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Trump’s Impeachment Trial a Perilous Duty for Chief Justice Trump’s Impeachment Trial a Perilous Duty for Chief Justice
(about 1 hour later)
WASHINGTON — When Chief Justice John G. Roberts Jr. walks out of his chambers at the Supreme Court, crosses First Street and enters the Capitol to preside over President Trump’s impeachment trial, he will leave behind an institution that prides itself on reason and decorum and enter one marked by partisan warfare.WASHINGTON — When Chief Justice John G. Roberts Jr. walks out of his chambers at the Supreme Court, crosses First Street and enters the Capitol to preside over President Trump’s impeachment trial, he will leave behind an institution that prides itself on reason and decorum and enter one marked by partisan warfare.
The chief justice’s responsibilities at the trial are fluid and ill-defined, and they will probably turn out to be largely ceremonial. What is certain is that they will be full of peril for his reputation and that of his court.The chief justice’s responsibilities at the trial are fluid and ill-defined, and they will probably turn out to be largely ceremonial. What is certain is that they will be full of peril for his reputation and that of his court.
“It’s not a heavy lift, but it’s going to put him in a very, very unpleasant role,” said Philip Bobbitt, a law professor at Columbia and an author, with Charles L. Black Jr., of “Impeachment: A Handbook.” “I’m sure he’ll get ulcers.”“It’s not a heavy lift, but it’s going to put him in a very, very unpleasant role,” said Philip Bobbitt, a law professor at Columbia and an author, with Charles L. Black Jr., of “Impeachment: A Handbook.” “I’m sure he’ll get ulcers.”
Any presidential impeachment trial thrusts the chief justice into unfamiliar and unwelcome terrain, said Frank O. Bowman, a law professor at the University of Missouri and the author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.”Any presidential impeachment trial thrusts the chief justice into unfamiliar and unwelcome terrain, said Frank O. Bowman, a law professor at the University of Missouri and the author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.”
“This one in particular is so poisonous,” Professor Bowman said, “that he’s going to be concerned that any perception of partiality to either side will potentially damage the institutional legitimacy of the court.”“This one in particular is so poisonous,” Professor Bowman said, “that he’s going to be concerned that any perception of partiality to either side will potentially damage the institutional legitimacy of the court.”
Chief Justice Roberts has plenty on his plate already, much of it related to Mr. Trump. He is working on a Supreme Court docket crowded with divisive issues, including three cases on whether to allow release of Mr. Trump’s financial records and one on Mr. Trump’s efforts to withdraw protection from deportation for young immigrants.Chief Justice Roberts has plenty on his plate already, much of it related to Mr. Trump. He is working on a Supreme Court docket crowded with divisive issues, including three cases on whether to allow release of Mr. Trump’s financial records and one on Mr. Trump’s efforts to withdraw protection from deportation for young immigrants.
The Supreme Court is still reeling from a series of ugly confirmation battles that placed two of Mr. Trump’s nominees on its bench. And Chief Justice Roberts has exchanged sharp remarks with Mr. Trump, laying bare a fundamental disagreement about the independence of federal judges.The Supreme Court is still reeling from a series of ugly confirmation battles that placed two of Mr. Trump’s nominees on its bench. And Chief Justice Roberts has exchanged sharp remarks with Mr. Trump, laying bare a fundamental disagreement about the independence of federal judges.
He seemed to allude to the dispute in his annual report on the state of the federal judiciary, issued on New Year’s Eve. “We should celebrate our strong and independent judiciary, a key source of national unity and stability,” he wrote. “But we should also remember that justice is not inevitable.”He seemed to allude to the dispute in his annual report on the state of the federal judiciary, issued on New Year’s Eve. “We should celebrate our strong and independent judiciary, a key source of national unity and stability,” he wrote. “But we should also remember that justice is not inevitable.”
And he set out a goal for 2020, knowing it would include the impeachment trial. “As the new year begins, and we turn to the tasks before us,” he wrote, “we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”And he set out a goal for 2020, knowing it would include the impeachment trial. “As the new year begins, and we turn to the tasks before us,” he wrote, “we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”
If there were a good time for Chief Justice Roberts to help determine whether Mr. Trump should be removed from office, this would not be it. But he cannot quarrel with the Constitution, which mentions the chief justice just once — and it is in the context of impeachment.If there were a good time for Chief Justice Roberts to help determine whether Mr. Trump should be removed from office, this would not be it. But he cannot quarrel with the Constitution, which mentions the chief justice just once — and it is in the context of impeachment.
