WASHINGTON – Republicans hoping to end the Senate impeachment trial of President Donald Trump and Democrats seeking to extend it with witnesses and documents may be looking to one man Friday: Chief Justice John Roberts.
With Republicans increasingly confident they have the votes to block any additional testimony that could delay the trial and jeopardize Trump’s likely acquittal, the mild-mannered jurist sitting as presiding officer has emerged as Democrats’ last hope.
But whether Roberts has the authority under Senate rules to insist on further fact-finding is disputed. And even if he does, most experts on presidential impeachments don’t expect him to use it.
“There’s no earthly way that John Roberts is going to put up his hand and say, ‘I think I’ll step right in the middle of this poisonous fight,'” predicts Frank Bowman, a professor at the University of Missouri School of Law who has written extensively on impeachment.
Bowman says Roberts’ intervention would be an “entirely quixotic exercise,” contending that even if former White House national security adviser John Bolton testified on Trump’s actions regarding Ukraine, “It won’t change a single vote.”
For two weeks, the 17th chief justice of the United States has experienced what only two of his predecessors have: the Constitution’s mandate that he preside over a presidential impeachment trial in what’s been called the world’s greatest deliberative body.
He has interceded on occasion – once to reprimand House managers and the president’s lawyers for their language, a second time to suggest time limits for their answers to senators’ questions. On Thursday, he refused to read a question from Republican Sen. Rand Paul naming someone who may have been the whistleblower behind a complaint that precipitated the Ukraine scandal.
Otherwise, Roberts has receded into his predecessor William Rehnquist’s self-assessment that he “did nothing in particular” and “did it very well.”
But Friday looms as a wild card: In theory, at least, subpoenas could fly. Witnesses could be summoned. Documents could be demanded. Executive privilege could be claimed. And with Republicans holding a 53-47 Senate majority, Democrats may be looking to Roberts for help.
“This is a perfect nightmare for Roberts, who would dearly love this cup to pass from his lips,” says Jonathan Turley, a professor at George Washington University Law School who testified to Congress in President Bill Clinton’s impeachment inquiry and again in Trump’s.
Ironically, Roberts frequently became a subject of debate during the two days senators posed questions, even as he sat in the presiding officer’s chair behind the House managers and Trump lawyers answering them.
“I trust the man behind me,” Rep. Adam Schiff of California, the House’s lead manager, said more than once. “We are here to tell you we will agree with the chief justice’s ruling on witnesses.”
But Jay Sekulow, one of the president’s lawyers, said his team would not play ball in making Roberts more than what he long has professed to be – an umpire.
“With no disrespect at all to the chief justice, that’s not the constitutional design,” Sekulow told the Senate. “The chief justice is here as the presiding officer of this proceeding.”
‘Captive to the rules’
That description, and little else, comes from the Constitution. Article I, Section 3, Clause 6 states simply: “When the president of the United States is tried, the chief justice shall preside.” He replaces the vice president, who would have a vested interest in his boss’ acquittal.
Then Senate rules take over, and they are vague. Roberts, 65, has the power “to make and issue, by himself or by the secretary of the Senate, all orders, mandates, writs, and precepts authorized by these rules or by the Senate.” But are they authorized?
Similarly, he “may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy” – but he doesn’t have to rule at all, and the Senate can overrule him with 51 votes.
“I don’t think there’s much he can do,” says Michael Gerhardt, an impeachment expert and professor at the University of North Carolina School of Law. “I think that he is kind of captive to the rules.”
Scenarios could arise, however, in which Roberts’ rules of order might be sought. What if there is a 50-50 vote? What if the president’s lawyers claim executive privilege? Might the nation’s chief justice weigh in?
“Everyone knows that a ruling from the chief justice bears the imprimatur of the Supreme Court itself,” Turley says. “He is the embodiment of the highest court in the land.”
As such, Roberts must balance three sets of concerns: legal, political and institutional.
Legally, many experts say, there is ample reason to call witnesses and examine documents at a trial, to set a foundation of facts. In past impeachments, the Senate went beyond the facts established by the House and inquired further – even deposing Monica Lewinsky in the Clinton trial of 1999.
Politically, however, there is good reason for Roberts to steer clear. He eschews judicial involvement in politics, going so far as to write the judiciary out of deciding whether one-sided election maps drawn along partisan lines by state legislatures may be unconstitutional. He accused his court of going too far in 2015 when it legalized same-sex marriage, saying, “Who do we think we are?”
From an institutional standpoint, it depends on the institution. Roberts’ goal is to protect the integrity of the judiciary and his court, not the Congress; he has challenged the president on that issue, contending the country does not have “Obama judges or Trump judges.”
“I don’t think John Roberts is responsible for the Senate as an institution,” Gerhardt said. “I think that John Roberts is responsible for his role within this process. There’s an institutional role for him, but I think it’s a very small one.”
Senate Democrats have tried to make the case that by presiding over a trial without witnesses, Roberts and his court could be tainted – presumably to push him to their side in the crucial voting ahead.
Thus it was that Roberts was forced to read a question about himself Thursday, written by Sen. Elizabeth Warren of Massachusetts, a leading Democratic presidential candidate: “At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice’s presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court and the Constitution?”
Democrats plan to introduce a motion Friday requiring Roberts to subpoena any documents and witnesses he deems relevant, and to rule on all issues of evidence, including executive privilege. Sen. Chris Van Hollen has been leading the effort since the trial began, to no avail thus far.
Outside progressive groups also are pushing for Roberts to act. Demand Justice, a group led by Brian Fallon, former press secretary for Hillary Clinton’s 2016 presidential campaign, is running digital ads urging the chief justice to bring in witnesses.
“I don’t think Democrats should let him off the hook,” Fallon says. “If the matter is pushed to him, he ought to rule on it.”
The ads urge viewers to call the Supreme Court. But in a potential foreshadowing of Roberts’ inclinations, they get a recording that explains, “The rules and procedures for the impeachment trial are set by the Senate.”
A group of attorneys led by Neal Katyal, a former U.S. acting solicitor general, wrote in The New York Times earlier this week that Roberts has the power others dispute – and what’s more, can be overridden only by a two-thirds vote of the Senate.
“To ‘preside’ is not a merely symbolic role,” they wrote. “It can mean … to be asked to make a range of actual rulings, including ones on which the chief justice is not merely the first word but also the last.”
But that interpretation of Senate rules is disputed by a range of experts, including Harvard Law School professor Laurence Tribe.
“The text refers only to orders ‘authorized’ by the rules or by the Senate, and that in turn begs the question whether such authorization exists,” Tribe said. “The Senate parliamentarian seems to believe it doesn’t, and the chief is likely to defer to her.”
There remain other roles Roberts could play on Friday: asking questions, seeking more specific answers, offering advisory opinions or inviting Senate debate.
And then there is the specter of a tie vote. Some experts, like Bowman, believe Roberts has the power to break a tie, as Chief Justice Salmon Chase did on a procedural vote in the 1868 impeachment trial of President Andrew Johnson.
But that doesn’t mean he has to use it. He could let a tie vote fail.
“Roberts is likely to be loathe to substitute his view for those of the members of the Senate,” Turley said. “I think he could cast that vote, but that pushes us into uncharted territory.”
Contributing: Nicholas Wu and Christal Hayes