Impeachment

The Chief Justice Shall Preside

|The Volokh Conspiracy |

Now that the Senate impeachment trial of President Trump has begun, it has become evident that there are a great number of viewers who are hoping that Chief Justice John Roberts will use his magical powers to remove the president from office. Unfortunately, the chief justice does not possess magical powers.

In giving the Senate the "sole Power to try all Impeachments," the Constitution specifies that "when the President of the United States is tried, the Chief Justice shall preside."

This provision has given rise to a great deal of undue optimism about what role the chief justice can, should, or might play in the impeachment trial. Some have suggested that the chief justice should bar senators who are insufficiently "impartial" from participating in the impeachment trial. Others have suggested that the chief justice should impose his own rules for the trial and determine who will and will not testify. Others have posited that the chief justice should issue whatever directives might be needed to insure a "fair trial." Others have suggested that the chief justice should sanction Trump's attorneys for lying on the Senate floor. Perhaps the chief justice should simply send the marshal of the Supreme Court to arrest the president and be done with it.

It is my sad duty to report that impeachment trials do not work that way. The chief justice is not sitting as the presiding judge in an ordinary criminal trial. He does not have the final say on how the trial is conducted, who serves as jurors, what arguments are presented, or what evidence is presented.

The chief justice performs the much more modest role of presiding officer of the Senate. This is such a negligible position that the vice president, who has no constitutional duties other than to serve as presiding officer of the Senate while waiting for the president to shuffle off this mortal coil, quickly decided that he had better things to do than sit around the Senate chamber. The task instead routinely falls to the president pro tempore of the Senate, an honorary office bestowed on the longest serving member of the majority party.

The chief justice's job in a Senate impeachment trial is simply to administer the rules that the majority of the senators have themselves put in place. If a majority of the senators do not agree with how the chief justice is administering those rules, they can overrule him at any time. The chief justice has no authority to take unilateral actions in the impeachment trial and no capacity to make the senators do anything that a majority of them do not want to do. If Senate rules tolerate lies being said on the Senate floor, the chief justice has no authority to say otherwise. (If Senate rules insist that speakers should be civil and not call each other liars, the chief justice is expected to remind speakers who depart from that expectation as the Senate has traditionally understood it.) If the senators prefer that every senator be allowed to participate in the trial, the chief justice has no authority to remove them. If the senators prefer to hear from no witnesses, the chief justice has no authority to make them.

Chief Justice William Rehnquist, a student of impeachment history, understood how limited his role was when he presided over the impeachment trial of President Bill Clinton. He is said to have remarked afterwards, "I did nothing in particular, and I did it very well." Chief Justice Roberts hopes to be able to say the same.

Chief Justice Roberts will not save you from a Trump presidency or a ridiculous Senate impeachment trial.

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  1. Chief Justice Roberts will not save you from a Trump presidency or a ridiculous Senate impeachment trial.

    Or asinine Princeton professors, apparently.

    1. Sick burn. Where’s your blog? Oh, nobody would read it if you had one.

      Asinine professors 1 – Commenter_XY 0.

      1. Guys like Commenter_XY want to purify conservatism to its core. Which is fine by me, because that will accelerate the vanquishment of the Republicans in the culture war.

        We’ll always have a few Conspirators ranting reflexively against the liberal-libertarian mainstream and all of this damned American progress, though, cheered by the comments of a carefully cultivated class of cranky, inconsequential right-wing malcontents.

        1. John put this best: It is a moral failing on my part that I don’t feel more sorry for people in your position than I do.

    2. Or deeply flawed articles of impeachment that are spun from whole cloth and have no basis other then “Orange Man Bad”.

      1. Darth…The impeachment trial happening right now is not going to resolve the issues behind this naked political act; only an election will.

    3. That was uncalled for and uncouth.

  2. The Chief Justice does have at his disposal one fairly awesome (in the traditional sense of the word) reserve power, and that is the power to refuse to participate in what he views as a charade. If he thinks that the proceedings are a sham (either because of the rules the Senate has put in place, or for some other reason), he could very publicly say he’s not going to be part of it, at which point the job would fall to Clarence Thomas as next senior justice. Neither side would want to see the public relations uproar that would follow, which might induce them to play nice. Or at least play fair.

    I’m not suggesting he actually should do that. Just saying that he does have that power if the process degenerates far enough.

    1. Interesting. I doubt it would ever happen but that would be nice considering we have a number of Republican senators on the record saying they will not be impartial, etc. Hell, not even wanting witnesses, etc.

      It is a sham because they couldn’t bear to speak the truth.

      1. And, pray tell, how many Democrat Senators do you expect to be impartial?

        1. Democratic Senators, you half-educated rube.

          (Your illiteracy is a natural fit at a right-wing blog whose proprietors can seem similarly unfamiliar with standard English, although I suspect the precipitate with respect to a law professor is lack-of-virtue-signaling rather than genuine illiteracy.)

