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The man who could ruin McConnell’s plan for a sham impeachment trial

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Chief Justice John Roberts

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Terry H. Schwadron
Terry H. Schwadron

Amid impeachment gatherings in cities nationwide, partisan debates and a seething White House, the House of Representatives has finally voted along party lines to impeach Donald Trump, an action that is only the third in history.

A lot of people underwent a lot of effort to make things dramatic, but the numbers of the vote were understood from the get-go.

There were late-inning screeds and pleas: The president’s 6-page attack on Democrats did not waive away the dishonor of impeachment. Indeed remarks by Rudy Giuliani just underscored that there was a scheme, not a single phone call to extort campaign help for U.S. recognition and military help to a foreign country.

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McConnell has been unusually pushy this week, going public with the message that he is in charge, that he is not an impartial juror, that this is a political process rather than a legal one.

And there was Speaker Nancy Pelosi’s screwball curve, vowing to hold the impeachment and not deliver it to the Senate until she understands that there will be a fair trial.

So, shortly or not, we’re on to the Senate, where, the question was forming as to whether it will be Chief Justice John G. Roberts Jr. or Senate Majority Leader Mitch McConnell who will drive the decision-making for Trump’s impeachment trial.

An Impartial Senate Leader

Senate Majority Leader Mitch McConnell and Chief Justice John Roberts.

McConnell has been unusually pushy this week, going public with the message that he is in charge, that he is not an impartial juror, that this is a political process rather than a legal one. “Everything I do during this, I’m coordinating with the White House counsel,” he said repeatedly, pledging to sway the outcome to assure acquittal for Trump.

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Along the way, he has trashed attempts by Minority Leader Chuck Schumer to call additional Trump administration officials like Acting Chief of Staff Mick Mulvaney and former National Security Advisor John R. Bolton to bolster the case against the president.

But we have yet to hear from the Chief Justice, who normally is a big defender of the independence of the role of the judiciary. McConnell insists that while Chief Justice Roberts is assigned by the Constitution to preside over the proceedings, it is he who controls majority votes that will decide on evidence decisions, timing, and the procedures for the “trial.”

No Pushover

Bruce Ackerman in Slate argues more or less what I’ve been suggesting–that Roberts probably is no pushover. His thesis is that the Senate’s own Rules of Procedure and Practice specifies that it is the “presiding officer” who “shall direct all forms of the proceedings,” and that he may “rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence.”

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That means it should be Roberts, not McConnell, who decides, even in the limited role granted the presiding officer.

Slate notes that the rules explicitly grant “any member of the Senate” the right to object to Roberts’ evidentiary decisions, and if the chief justice stands firm in his opinion, a senator may demand “a vote of the Members of the Senate” on “any such question”—with a simple majority sufficient to overturn Roberts’ ruling.

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Strict Senate Rules

Still, the Senate majority’s authority is strictly constrained by the rules it has itself established. While it can reverse particular evidentiary rulings, it can’t bar anybody from appearing as a witness. Instead, it is up to the lawyers representing the House and the president to make these critical decisions, with the proviso that “witnesses shall be examined by one person on behalf of the party producing them, and then cross-examined by one person on the other side.”

Not that Trump will do so, but the rules allow him to testify if he were to choose to do so–subject to cross-examination. It also recognizes that a trial would proceed even if the president were to refuse to participate or even send lawyers on his behalf.

According to Senate rules, “the doors of the Senate shall be kept open” so that the nation can come to its own decision. When all the evidence is in, senators can retire to engage in jury-style deliberations behind closed doors.

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The rules go back to the trial of Andrew Johnson in 1868 but were re-enacted by the Senate in 1986. Still, lawyers say the Senate can waive its own rules by unanimous consent, which happened with Bill Clinton. Said Slate, It would also be legal if McConnell persuaded enough Republicans to push through sweeping changes on the basis of a bare majority vote, which would have to come quickly, within a day, actually, upon presentation of a final House impeachment vote.

Overruling the Senate

According to the current rules, the “Chief Justice shall be administered the oath “to do impartial justice” and shall preside over the Senate during . . .  the trial of the person impeached.” Once John Roberts replaces Vice President Mike Pence as the Senate’s presiding officer, McConnell’s attempt to change the rules would generate a constitutional crisis, reported Slate. Roberts could refuse to allow the Senate to vote on proposed rule changes that were inconsistent with Roberts’ pledge “to do impartial justice.”

All of which brings us to the question at hand: Once Chief Justice Roberts takes over the gavel, “immediately” after the bill of impeachment passes over to the Senate, will he resist any effort to transform the rules’ demand for an “impartial” trial into a partisan power play?

Most observers see Roberts as a serious judge, dedicated to sustaining the Supreme Court’s central position in our system of checks and balances. So far, the media coverage and the various remarks by partisan Senators have skipped over just how much leeway Roberts will have as presiding officer. Is this a “trial” or a “political event,” as McConnell says? What does Roberts have to say about an “impartial” event being run as a rigged procedure with assured outcomes? Will he put the Constitution above bitter partisan conflict?

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If Roberts acts powerfully, McConnell could find a new problem herding his simple majority votes on whether to hear from the requested Democratic witnesses, for example, since the majority is pretty slim.  Of course, Roberts would then have to rule on whether Trump defenders could call the whistleblower and Joe and Hunter Biden. Or Rudy Giuliani and others.

Altogether, an activist Chief Justice could actually make this a trial again instead of a quiet, quick recitation that clears Trump of any wrongdoing or even questions of judgment.

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