The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Chief Justice Shall Preside
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.