          1. They are Democrats. “Democratic” is an adjective. “Democrat” is the party. Given the way they vote in goose-step, there is nothing democratic about them.

            You wouldn’t say “Democratics Senators”, now would you?

            You fart-huffing dilettante.

            1. Darth, I try to avoid personal attacks, so I would not call you a half educated rube. But the Reverend is right on the grammar.

              1. Standard English is “elitist” to the clingers.

                That is part of the reason they are our society’s losers.

                1. But of course, the simpleton Kirkland has avoided the problem of addressing the impartiality of the Democrat Senators.

                  It is a puzzlement.

                  But I choose to use that construction because I know how much it pisses him off.

                  1. Darth,
                    I gather that you condemn the Republicans in the House as being Nazi-like (ie, walking in goose-step), since not one had the courage or integrity to show any independence and vote for impeachment. While, on the other hand, at least a few Democrats did ‘cross over’ in the House and did vote against impeachment.
                    I have been unable to find your past post(s) where you compliment the House Dems for showing a tiny bit of integrity/courage and criticize House Republicans for their lack of same. Can you post again here and give me the link(s) to those past comments of yours? I am confident that you’re not a flaming hypocrite and that there are, in fact, examples of your moral consistency.

                    p.s. I am with you re using Democrat. I gather that there is some controversy about word-choice and that it’s seen as demeaning or insulting on some level. That does baffle me . . . seems like a perfectly cromulent word.

                  2. But I choose to use that construction because I know how much it pisses him off.

                    Unfortunately, this is the only principle of the Trump-era GOP.

              2. It is however a reasonable error, as the names 3 of the 4 most prominent parties are conjugated differently.

                Green Party = Green Senator
                Libertarian Party = Libertarian Senator
                Republican Party = Republican Senator
                Democrat Party != Democrat Senator

                One of these is not like the others, so it’s an easy mistake to make, especially as those who are more globally aware will also note that in other countries the naming pattern (Labor, Conservative, Tory, AfD, etc) all use the same naming mask as the other US parties even if the rule that makes Democrat turn into Democratic doesn’t apply to them.

                1. Considering he repeated his error, I don’t know that DarthChocolate is making a good faith mistake here.

                  Irregular constructions are pretty common in English. Weird that this one is so tricky particularly for wingnuts.

                  1. People using “wingnuts” are appalled at the rudeness of people using “Democrat Party”.

                  2. I am SO sorry. This whole sham is perpetuated by the Democratics.

                    Or do you prefer “Democrats” in this construction?

                    The construction is of your own preference. Just because you care to abuse the language does not require me to follow in your goose-step.

                  3. I’m sure you’re correct, but I can totally see why someone would rather say Democrat than Democratic. I’d think it would be a common enough error to be common use acceptable by now.

                    And since the error has absolutely no clarity issues, I don’t think it’s that important to get right.

                    In fact, it’s one of those words where the correct use is more ambiguous than the incorrect one.

                    I guess the capitalization distinguishes the political party from the preference for democratic government.

                    I admit that I’ve probably made this grammatical error myself, but not because of any bias against the Democratic Party. Probably more of a subconscious leaning towards clarity.

                    But even though I don’t think it SHOULD be an error, it clearly is. So I thank you for pointing that out to me.

                    1. It’s basic courtesy to call a group what they want.

                      It’s fine to screw up occasional- I’m sure I have as well. But to flaunt using the wrong word is just showing you are a dick.

                2. “It is however a reasonable error, as the names 3 of the 4 most prominent parties are conjugated differently.”

                  If only there were a process by which one might become familiar with standard English . . .

                  Carry on, clingers.

            2. “Democratic” is an adjective.

              Uh, yes, that was his point.

          2. When I went to Yale, I was taught that descriptive grammar was the proper approach. Since large numbers of people say “Democrat party,” it is clear that the Yale faculty (the pinnacles of human wisdom, and the antithesis of bitter clingers) would endorse the usage.

        2. Well, for sure the ones running for Trump’s job – – – – – –

      2. Rather like Warren who had already decided the outcome of the trial when in the last debate she said:

        But understand this, what that impeachment trial is going to show once again to the American people, and something we should all be talking about, is the corruption of this administration.

        She apparently has an inside track on what evidence will be allowed and what witnesses will be called to demonstrate.

        Although, I assume she will decline to vote on the Senate on the impeachment as she obviously is not impartial.

