Two and a half weeks ago on this site, this story was posted: Will Chief Justice Roberts Just Be a Mannequin in a Robe, or a Real Judge? Stay Tuned. It was an excellent synopsis of the unique and historically untested role of the Chief Justice of the Supreme Court in a Senate Impeachment Trial of a President of the United States, and the essay (by LeftOfYou) offers historical perspective and legal analysis. It didn’t make the rec list but I don’t think that had anything to do with the quality of the essay. I encourage everyone to read it carefully on this, the first day of the week that will see the House of Representatives submit one or more Articles of Impeachment to the Senate.
Here’s one particular portion of that diary that I would like to use as a jumping off point for presenting my suggestion to the Democrats in the Senate, as well as the House Managers who will be prosecuting this historically and Constitutionally vital Impeachment:
So, what if Chief Justice Roberts finds that the parties, or the Senate “triers of law and fact”, over which the Constitution requires him to preside, start engaging in practices prejudicial to impartial justice. He will find little guidance or direction in either past impeachments or ruling precedents, should he wish to exert his authority in order to insure that all of the parties, and the nation, itself, obtain a fair and impartial trial. But the Chief Justice will not be completely without sign posts as he faces what may be some very challenging rulings in days to come. He knows well the procedural norms that have come to define fair and impartial justice in the American system of jurisprudence.
Central to such trial norms are guarantees like fair notice of claims, opportunity to be heard, opportunity to discover opponents’ evidence in advance, the confrontation of opposing witnesses, the ability to compel production of witnesses and tangible evidence, and impartial rulings on relevance and admissibility in the proceeding. When and if Senate Majority Leader McConnell or the President’s defenders begin forcing votes that significantly compromise these ideals, Chief Justice Roberts will have reached his ultimate confrontation with his confirmation hearing promise to serve America as an impartial umpire calling balls and strikes. He will face the same dilemma if Moscow Mitch seeks to implement rules for the Senate trial that inherently hobble and prejudice a fair and impartial hearing.
That sentence that I bolded above succinctly describes the dilemma that Roberts is already facing, that being whether he will be seen as no more than a cipher going along with Senate Majority Leader McConnell’s explicit intention to rig the trial for President Trump, or whether he will be seen as an actual judge in the trial. The passage I italicized describes the basic standards of American Justice toward which the McConnell-led GOP has openly declared their antipathy in the upcoming Impeachment trial of Trump.
I participated in the comments section of that diary with one comment, some of which, with edits, will be the basis for the rest of this diary in which I will explain a way for the Democrats directly involved in that trial to give Roberts the opportunity to pursue the “Real Judge” course, and thereby salvage his historic legacy (which would be permanently and terminally tarnished by allowing himself to be used by McConnell), and to prevent the Senate trial from becoming a farcical, defendant-engineered coverup with absolutely no pretensions of Justice or Fairness, let alone Constitutional fidelity.
To wit:
The Dems in the Senate trial (House Managers or even Senators during the process of approving rules for the trial) should be ready to challenge that portion of the Senate rules — via immediate objection at the earliest opportunity in the process — that allows the Senate to overrule the CJ’s rulings at any point whatsoever. Those rules are not integral with the Constitution; they were written by a Republican Senator in 1986 and adopted without debate. Now is the time to conduct such a debate.
As far as I know. there’s only one rhyming couplet in the US Constitution and it directly applies here. It is in Article I, Section 3, Clause 6:
When the President of the United States is tried,
the Chief Justice shall preside...
Now that isn’t Eliot or Yeats, or even Ogden Nash, but it is pregnant with meaning (as my English profs would have noted back in the day). It is very specific in both its meaning and intention because it puts a clearly judicial emphasis on the unique class of Impeachment trails — and only those Impeachment trials — in which the defendant is a US President.
The reason for this, in my opinion, is that the Impeachment of a President is a confrontation between the Legislative body closest to the citizenry, the House of Representatives and the head of the Executive branch. The Founders, in their proverbial wisdom, decided that in this one type of Impeachment trial, the third, Judicial, branch of the government they founded must be inserted into the process in order for this most fraught species of Impeachment to be resolved in the absolutely fairest way possible — for all parties involved, in other words, for the entire nation and for posterity.
Now it must be acknowledged that there are two meanings in the Constitution for the word “preside.” There is the judicial meaning (as in, “Court is now in session, Judge _____ _____ presiding”), and there is the meaning attached to the Vice President’s designated role as President of the Senate, or the officer that presides over Senate proceedings. The former is a final determiner of procedure and fact in courtroom settings (see again the LeftOfYou passage I italicized above), and the latter is a glorified figurehead with only infrequent, minuscule, albeit critical, voting rights.
