rule on all questions of evidence.” Senate rules allow a simple majority to overrule the presiding officer’s rulings on “relevancy, materiality, and redundancy of evidence”—a stipulation that makes sense only if the chief justice has the power to make meaningful rulings in the first place.

During Andrew Johnson’s impeachment trial in 1868, Chief Justice Salmon P. Chase insisted that the constitutional word preside has real meaning. According to his biographer John P. Niven, Chase took it upon himself to ensure that the trial “be organized in some particulars as a court,” and “insisted he should rule on the competency of witnesses and on evidence.” The constitutional scholar Michael J. Gerhardt—who testified during the House impeachment proceedings in December—similarly writes:

From the start, Chase believed that the Senate sat as a court to try President Johnson, and thus he pushed the Senate to follow legal procedures. As a result, Chase provided the senators with the opportunity to test the rules, which allowed the rulings of the presiding officer to be appealed to the body as a whole, which could overrule him by a majority vote.

For President Bill Clinton’s trial, Chief Justice William Rehnquist chose a different approach. As Gerhardt writes, Rehnquist, “no doubt informed by the research he had done for his recently published book on the Chase and Johnson impeachment trials … gave the House managers and senators considerable leeway in arguing the case for and against the president’s conviction and removal.”

Yet the difference between Chase’s handling of an impeachment trial and Rehnquist’s show that the chief justice has a choice about how much independent discretion to exercise. Moreover, the differences between the two parties on what constitutes fair process are far starker in the Trump trial than in the Clinton trial, during which witnesses were called. During the independent-counsel investigation that led to Clinton’s impeachment after four years of fact-gathering by teams of prosecutors and FBI agents, the president had gone so far as to testify, albeit reluctantly, before a grand jury; Trump, in contrast, tried (with startling success) to prevent the entire executive branch from cooperating in any way with House investigators, and his administration has ignored congressional oversight committees’ legitimate subpoenas for witnesses and documents.

Despite the differences between the Trump and Clinton cases, Roberts—a Republican appointee and a former Rehnquist clerk—has taken a page from his mentor’s book. In doing so, he is allowing the Republican caucus to block what Americans want and the Constitution arguably contemplates: a real trial with thorough, substantive evidence. By doing nothing to ensure that the process is fairly constructed to get at the truth, Roberts is in fact taking a side. And the Democrats are just watching him do it.