        Almost no Senator is impartial. Given that, the next time the Republicans take the House, they should impeach Obama and call for the Senate to convict him and deny him of any office of trust for telling Medvedev that “This is my last election … After my election I have more flexibility” with regard to missile defense. It would appear that Obama either “owed” something personal to Putin and was going to repay that favor (entirely likely – perhaps election meddling) or that Obama legitimately thought there was something that he should do for the good of the country but delayed that (and risked never being able to do it because he didn’t win the election) in order to help increase his odds of winning a second term. I don’t see this as much different from Trump’s actions.

        1. Okay, let’s try this again since Reason is the only site I know of that doesn’t have preview or edit…

          Rather like Warren who had already decided the outcome of the trial when in the last debate she said:

          But understand this, what that impeachment trial is going to show once again to the American people, and something we should all be talking about, is the corruption of this administration.

          She apparently has an inside track on what evidence will be allowed and what witnesses will be called to demonstrate. Although, I assume she will decline to vote on the Senate on the impeachment as she obviously is not impartial.

          Almost no Senator is impartial. Given that, the next time the Republicans take the House, they should impeach Obama and call for the Senate to convict him and deny him of any office of trust for telling Medvedev that “This is my last election … After my election I have more flexibility” with regard to missile defense. It would appear that Obama either “owed” something personal to Putin and was going to repay that favor (entirely likely – perhaps election meddling) or that Obama legitimately thought there was something that he should do for the good of the country but delayed that (and risked never being able to do it because he didn’t win the election) in order to help increase his odds of winning a second term. I don’t see this as much different from Trump’s actions.

    2. Krychek, I’m not so sure this is true. The constitution says when the Senate is trying an impeachment, “…The Chief Justice shall preside.” I’m not sure that text gives him the option of declining to preside.

      1. And what, exactly, would be the remedy if he refused? A writ of mandamus asking his colleagues to make him? Or, for that matter, who presides if the office of chief justice happens to be vacant?

        The cold, hard reality is that impeachments are inherently political, which means that any participant can do whatever they can get away with, as Mitch McConnell has demonstrated over and over again. Plus, his power would be in the threat to walk away, not in the actual walk away itself.

        1. Well he could be impeached, as unlikely as it in is the House as presently consituted, but then again they aren’t big fans anyway so why take the risk?

          Or maybe the Senate should just go ahead and conduct the trial without him, since he’s mostly irrelevant anyway.

          Or they could request the most Senior Justice, the Honorable Clearance Thomas to conduct the trial in Roberts absence.

        2. Perhaps they would simply raise a motion that he was presiding remotely, having been given a conference call phone number he could call into, and apparently had no input and get a majority of Senators to approve the motion.

        3. You’re right, that seems to be where we are today. Even though all office holders swear an oath to uphold the constitution, precious few of them actually do it unless there will be repercussions for not doing it. I’m really not sure how to solve that problem.

  3. Just how “evident” is it that “a great number of viewers” think Justice Roberts will exercise some vast power over the impeachment proceeding? To be sure, in a country of 300-odd (some very odd) million people, even a tiny percentage of people believing such a thing might, by some reckonings, add up to a “great number,” but I don’t think this is what KEW means. And although virtually any statement in the form: “Great numbers of people don’t know X,” is almost certainly and trivially true because great numbers of people don’t know jack s**t, I don’t think this is what he means either.

  4. The reason for having the Chief Justice preside over the impeachment of the President of the United States is to avoid the rather absurd spectacle of the Vice President of the United States, the president of the Senate and the individual who would become President upon a conviction, presiding over the proceedings. And that’s pretty much the only reason.

    (The Founders failed to address who would preside over an impeachment of the Vice President, though we imagine it would not be the accused himself.)

    1. “(The Founders failed to address who would preside over an impeachment of the Vice President, though we imagine it would not be the accused himself.)”

      In current circumstances, Sean Hannity and Rush Limbaugh would arm-wrestle for it, with two or three Volokh Conspirators authoring the brief that blesses the arrangement.

  5. It seems that Princeton is not actually the center of the universe, professor.

    1. Not a fan of Princeton, JohannesDinkle?

      Do you prefer Hillsdale, or Liberty, or Wheaton?

      Biola, Grove City, Regent, Ave Maria?

      Franciscan, Oral Roberts, or (my current favorite) Ouachita Baptist?

      Carry on, clingers. So far as your fourth-tier educations and vestigial bigotry can carry you against the successful, modern, educated “elites” you resent.

    2. Do you have an actual point? Where does he imply that it is? The Professor stated facts (as he understands them, which are fairly obvious, given history and his estimable position).

      Roberts isn’t sitting as judge, the Senate is.

  6. I just want to point out that the link about “sending the Marshal of the Supreme Court to arrest the President” is not to a current suggestion by a Trump opponent. It’s to a tweet from nearly 3 years ago from a British conservative.

  7. 6 out of 7 House managers were pushing impeachment before the little whistleblower ruse ever came up.