The presiding officer of a trial, iow, is a completely different animal than the presiding officer in a legislative session. “The Senate shall have the sole power to try” (the phrase that directly precedes the rhyming couplet above) is a very clear statement as to the context within which the Framers intended the CJ’s role to operate in a Presidential Impeachment trial. That obvious perspective and the points I mentioned regarding the context of “preside,” in a nutshell, provide an excellent pretext and a very potent argument against that aspect of the Senate Impeachment rules which gives the members of that body of partisans complete procedural control over the Chief Justice of the United States in a Presidential Impeachment Trial.
I hope those Democrats who are in a position to do so will drive this issue directly into the earliest stages of the Senate Impeachment trial, and do it with all the emergent passion that this moment in US history deserves. Future generations deserve it, as do we all at this moment. Anyone that thinks this is beyond the pale or outside the limits of permissible American political maneuvering, the question that needs to be asked of them is “Have you paid any attention at all to American politics in the last 40 years?”
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Beyond the historical imperative, there are also several purely strategic reasons for doing this:
1) To make it clear at the outset and in a very dramatic, documented fashion (even more so than has already been proclaimed — via a historic inflection point) that this Impeachment trial is in the process of being fixed by the President’s allies;
2) To put the onus on Roberts himself at the outset so that he’s on official notice that he cannot act as the GOP’s Neutered Figurehead without having to bear that shameful sobriquet throughout history;
3) To let Roberts further be advised that the precepts of a fair trail (again, refer to the italics in the blockquote above) are his and only his to enforce — or to discard;
4) And to let the whole country emphatically know that the Dems aren’t going to stand aside while an actual Rape of the Constitution is underway.
As to possible outcomes:
1) If Roberts overrules such an objection, then the Dems should file an immediate emergency suit at the SCOTUS as a further demonstration of their willingness to fight for fairness and accountability. Even though the high court would undoubtedly side 5-4 with Roberts, at that point it would be the Democrats positioning themselves in this election year as being determinantly on the side of Fairness and Justice (noting that they were, after all, asking for a conservative Justice to be allowed assume a traditional, conventional judicial role in the trial). And the critical mandate of restoring the Supreme Court to those same principles of Fairness and Justice, which only the Democrats would be able to do at that point, would be emphasized in headlines across the country.
2) If McConnell pulls a procedural rug out from under Roberts, somehow not even allowing him to address the objection, then the Dems should file an immediate emergency suit at the SCOTUS in order to test that body as to whether it is willing to uphold the most rudimentary concept of American rule of law in the most impactful trial setting that the Constitution provides for. At that point the Democrats would be pitted against the GOP in the SCOTUS chambers, and the nation and the world would be the jury. The most likely outcome in that situation, imo, is that the highest court in the land would stand behind the obviously meaningful role that the Constitution has conferred onto its Chief, especially given the snub a McConnell sleight of hand would represent, and not relegate the Chief Justice of the Supreme Court of the United States of America to a status lower than a baseball umpire, the moniker Roberts conferred upon himself. (I don’t think McConnell would force it to go in this direction for just that reason.)
3) If Roberts does sustain the objection and then the GOP majority overrules him in a procedural vote (the most likely scenario, imo), then the Dems should, again, file an immediate emergency suit at the SCOTUS (although the GOP would be idiots to overrule him since the SCOTUS would undoubtedly side with Roberts by a vote of 8-2 or some such in that case — the main reason I, counterintuitively, give this the “most likely” tag, as they would be urged to do so by their Idiot in Chief to whom they cower). In that case (whether McConnell, via Senate vote, has overruled Roberts prior to a SCOTUS decision or not), it’s a massive, historic victory for the Democrats and a template for Impeachment trials (even when the CJ isn’t presiding) in all Impeachments going forward. It would, additionally, overshadow a GOP-engineered hung-trial,* letting Trump off the hook, given the evidence and testimony that such a ruling would allow to be presented in front of the nation and the world.
If #1 occurs, then Roberts will be looking in the other direction, from that which is depicted in the photo above, for where his legacy will reside in the annals of the US Judicial Branch, and the GOP majority in the Senate will share that branding. Oh, and all Democrats up for election in 2020 will have their most potent speaking point.
That’s why I think that the latter result, #3, could well prevail if they decide to pursue this approach to restoring the Republic, or keeping it, if you prefer that terminology.
If, on the other very dismal hand, the Dems allow Roberts to get away with just shrugging as the GOP puts the fix in for Trump, then the Rape will have been committed in full sight of the nation and the world and the status of Roberts’ legacy going forward is barely worth mentioning.
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* The word “acquittal” should never be used with respect to any Impeachment trial vote that doesn’t result in a 2/3 “guilty” tally. It is, at best, analogous to a hung jury. “Hung jury,” or “mistrial” should therefore be the only ways which Impeachments that end in Senate votes of less that 2/3 for conviction (unless the vote is overwhelmingly “not guilty,” of course) should be referred to. The fact that such outcomes in the past have been deemed “acquittals” is no reason to continue that mistake.