A Look At How The Supreme Court Chief Justice May Preside Over Senate Impeachment

Jan 9, 2020
Originally published on January 9, 2020 6:36 pm
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House Speaker Nancy Pelosi said today she will send the Senate the articles of impeachment soon. But the House and Senate remain at loggerheads over the timing and details of President Trump's impeachment trial. Whatever they are and whenever the trial takes place, the man at the center of it all will be Chief Justice John Roberts. NPR legal affairs correspondent Nina Totenberg has more.

NINA TOTENBERG, BYLINE: The Constitution says that the chief justice shall preside over the Senate trial of a president. Those who envision a powerful role for the chief justice point to Senate rules that would allow him to make decisions on, quote, "all questions of evidence." In theory, at least, that might enable Roberts to rule on motions from the House managers seeking to compel testimony from White House aides, like former national security adviser John Bolton and others who, until now, have been blocked by President Trump from testifying.

Yet, under Senate rules, it is the senators themselves who have the first and last word. They establish the procedures for the trial and can overturn any of Roberts' rulings.

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WILLIAM REHNQUIST: The Senate will convene as a court of impeachment.

TOTENBERG: The extent of the chief's powerlessness, however, was driven home to Chief Justice William Rehnquist at the beginning of President Clinton's Senate trial in 1999.

JAMES ZIGLAR: He asked me - well, how do I turn on my microphone? And I looked at him. And I said, you don't; we control that.

TOTENBERG: James Ziglar was the Senate sergeant-at-arms at the time.

ZIGLAR: I don't know if shock's the right word but certainly a sense of dismay to him that even though he was going to be the presiding officer over this so-called jury of senators, that he really had absolutely no control of his courtroom.

TOTENBERG: The Clinton trial was conducted in a far different time. The Republican majority leader and the Democratic minority leader worked closely to conduct the trial in a dignified way. And the rules for the trial were ultimately established by consensus and a unanimous Senate vote. The president, while controversial, had never attacked the Supreme Court or the chief justice personally. And the high court membership itself had remained stable for five years without change. None of that is true today. Trump's relationship with Chief Justice Roberts has been rocky at best during the 2016 presidential campaign. Trump castigated him for failing to strike down Obamacare, calling him disgraceful and more here in an interview with ABC's This Week.

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DONALD TRUMP: Justice Roberts turned out to be a nightmare for conservatives.

TOTENBERG: Although the president and Roberts have been cordial in their rare personal interactions. Trump has repeatedly cast aspersions on the integrity of judges whose decisions he disagreed with, a practice that finally prompted a rare rebuke from Roberts. And, of course, a snarky tweet from Trump firing back at the chief justice. Roberts, a conservative appointed to the court by President George W. Bush 15 years ago, has tried mightily to convey an image of the court as apolitical.

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JOHN ROBERTS: Our role is very clear. We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them. That job obviously requires independence from the political branches.

TOTENBERG: But that image has proved harder to maintain as the court, with the addition of two Trump-appointed justices in the last two years, has veered to the right with the promise of an even more dramatic conservative turn in the near future. Even as Roberts will be presiding over the Senate trial, he and fellow justices are hearing nearly a dozen blockbuster cases this term on issues ranging from abortion to immigration and even a series of cases in which Trump is seeking to block subpoenas for his financial records.

With that menu dominating his day job, it is unlikely that Roberts will want to insert himself as a major player in the impeachment trial. Rather, he's likely to use as his role model the man he once clerked for - Chief Justice Rehnquist. As presiding officer at the Clinton trial, Rehnquist learned to rely on the Senate parliamentarians for guidance. Robert Schaffer was one of his law clerks back then.

ROBERT SCHAFFER: I think he enjoyed sort of being part of history in that sense, but he understood that he had a very limited role.

TOTENBERG: Neil Richards, a professor at Washington University Law School in St. Louis - another Rehnquist clerk - puts it this way.

NEIL RICHARDS: He was a hundred percent focused on his job as presiding judge, no matter how boring or tedious the proceedings.

TOTENBERG: Former Senate sergeant-at-arms Ziglar, who had once clerked on the Supreme Court himself, remembers that Rehnquist was often grumpy at the unplanned breaks that were supposed to be brief but could last for one or two hours or more. So he took the chief to lunch.

ZIGLAR: I said, Chief, what can I do to make you less grumpy? And he said - well, he said, I love cookies and cream ice cream and chocolate chip cookies.

TOTENBERG: After that, whenever there was a break, Ziglar would trigger the call for ice cream and cookies. And it seemed to work - not enough, though, to deal with the boredom of those unplanned breaks. On one occasion, Ziglar found the chief with his three clerks sitting in the ornate, gilded President's Room playing poker.

ZIGLAR: I looked at him, and I kind of smiled. I said Chief, you may not know this, but I'm also the chief law enforcement officer in the Senate. And gambling is against our rules.

TOTENBERG: Ziglar told the group he needed to do something but would be back shortly.

ZIGLAR: Then I walked back in. The cards were still on the table. But instead of nickels and dimes and pennies, there were little pieces of paper on which was written one, five and 10.

TOTENBERG: Chief Justice Roberts may find the going a lot less boring in the upcoming Senate trial, especially if the rules are often in dispute. Word is that he, like Rehnquist before him, has asked that the trial begin on court days at 1 o'clock in the afternoon so that Roberts can preside over the court's oral arguments in the morning.

In addition, Roberts will have a very full plate of work, including writing his share of opinions, plus the administrative work at the court. He likely will aspire to Rehnquist's puckish evaluation of his role in the 1999 Senate trial. Borrowing a line from Gilbert and Sullivan's play "Iolanthe," Rehnquist opined - I did nothing in particular and did it very well.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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