It is becoming ever clearer that the Republican majority in the Senate under the leadership of Mitch McConnell is more interested in protecting President Trump than in investigating his alleged misdeeds. This has led some to hope that Chief Justice John G. Roberts Jr. may play a more active role in setting the rules for the trial. There is excellent reason to expect that these hopes will be dashed. Here’s why.
Some hope that Roberts has a lot of leeway to set the rules
The Constitution says that the chief justice serves as presiding officer when the president is on trial in the Senate on charges of having committed impeachable offenses. When other government officers face such a trial, anyone from the vice president to the most junior member of the Senate might serve as presiding officer, just as they would for any other Senate business. The Constitution does not say which, if any, powers the chief justice might have when performing those duties.
Supporters of the president’s impeachment and removal hope those powers are expansive. For example, some hoped that Roberts would refuse to let McConnell, Lindsey O. Graham and other Republican senators take the oath to sit as judges in the impeachment trial on the grounds that they had already demonstrated their inability to do impartial justice. Martin London, who served as principal lawyer for Vice President Spiro Agnew, argued in Time magazine that because the Constitution specifies that the chief justice is the presiding officer of an impeachment trial, Roberts should simply ignore any “unconstitutional Senate rules” that attempted to constrain his role.
Many have argued that Roberts should issue subpoenas to witnesses favored by the House managers and potentially block witnesses desired by the president’s defense counsel. Twitter commenters are angry that Roberts did not intervene to issue sanctions against Trump’s defense team for misstatements of fact in their opening arguments. Some called for the chief justice to hold Trump in contempt of court for posting “threatening” tweets about House impeachment manager Adam B. Schiff. Television analysts and former prosecutors are inclined to think the chief justice should act like any other judge overseeing a trial and manage the lawyers, witnesses and “jurors” as he sees fit.
But Roberts’s role is quite limited
Senate rules and practice, however, indicate that Roberts’s powers as presiding officer are few and limited. This may explain why, like his predecessors in presidential impeachment trials, Chief Justice Salmon Chase and Chief Justice William H. Rehnquist, Roberts has not attempted to exercise that kind of activist role. He is not likely to start doing so.
Although Roberts is the U.S. chief justice, he is not acting as a federal judge. When he presides over the Senate, he operates under the same rules as anyone else who sits in the chair of presiding officer.
The chief justice’s job in a Senate impeachment trial is not to impose his own views about how best to conduct a trial. It is simply to administer the rules that the majority of the senators have themselves put in place. If a majority of the senators do not agree with how the chief justice is administering those rules, they can overrule him at any time. The chief justice has no authority to take unilateral actions in the impeachment trial and no ability to make the senators do anything that a majority of them do not want to do.
If Senate rules tolerate lawyers lying in the course of their arguments in an impeachment trial, the chief justice has no authority to prevent them from doing so. If Sen. Susan Collins requests that the chief justice take note of the general Senate rule barring speakers from impugning other senators, the chief justice is expected to respond as any other Senate presiding officer would. If senators prefer that every senator be allowed to participate in the trial, the chief justice has no authority to force their recusal. If the senators prefer to hear from no witnesses, the chief justice has no authority to make them.
This is not to say that he has no role at all. The chief justice could make initial rulings on motions, subject to being overridden by a majority of the senators. It would not be surprising if Roberts instead chose to simply ask for the sense of the Senate on such motions and hence avoid taking any position himself. But he might well make an initial ruling on a number of motions that might be made over the course of the trial, including on whether a witness could properly refuse to answer a question on the basis of executive privilege. Any such rulings would be subject to override by the majority of the senators.
Likewise, the chief justice has no authority on his own to issue subpoenas for witnesses. Rule V of the impeachment trial rules does not say he can issue “orders.” It says only that he can issue orders that have been “authorized by these rules or by the Senate.” He can similarly issue subpoenas only as “authorized … by the Senate,” which is to say, pursuant to a vote of the Senate to issue them. Similarly, Rule VI specifies that “The Senate shall have power to compel the attendance of witnesses.” Not the presiding officer, but “the Senate.” The history and practice of the Senate emphasize that the majority of the Senate makes these decisions, not the presiding officer.
The senators are not passive jurors in an impeachment trial. The senators are the judges themselves of whether a president has committed impeachable offenses. The Senate as a body is given the exclusive authority to try all impeachments under the Constitution. The members of the Senate have never been inclined to delegate substantial authority over how an impeachment trial will be conducted to a presiding officer, whether that presiding officer is the chief justice or anyone else. A presiding officer who attempted to seize that authority would quickly find himself reminded that his role is a more modest one.
Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and a visiting professor at the Harvard Law School. Ira Goldman served as counsel for 14 years in both the House and the Senate.