“When the president of the United States is tried,” Article I, Section 3 says, “the chief justice shall preside.” But the founding charter says no more, and just what role the chief justice is meant perform has proved baffling. “When the president of the United States is tried,” Article I, Section 3 says, “the chief justice shall preside.” But the founding charter says no more, and just what role the chief justice is meant to perform has proved baffling.
The framers of the Constitution had considered having impeachment trials take place in the Supreme Court. But they rejected the idea for fear the justices would have to recuse themselves from an appeal should the president be prosecuted for the same conduct after being removed from office.The framers of the Constitution had considered having impeachment trials take place in the Supreme Court. But they rejected the idea for fear the justices would have to recuse themselves from an appeal should the president be prosecuted for the same conduct after being removed from office.
“The framers instead chose the Senate as the place for the impeachment trial,” Professor Bobbitt said. “But they needed to replace the vice president, who is ordinarily the Senate’s presiding officer but here had an obvious conflict of interest. They settled on the chief justice.”“The framers instead chose the Senate as the place for the impeachment trial,” Professor Bobbitt said. “But they needed to replace the vice president, who is ordinarily the Senate’s presiding officer but here had an obvious conflict of interest. They settled on the chief justice.”
That constitutional design suggests that the chief justice would have “a ceremonial role to give some dignity to the proceedings,” Professor Bobbitt said. “You take the chief, with the majesty of his office, but strip him of any power so he can still sit on an appeal from any criminal conviction.”That constitutional design suggests that the chief justice would have “a ceremonial role to give some dignity to the proceedings,” Professor Bobbitt said. “You take the chief, with the majesty of his office, but strip him of any power so he can still sit on an appeal from any criminal conviction.”
At the start of the trial, which could be as soon as Wednesday, Chief Justice Roberts’s first official act will be to take an oath to “do impartial justice.” He will then ask senators to raise their hands and to make the same pledge. That scripted exchange will set the tone for the chief justice’s role the proceedings, which history indicates will be limited. At the start of the trial, which could be as soon as Wednesday, Chief Justice Roberts’s first official act will be to take an oath to “do impartial justice.” He will then ask senators to raise their hands and to make the same pledge. That scripted exchange will set the tone for the chief justice’s role in the proceedings, which history indicates will be limited.
In 1868, at the nation’s first presidential impeachment trial, of President Andrew Johnson, “no one knew what to do,” Brenda Wineapple wrote in “The Impeachers,” her history of the trial.In 1868, at the nation’s first presidential impeachment trial, of President Andrew Johnson, “no one knew what to do,” Brenda Wineapple wrote in “The Impeachers,” her history of the trial.
“The Constitution offered no procedural guidelines to instruct the chief justice how to preside over an impeachment trial,” Ms. Wineapple wrote.“The Constitution offered no procedural guidelines to instruct the chief justice how to preside over an impeachment trial,” Ms. Wineapple wrote.
Chief Justice Salmon Chase insisted on having more than an incidental role. “He wished to rule on the admissibility of evidence — subject to the vote of the Senate — and on the reliability of witnesses,” Ms. Wineapple wrote. “His campaign to organize the Senate as a legal court was largely successful.”Chief Justice Salmon Chase insisted on having more than an incidental role. “He wished to rule on the admissibility of evidence — subject to the vote of the Senate — and on the reliability of witnesses,” Ms. Wineapple wrote. “His campaign to organize the Senate as a legal court was largely successful.”
More than a century later, at the second presidential impeachment trial, of President Bill Clinton in 1999, Chief Justice William H. Rehnquist did as little as possible.More than a century later, at the second presidential impeachment trial, of President Bill Clinton in 1999, Chief Justice William H. Rehnquist did as little as possible.
Chief Justice Roberts is likely to follow the example set by the predecessor, for whom he served as a law clerk in 1980 and 1981 before Justice Rehnquist was elevated to chief justice in 1986.Chief Justice Roberts is likely to follow the example set by the predecessor, for whom he served as a law clerk in 1980 and 1981 before Justice Rehnquist was elevated to chief justice in 1986.
Chief Justice Rehnquist was a student of impeachment trials, and he wrote a history of them, “Grand Inquests,” which was published in 1992. At the Clinton trial, he made only one ruling of any consequence, but it was one that helped define the chief justice’s role. It followed an objection from then-Senator Tom Harkin, Democrat of Iowa, who took issue with a Republican House manager’s characterization of the senators hearing his presentation as “the distinguished jurors in this case.”Chief Justice Rehnquist was a student of impeachment trials, and he wrote a history of them, “Grand Inquests,” which was published in 1992. At the Clinton trial, he made only one ruling of any consequence, but it was one that helped define the chief justice’s role. It followed an objection from then-Senator Tom Harkin, Democrat of Iowa, who took issue with a Republican House manager’s characterization of the senators hearing his presentation as “the distinguished jurors in this case.”
