Court Battles

Roberts emerges unscathed from bitter impeachment trial

Chief Justice John Roberts appears to have emerged unscathed from President Trump’s impeachment trial, despite a fiercely partisan proceeding.

Americans will not soon forget the bitterness that characterized the trial and likely acquittal next week, but those frustrations are not expected to mar Roberts’s reputation.

“My sense going into the trial was that the chief justice would not want to make himself the story,” said Sarah Binder, a senior fellow at the Brookings Institution. “And as we near the end of the trial, he succeeded in that goal.”

The trial posed a challenge for Roberts, who was thrust into the center of a heated political fight that played out before television cameras.

As the trial’s presiding officer, Roberts had hoped to follow the largely neutral example set by his late mentor Chief Justice William Rehnquist at former President Clinton’s 1999 impeachment. Rehnquist, for whom Roberts clerked in the 1980s, sought to avoid being drawn into controversy and said that during Clinton’s proceeding he “did nothing in particular, and did it very well.”

Court watchers said that approach was well suited to Roberts, a mild-mannered 65-year-old jurist who famously said judges should simply “call balls and strikes” and who has sought to shield the courts from being unduly politicized.

Many suspected Roberts would have little trouble maintaining a mostly ceremonial role. The consensus view among scholars is that the Constitution and Senate rules give ultimate authority over all critical matters at impeachment trials to the senators themselves. 

But not all legal experts agreed, and Roberts found himself under pressure from both sides over the crucial question of allowing witnesses.

As the trial proceeded, Democratic calls for Roberts to play a stronger role grew louder. 

Democratic senators pitched Republicans on a bipartisan deal stipulating that Roberts would issue speedy and binding rulings on everything from executive privilege assertions to the relevance of testimony from former Vice President Joe Biden’s son Hunter Biden. Prominent legal scholars argued for Roberts to subpoena witnesses at his own discretion.

But those proposals, in only the third impeachment in U.S. history, would have left Roberts in uncharted waters.

Roberts also faced pressure from Trump’s defense team, which sought to keep him sidelined.

“I’ll say it very clearly: We are not willing to do that,” Trump’s personal attorney Jay Sekulow said Wednesday night about calls to give Roberts more authority. “With no disrespect at all to the chief justice, that’s not the constitutional design.”

It was not until Friday afternoon that the political spotlight swung decisively away from Roberts, however, when it became clear the Senate would vote down a motion to hear new witnesses 51-49. 

That moment came after several drama-filled hours of uncertainty around whether Sen. Lisa Murkowski (R-Alaska) might cast a yes vote, which would have resulted in a 50-50 tie.

Most experts believed a tie would have sunk the motion. But some, including Senate Minority Leader Charles Schumer (D-N.Y.), argued that Roberts could cast a tie-breaking vote, as Chief Justice Salmon Chase had done in the 1868 impeachment trial of former President Andrew Johnson.

Murkowski’s 51st vote against the motion avoided a tie, sparing Roberts from a potentially explosive decision.

Later in the proceedings, Roberts made clear his view that he lacked the power to cast votes alongside senators.

“I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed,” Roberts said in response to a question from Schumer.

At various points in the trial, Roberts sought to maintain decorum and cool tempers, even invoking the Senate’s history and reputation.

One of his first headline-grabbing moments came after a fiery exchange in the early morning hours of Jan. 23 between House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), one of the managers, and White House counsel Pat Cipollone.

At the request of Sen. Susan Collins (R-Maine), Roberts admonished both sides.

“It is appropriate at this point for me to admonish both the House managers and president’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body,” Roberts warned. “One reason it has earned that title is because its members avoid speaking in a manner and using language that is not conducive to civil discourse.”

Later in the trial, Roberts sidestepped an effort by Sen. Rand Paul (R-Ky.) to have the chief justice read aloud a question that would have identified the whistleblower who helped set in motion Trump’s impeachment.

Upon receiving the question from a Senate page, Roberts appeared to read Paul’s message silently.

“The presiding officer declines to read the question as submitted,” Roberts said after a pause.

As the trial ends, Roberts may face questions from Democrats and their allies over whether he should have done more to allow for new witnesses. Polls showed a large majority of Americans backed witness testimony in the trial.

“Democrats are working out a narrative on the trial that suggests it was a kind of cover-up and a sham,” said Ian Ostrander, a political science professor at Michigan State University. 

“I don’t think that they will implicate Roberts directly,” he said. “But to the extent that the Democratic narrative on the trial is that it was incomplete, contrary to prior precedent and pro-Trump in structure, Chief Justice Roberts may end up looking ineffective in his role.”

Roberts’s management of the impeachment trial came front and center on the second night of questions from senators.

A question from Sen. Elizabeth Warren (D-Mass.) asked House managers if Republicans’ refusal to allow new witnesses would diminish trust in the chief justice or the Supreme Court.

It was unclear if the question was a dig at Republican obstruction, Roberts’s unwillingness to take a position in the witness fight or both.

But it appeared to create discomfort for Roberts, whose role as the trial’s presiding officer required him to read senators’ queries aloud.

Ultimately, the decision not to hear from new witnesses will reflect upon the senators themselves, not Roberts, say legal experts.

“He left all critical decisions in the Senate,” said Michael Gerhardt, a law professor at University of North Carolina. “So the Senate, for better or worse, will be politically accountable for its judgment to allow this impeachment trial to become the first in history not to have witnesses.”

Roberts, who has publicly clashed with Trump before on the judiciary’s independence, is likely relieved he managed to avoid being on the receiving end of a presidential tweetstorm during the trial.

But Roberts’s reprieve from the political spotlight may be short-lived. 

On the same day the Senate voted down witnesses, the Supreme Court set a March 31 date to hear a landmark dispute over access to Trump’s financial records, where experts believe Roberts may cast the deciding vote.

Tags Charles Schumer Donald Trump Elizabeth Warren Jay Sekulow Jerrold Nadler Joe Biden Lisa Murkowski Rand Paul Susan Collins
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