IMMEDIATE RELEASE 16 January 2020
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
The presider in chief
By Douglas Cohn and Eleanor Clift
WASHINGTON – The impeachment trial’s wild card is Chief Justice John Roberts, and how he interprets his role as presiding officer. The Constitution says the Senate has “the sole power” to try all impeachments, and when the President of the United States is tried, the Chief Justice “shall preside.”
In the last impeachment trial 21 years ago, then Chief Justice William Rehnquist wore a robe complete with gold armbands, a copy of the Lord Chancellor’s costume in the Gilbert and Sullivan opera Iolanthe. Rehnquist said very little beyond what was pro forma, boasting later in verse from the same opera that he “did nothing in particular, and did it very well.”
Roberts is no Rehnquist although he did clerk for him. He doesn’t enjoy the spotlight the way his predecessor did, but Roberts is keenly aware that the trial is about more than President Trump’s fate. The U.S. Senate and the Supreme Court are on trial as well in the eyes of an American public tuning in to see how seriously these two independent branches of government take Trump’s alleged transgressions.
A sense of solemn historic purpose-filled the Senate chamber as lawmakers were sworn in to receive two articles of impeachment, one for abuse of power in withholding military aid from an ally in exchange for dirt on a political rival, and the other for obstruction of Congress by refusing all requests for witnesses and documents.
The safe route for Roberts is to say little and let Republican leader Mitch McConnell (Ky.) run the show. But Roberts is not accustomed to being a potted plant, and it’s plausible to imagine he will take the side of the Constitution if called upon to do so.
For example, if Democrats seek the testimony of former National Security Advisor John Bolton, who said he is willing to testify if subpoenaed, and McConnell says no, Democrats could seek a ruling from Roberts.
If Roberts says yes, Republicans could attempt to overrule him with a simple majority vote. But Roberts represents a separate branch of government and is not bound by Senate rules. Quite the contrary, Roberts represents the branch of government empowered to be the final arbiter on constitutional law.
A recent Morning Consult poll found 71 percent of Democrats, 56 percent of Independents and 40 percent of Republicans say the Senate should call additional witnesses to testify. But polls will have no more weight than the Senate with Roberts, which is none.
Roberts represents the last hope for the semblance of a fair trial where evidence and documents are presented and examined. Appointed by President George W. Bush, Roberts is a conservative jurist, but, for him, left and right have nothing to do with the articles of impeachment being brought against Trump.
Roberts is highly protective of the Judiciary, one of the branches of government along with the legislative branch that Trump routinely trashes. When he takes the chair as the presiding officer in only the third impeachment trial in the country’s history, will he sit there like a prop, or will he embrace his role?
Senators are not permitted to speak during the trial, but they can submit questions for Roberts to ask lawyers on both sides. Will he ask all those questions without bias? Or will he filter those questions?
Roberts cares a great deal about the judiciary. Its legacy is his legacy. It’s unlikely his actions will change an outcome that seems preordained against removing Trump from office. Still, by stepping in when he should, Roberts has the unique opportunity to reaffirm the independence of the Court and its role as defender of the Constitution.
Douglas Cohn’s latest books are World War 4: Nine Scenarios (endorsed by seven flag officers) and The President’s First Year: The Only School for Presidents Is the Presidency.
© 2020 U.S. News Syndicate, Inc.
Distributed by U.S. News Syndicate, Inc.
END WASHINGTON MERRY-GO-ROUND
IMMEDIATE RELEASE 16 January 2020