WASHINGTON – When the president of the Supreme Court, John G. Roberts Jr., leaves his chambers in the Supreme Court, crosses First Street and enters the Capitol to preside over the impeachment trial of President Trump, he will leave behind an institution that prides itself on reason and decorum and between one marked by the partisan war.
The responsibilities of the head of justice in the trial are fluid and poorly defined, and are likely to be largely ceremonial. What is certain is that they will be in danger because of their reputation and that of their court.
“It’s not heavy work, but it’s going to put him in a very, very nasty role,” said Philip Bobbitt, a law professor at Columbia and author, with Charles L. Black Jr., of “Impeachment: A Handbook.” sure he will have ulcers. “
Any trial of presidential political trial pushes the president of the Supreme Court to unknown and inopportune ground, said Frank O. Bowman, a law professor at the University of Missouri and author of “High crimes and faults: a history of political trial for the era of Trump. “
“This one in particular is so poisonous,” said Professor Bowman, “that he will be concerned that any perception of bias towards any of the parties may damage the institutional legitimacy of the court.”
Court president Roberts already has a lot on his plate, much related to Trump. He is working on a Supreme Court file full of divisive matters, including three cases in whether to allow the disclosure of Mr. Trump’s financial records and one about Mr. Trump’s efforts to withdraw protection against deportation of young immigrants.
The Supreme Court is still recovering from a series of ugly confirmation battles that placed two of Trump’s nominees on his bench. And Court President Roberts has exchanged sharp comments with Trump, revealing a fundamental disagreement about the independence of federal judges.
It seemed to refer to the dispute in its annual report on the state of the federal judiciary, published on New Year’s Eve. “We should celebrate our strong and independent judiciary, a key source of national unity and stability,” he wrote. “But we must also remember that justice is not inevitable.”
And a goal was proposed for 2020, knowing that it would include political judgment. “As the new year begins, and we turn to the tasks before us,” he wrote, “each one should resolve to do our best to maintain the public’s confidence that we are faithfully fulfilling our solemn obligation of equal justice. Before the Law”.
If there was a good time for Supreme Court President Roberts to help determine whether Trump should be removed from office, this would not be the case. But he cannot fight with the Constitution, which mentions the president of the Supreme Court only once, and is in the context of a political trial.
“When the president of the United States is judged” Article I, Section 3 says, “the president of justice shall preside.” But the founding act says no more, and the role that the president of justice must play has been disconcerting.
The editors of the Constitution had considered that trials of political judgment were carried out in the Supreme Court. But they rejected the idea for fear that the judges will have to withdraw from an appeal if the president is prosecuted for the same conduct after being dismissed.
“Instead, the editors chose the Senate as the place for political trial,” said Professor Bobbitt. “But they had to replace the vice president, who is usually the president of the Senate, but here he had an obvious conflict of interest. They decided on the chief judge.
That constitutional design suggests that the president of the court would have “a ceremonial role to give some dignity to the proceedings,” said Professor Bobbitt. “You take the boss, with the majesty of his office, but you deprive him of any power so that he can still sit on an appeal of any criminal conviction.”
At the beginning of the trial, which could be as early as Wednesday, the first official act of Justice President Roberts will be to take an oath to “do fair justice.” He will then ask the senators to raise their hands and make the same promise. That scripted exchange will set the tone for the role of the president of justice in the proceedings, which according to the story will be limited.
In 1868, in the first presidential impeachment trial of President Andrew Johnson, “nobody knew what to do.” Brenda Wineapple wrote in “The Impeachers”, her story of the trial.
“The Constitution did not offer procedural guidelines to instruct the president of the court on how to preside over a trial trial,” Wineapple wrote.
The president of the Supreme Court, Salmon Chase, insisted on having a more than incidental role. “I wanted to pronounce on the admissibility of the evidence, subject to the vote of the Senate, and on the reliability of the witnesses,” Wineapple wrote. “His campaign to organize the Senate as a legal tribunal was largely successful.”
More than a century later, in the second presidential impeachment trial of President Bill Clinton in 1999, court president William H. Rehnquist did as little as possible.
It is likely that Chief Justice Roberts will follow the example set by the predecessor, for whom he served as a paralegal in 1980 and 1981 before Judge Rehnquist was elevated to president of the court in 1986.