Chief Justice Rehnquist sided with Mr. Harkin. “The Senate is not simply a jury,” he ruled. “It is the court in this case. Therefore, counsel should refrain from referring to the senators as jurors.”Chief Justice Rehnquist sided with Mr. Harkin. “The Senate is not simply a jury,” he ruled. “It is the court in this case. Therefore, counsel should refrain from referring to the senators as jurors.”
John A. Jenkins, in his 2012 biography of Chief Justice Rehnquist, “The Partisan,” said the ruling was telling.John A. Jenkins, in his 2012 biography of Chief Justice Rehnquist, “The Partisan,” said the ruling was telling.
“It was a shrewd move on Rehnquist’s part,” Mr. Jenkins wrote, “because even though it seemingly reduced his authority it inoculated him against complaints about evenhandedness from one side or the other. If proceedings devolved, the senators had only themselves to blame.”“It was a shrewd move on Rehnquist’s part,” Mr. Jenkins wrote, “because even though it seemingly reduced his authority it inoculated him against complaints about evenhandedness from one side or the other. If proceedings devolved, the senators had only themselves to blame.”
Years later, reflecting on his role in the Clinton impeachment trial, Chief Justice Rehnquist was self-deprecating, borrowing a line from “Iolanthe,” a favorite Gilbert and Sullivan comic opera.Years later, reflecting on his role in the Clinton impeachment trial, Chief Justice Rehnquist was self-deprecating, borrowing a line from “Iolanthe,” a favorite Gilbert and Sullivan comic opera.
“I did nothing in particular,” he said, “and I did it very well.”“I did nothing in particular,” he said, “and I did it very well.”
Chief Justice Rehnquist’s most memorable choice at the impeachment trial was sartorial. He had taken to wearing black judicial robes adorned with four gold stripes on each sleeve, and he brought the enhanced outfit to the Senate chamber.Chief Justice Rehnquist’s most memorable choice at the impeachment trial was sartorial. He had taken to wearing black judicial robes adorned with four gold stripes on each sleeve, and he brought the enhanced outfit to the Senate chamber.
The garment was inspired, the Supreme Court’s public information office explained in 1995, by one worn by the Lord Chancellor in a local production of “Iolanthe.” Chief Justice Rehnquist’s friends said the stripes were a refreshing bit of whimsy, but others wondered if they fit the gravity of the occasion.The garment was inspired, the Supreme Court’s public information office explained in 1995, by one worn by the Lord Chancellor in a local production of “Iolanthe.” Chief Justice Rehnquist’s friends said the stripes were a refreshing bit of whimsy, but others wondered if they fit the gravity of the occasion.
In his 2011 memoir “Five Chiefs,” Justice John Paul Stevens recalled that Chief Justice Rehnquist had urged his colleagues to consider similar adornments on their own robes.In his 2011 memoir “Five Chiefs,” Justice John Paul Stevens recalled that Chief Justice Rehnquist had urged his colleagues to consider similar adornments on their own robes.
“We had immediately and uniformly given him a negative response to that suggestion,” Justice Stevens wrote. Chief Justice Roberts has shown no inclination to accessorize his robes.“We had immediately and uniformly given him a negative response to that suggestion,” Justice Stevens wrote. Chief Justice Roberts has shown no inclination to accessorize his robes.
Under the Senate’s rules, the chief justice’s decisions are provisional and may be overruled by a majority vote. “It would be as if a trial judge were presiding at a jury trial at which the jury always had the ability to overrule him by a vote of seven to five,” Professor Bowman said.Under the Senate’s rules, the chief justice’s decisions are provisional and may be overruled by a majority vote. “It would be as if a trial judge were presiding at a jury trial at which the jury always had the ability to overrule him by a vote of seven to five,” Professor Bowman said.
But former Representative Thomas Campbell, who was a Republican member of the House Judiciary Committee during the Clinton impeachment and is now a law professor at Chapman University, said he expected Chief Justice Roberts’s rulings to stand.But former Representative Thomas Campbell, who was a Republican member of the House Judiciary Committee during the Clinton impeachment and is now a law professor at Chapman University, said he expected Chief Justice Roberts’s rulings to stand.
“How would a senator feel about overruling a judgment on the merits by the chief justice?” Professor Campbell asked. “I think ‘hesitant’ would be the adjective I’d use.”“How would a senator feel about overruling a judgment on the merits by the chief justice?” Professor Campbell asked. “I think ‘hesitant’ would be the adjective I’d use.”
