The third impeachment of a U.S. president in our 230-year history is at an impasse. Many now wonder whether there might be a role for Supreme Court Chief Justice John Roberts in breaking the partisan logjam.
Article I, Section 2, of the Constitution provides that, while the House has the “sole Power of Impeachment,” the “Senate shall have the sole power to try all Impeachments.” When a president is tried, the great charter says, “the Chief Justice shall preside.” So who makes the rules? You would think the chief justice. But the Constitution also says in Article I, Section 5, that “Each House shall determine the Rules of its Proceedings.”
So all rules of procedure in an impeachment of the president must be governed by those enacted by a majority of the senators — a cumbersome procedure, possibly requiring a vote on each rule.
The chief justice is the presiding officer, but are his duties purely ceremonial?
I would not argue that, under the constitutional structure, Chief Justice Roberts can order witnesses to appear and make up his own rules structuring the proceeding. It is frequently stated that impeachment is a political, not a judicial, process; to call on the chief justice to exercise judicial control over a political process would seem far-fetched and contrary to precedent.
But I would argue that there is a role for the chief justice in resolving the present impasse.
Taking her cue from Harvard law professor Laurence Tribe, House Speaker Nancy PelosiNancy PelosiRand Paul airs grievances about impeachment, ‘your favorite politicians’ as part of Festivus Poll: Trump approval rating nears 50 percent heading into 2020 Trump will hold first 2020 campaign rally in Ohio MORE (D-Calif.) has said she will delay transmitting the articles of impeachment until she is assured of a fair proceeding in the Senate — notably, that evidence from the handful of witnesses specified by Senate Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerImpeached, with a solid base and no apologies — Trump becomes the only issue of 2020 McConnell: ‘Let’s quit the charade’ on impeachment Schumer: Newly released emails show importance of White House witnesses in Senate trial MORE (D-N.Y.) and certain relevant documents have been entered into the record. Check!
Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellFBI looking into former Kentucky governor’s controversial pardons: report There’s no requirement — nor need — for an actual trial in the Senate Congress must ensure every eligible American can access the ballot box MORE (R-Ky.) has said he wants a hydra-headed procedure, with housekeeping matters first agreed upon, opening statements, and then a later vote on whether witnesses will be called to testify. He claims this is what happened in the Clinton impeachment. Schumer says no. Not checkmate, but stalemate.
So what is the way forward? No one really knows. But when warring parties cannot agree in court to reasonable rules of engagement, the presiding judge may enter the fray and mediate the dispute, or perhaps resolve it for them. Here, the chief justice might have some leverage.
He should meet with the two Senate leaders and put forward a fair process that assures justice to the president and to the House. This might include what witnesses may be called by both sides, what documents will be produced, and whether sworn testimony will be taken in a public proceeding or behind closed doors by way of depositions. He might address other procedural and administrative issues necessary to the conduct of the trial. This is “Trial Management 101.” This is what a judge does when he “presides” — he controls the course of a proceeding.
The chief justice’s immediate reaction might be, “Where’s my leverage if they can’t agree on my proposals?” He would have tremendous leverage coming from the prestige of his office. What would be the optics if the Republican-appointed chief justice proposed taking testimony, in open or closed session, and McConnell — who says he is coordinating with the White House — turns it down? Surely, there would be public outrage. McConnell, if he is acting in good faith at all, would have to comply with the proposals of the impartial magistrate that the Constitution puts in charge of the proceeding.
McConnell clearly visualizes the trial as a partisan vote — something like a vote on health care, immigration or late-term abortion. He appears to forget that the Constitution, in cases of impeachment, requires senators to take an additional oath to decide that issue fairly, impartially. The Constitution contemplates a trial in the Senate, and a trial must have reasonable rules. Who ever heard of a trial without witnesses, without a reasonable opportunity to present evidence?
It is no answer to say that the House had the opportunity to present this evidence before it impeached. This was the argument of George Washington University law professor Jonathan Turley, called as an expert witness by Republicans before the House Judiciary Committee; he said there might have been impeachable offenses accomplished by Trump’s conduct, but it was too early to tell.
Yet, under the Constitution, the House is an accusatory body. It need not have all the evidence; it merely must be satisfied, as it was, that it had enough evidence to impeach. Grand juries frequently indict based on hearsay. Prosecutors often feel they don’t have all that is knowable at the time of indictment before the grand jury, but they indict anyway.
Defense lawyers may argue all they want that this is “indictment-lite” or a “slipshod” indictment. But in such instances, if prosecutors choose to go to trial, they are never precluded from offering additional evidence to establish guilt beyond a reasonable doubt, and they are required to turn over exculpatory evidence to the defense: Justice to the defendant, to be sure, but justice to the government as well. In civil cases, the parties amass much evidence in discovery proceedings before trial but are never precluded from offering additional evidence at the trial itself. The object of the exercise must be to achieve the aspiration of justice.
Founders James Madison and Alexander Hamilton were wise enough to put a brake on the awesome powers of the president with the impeachment clause. They entrusted the House with the sole power of accusation, and the elite Senate with the sole power to try the case. The president is not supposed to serve at the pleasure of the Senate — but he may be “removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The Founders of our country said that, in cases of impeachment, the chief justice is to preside — and they must have had something in mind. So, Chief Justice Roberts, do your constitutional duty and “preside” over the trial by taking a hand in resolving the partisan impasse and breathing justice, due process and fairness into the rules of engagement. Then, let the trial begin.
James D. Zirin, a retired partner of Sidley Austin, is the author of the recently published book, “Plaintiff in Chief — A Portrait of Donald Trump in 3,500 Lawsuits.” He is a former assistant United States attorney for the Southern District of New York.