    If the Chief Justice did have the awesome powers that these leftwing dictators fantasize about, they would be more properly wielded to sanction the Democrats and dismiss the sham impeachment.

  8. I wonder how many actual cases Roberts has tried?

    Rehnquist had tried exactly zero (as one can gather from some of his opinions). To his credit, I suppose, he did horn in to try one case, in which he let a lot of evidence in which he would have ruled inadmissible if it had come up before his Court.

    During the Clinton impeachment someone objected to the form of a witness’s answer. “I’ve heard of objecting to the form of a question, but not the form of an answer,” he said, accompanied by sycophantic chuckling from the chamber. But in a real trial such objections happen all the time.

    1. Roberts was a circuit judge for a little over two years before becoming the chief justice. I could not find any indication that he ever sat by designation.

      (Rehnquist did preside over a jury trial in the 80s, although the Fourth Circuit reversed his denial of the defense motion for a directed verdict. See Heislup v. Town of Colonial Beach, 1986 WL 18609 (4th Cir. 1986).)

      1. Thanks.

        I remember reading an account of that case. Rehnquist had never tried a case before and wanted to know what it was like. They couldn’t very well refuse him. According to the account, he looked like he had walked into the wrong room, but was careful and conscientious, preparing by reading up on the law (!) and trying to be a good trial judge.

  9. Roberts’ career has been as an appellate advocate. He did have a short stint as an young associate where he might have been involved in a trial (though he would not have conducted one for a paying client) , though I found no evidence of that, but his government service did not involve trial work and, after his return to private practice, he worked as an appellate lawyer.

  10. Democrats will always have a story about how magical powers will cause everything to work out to their emotional satisfaction. When the magic is gone from one story, they just make up a new one and decide to believe that one.

    Things that don’t work out are always the result of a Russian conspiracy or Big Oil or Big Pharma or Dark Money whatever bogeyman fits the role.

  11. I just don’t understand the argument that the Republicans are being “unfair” by not calling people like John Bolton as witnesses. Does that mean the Democrats were unfair during the impeachment hearing for failing to do the same? This whole thing looks like a sham to me and I would support impeachment of Trump if they did it on something real such as his decision to summarily assassinate foreign leaders. However the Democrats don’t want to impeach for that because they want their presidents to get away with using that illegitimate power too.

    1. Um . . . they DID call for Bolton. And lots of others.

      1. LOL that’s a good one. I meant “doing the same” as in not letting Republicans call the witnesses they wanted during the impeachment hearings. How can they now demand Republicans do that for them in the trial?

        1. Because impeachment and trial are two entirely different concepts and work differently. While no analogy is perfect, impeachment is most analogous to indictment, which makes the hearings in the House like grand jury proceedings. And in grand jury proceedings, targets do not get to call witnesses. (Though some states like NY let the targets themselves testify. But Trump, I assure you, was not interested in testifying before the House.)

          Also, Republicans were not actually prevented from calling relevant witnesses in the House.

        2. Republicans didn’t call for anyone relevant.

  12. “task instead routinely falls to the president pro tempore of the Senate”

    No, it routinely falls to junior senators. And even then they rotate so no one spends a whole day doing it.

  13. Roberts clerked for Rehnquist and, I believe, had the greatest respect for him. So I think Roberts would be quite proud if he is able to say, at the end of these proceedings, that, like his mentor, he did nothing and did it well.

    1. Let’s hope Chief Justice Roberts’ emulation does not extend to deciding cases in an opioid-warped fog.

  14. The chief justice’s job in a Senate impeachment trial is simply to administer the rules that the majority of the senators have themselves put in place. If a majority of the senators do not agree with how the chief justice is administering those rules, they can overrule him at any time.

    This erases any possible meaning of the word ‘preside’ (verb: to be in a position of authority) and makes the participation of the CJ surplusage. Both are disfavored in the canons of Constitutional interpretation.

    So for instance, Article I already gives the Senate to determine the rules of its own proceedings in general. Interpreting this clause to give the Senate identical authority over a much narrower scope is redundant — they already have it. The clause, under KW’s interpretation, is a nullity — it bestows upon the Senate no power that they would have anyways had.

    We’re told, constantly, that interpretations have to give meaning to the clauses. Summarizing S&G from ANTONIN SCALIA & BRYAN A. GARNER, READING LAW (2012 ):

    If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.

    In this case, the interpretation of the impeachment provision that the Senate makes the rules of the impeachment proceeding causes it to duplicate the general Art I clause that the Senate makes the rules of all the Senate proceedings. It has identically zero consequence.

    Maybe we can harness the power of Scalia turning in his grave from these contortions as a form of clean energy?

  15. Can anyone refer me to any historical commentary on the scope of the CJ’s role in presiding over an impeachment is? I’m not simply inclined to take Rehnquist’s word for it.

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