Professor Campbell suggested that Chief Justice Roberts would not hesitate to reject positions taken by Mr. Trump’s lawyers, saying, “He would not be intimidated.”Professor Campbell suggested that Chief Justice Roberts would not hesitate to reject positions taken by Mr. Trump’s lawyers, saying, “He would not be intimidated.”
The public has had only passing glimpses of Chief Justice Roberts since his winning presentation at his 2005 confirmation hearings. Senator Richard J. Durbin, Democrat of Illinois, declared that Chief Justice Roberts “retired the trophy” for an outstanding performance by a judicial nominee.The public has had only passing glimpses of Chief Justice Roberts since his winning presentation at his 2005 confirmation hearings. Senator Richard J. Durbin, Democrat of Illinois, declared that Chief Justice Roberts “retired the trophy” for an outstanding performance by a judicial nominee.
In 2009, though, the nation saw a misstep — Chief Justice Roberts and President Barack Obama managed to botch the simple call-and-response task of reciting the presidential oath at Mr. Obama’s first inauguration.In 2009, though, the nation saw a misstep — Chief Justice Roberts and President Barack Obama managed to botch the simple call-and-response task of reciting the presidential oath at Mr. Obama’s first inauguration.
A televised trial will subject Chief Justice Roberts to intense and unwelcome scrutiny, said Daniel Epps, a law professor at Washington University in St. Louis.A televised trial will subject Chief Justice Roberts to intense and unwelcome scrutiny, said Daniel Epps, a law professor at Washington University in St. Louis.
“Everything he does — his body language, his precise phrasing — is going to get picked apart,” Professor Epps said.“Everything he does — his body language, his precise phrasing — is going to get picked apart,” Professor Epps said.
In his judicial rulings, Chief Justice Roberts has generally been a reliable member of the court’s conservative majority.In his judicial rulings, Chief Justice Roberts has generally been a reliable member of the court’s conservative majority.
The exceptions — two opinions sustaining aspects of Mr. Obama’s health care law, one rejecting the Trump administration’s efforts to add a question on citizenship to the 2020 census — have been hailed as statesmanship by liberals and denounced as treachery by conservatives.The exceptions — two opinions sustaining aspects of Mr. Obama’s health care law, one rejecting the Trump administration’s efforts to add a question on citizenship to the 2020 census — have been hailed as statesmanship by liberals and denounced as treachery by conservatives.
In his 2016 presidential campaign, Mr. Trump called the chief justice “an absolute disaster.”In his 2016 presidential campaign, Mr. Trump called the chief justice “an absolute disaster.”
Last year, after Mr. Trump criticized an asylum ruling by saying it had been issued by an “Obama judge,” the chief justice issued an extraordinary statement: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”Last year, after Mr. Trump criticized an asylum ruling by saying it had been issued by an “Obama judge,” the chief justice issued an extraordinary statement: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
At the impeachment trial, Chief Justice Roberts will have two goals, said Julian Epstein, who served as chief Democratic counsel for the House Judiciary Committee during the Clinton impeachment.At the impeachment trial, Chief Justice Roberts will have two goals, said Julian Epstein, who served as chief Democratic counsel for the House Judiciary Committee during the Clinton impeachment.
“He’s going to look to be as ministerial as he can,” Mr. Epstein said. “That said, he’s going to bend over backward to look nonpartisan.”“He’s going to look to be as ministerial as he can,” Mr. Epstein said. “That said, he’s going to bend over backward to look nonpartisan.”
Chief Justice Roberts will resist any attempt by Senator Mitch McConnell, the majority leader, to rob the proceedings of their solemnity, Mr. Epstein added.Chief Justice Roberts will resist any attempt by Senator Mitch McConnell, the majority leader, to rob the proceedings of their solemnity, Mr. Epstein added.
“Roberts represents in many ways the institutionalist,” Mr. Epstein said. “He believes in the institutions of the Senate and the judiciary and the separation of powers. In many ways what McConnell is doing is throwing his lot in with the anti-institutionalists — the people who aren’t taking this process seriously.”“Roberts represents in many ways the institutionalist,” Mr. Epstein said. “He believes in the institutions of the Senate and the judiciary and the separation of powers. In many ways what McConnell is doing is throwing his lot in with the anti-institutionalists — the people who aren’t taking this process seriously.”
Professor Epps said Chief Justice Roberts is used to conflict, but only to a point.Professor Epps said Chief Justice Roberts is used to conflict, but only to a point.
“He has to deal with an unruly group of justices, and there are serious divisions,” Professor Epps said. “But the court, divided as it is, is just never as partisan as the United States Senate.”“He has to deal with an unruly group of justices, and there are serious divisions,” Professor Epps said. “But the court, divided as it is, is just never as partisan as the United States Senate.”