The president of the Supreme Court, Rehnquist, was a student of political trial trials, and wrote a story about them, “Big Inquiries,” which was published in 1992. At the Clinton trial, he only issued a ruling of any consequence, but it was one that helped define the role of the president of justice. An objection was followed by then Senator Tom Harkin, an Iowa Democrat, who disagreed with the characterization of a Republican manager of the House of Senators who heard his presentation as “the distinguished jurors in this case.”
The president of the court, Rehnquist, sided with Mr. Harkin. “The Senate is not simply a jury,” he ruled. “It is the court in this case. Therefore, the lawyer must refrain from referring to senators as jurors. “
“It was a cunning move by Rehnquist,” Jenkins wrote, “because although he apparently reduced his authority, he inoculated it against complaints about impartiality on one side or the other. If the proceedings were developed, the senators were only to blame for them. themselves. ”
Years later, reflecting on his role in the Clinton political trial, the president of the Rehnquist Supreme Court dismissed himself, borrowing a line from “Iolanthe,” a favorite comic opera by Gilbert and Sullivan.
“I didn’t do anything in particular,” he said, “and I did very well.”
The most memorable election of the president of the Rehnquist Supreme Court in the trial trial was the locker room. He had become accustomed to wearing black judicial robes adorned with four gold stripes on each sleeve, and brought the improved attire to the Senate chamber.
The garment was inspired, as explained by the public information office of the Supreme Court in 1995, by one worn by the Lord Chancellor in a local production of “Iolanthe.” Friends of the president of the Supreme Court Rehnquist said the stripes were a bit refreshing, but others wondered if it fits the severity of the occasion.
In his 2011 memoir “Five Chiefs,” Judge John Paul Stevens recalled that the president of the court, Rehnquist, had urged his colleagues to consider similar ornaments in their own robes.
“We gave an immediate and uniform negative response to that suggestion,” Judge Stevens wrote. Court president Roberts has shown no inclination to personalize his robes.
According to Senate rules, the decisions of the president of the Supreme Court of Justice are provisional and can be annulled by a majority vote. “It would be as if a trial judge presided over a jury trial in which the jury always had the ability to cancel it by a vote of seven to five,” said Professor Bowman.
But former representative Thomas Campbell, who was a Republican member of the House Judiciary Committee during the Clinton political trial and is now a law professor at Chapman University, said he expected the decisions of Roberts Court President to remain firm.
“How would a senator feel about voiding a trial on the merits of the president of the court?” Professor Campbell asked. “I think ‘hesitant’ would be the adjective I would use.”
Professor Campbell suggested that Court President Roberts would not hesitate to reject the positions taken by Trump’s lawyers and said: “He would not feel intimidated.”
The public has only had glimpses of Supreme Court President Roberts since his winning presentation at his 2005 confirmation hearings. Senator Richard J. Durbin, an Illinois Democrat, said Roberts Court President “withdrew the trophy” for a prominent performance of a judicial candidate.
However, in 2009, the nation saw a misstep: the president of the court Roberts and the president Barack Obama managed to thwart the simple task of calling and responding to recite the presidential oath in the first inauguration of Obama.
A televised trial will subject Supreme Court President Roberts to intense and inconvenient scrutiny, he said Daniel Epps, professor of law at the University of Washington in St. Louis.
“Everything he does, his body language, his precise phraseology, will be disarmed,” said Professor Epps.
In his court rulings, the president of the Roberts court has generally been a reliable member of the conservative majority of the court.
The exceptions, two opinions that support aspects of Obama’s health law, one that rejects the Trump administration’s efforts to add a citizenship question to the 2020 census, have been hailed as statesmen by liberals and denounced as treason by conservative
In his 2016 presidential campaign, Trump called the president of justice “an absolute disaster.”
Last year, after Trump criticized an asylum ruling in saying he had been issued by an “Obama judge,” the president of the court issued an extraordinary statement: “We don’t have Obama judges or Trump judges, Bush judges. or Clinton judges. ” What we have is an extraordinary group of dedicated judges who do their best to make the same right to those who appear before them. “
At the trial trial, the president of the Roberts court will have two goals, said Julian Epstein, who served as chief Democratic lawyer for the House Judicial Committee during the Clinton political trial.
“It will look as ministerial as I can,” said Epstein. “That said, he will lean back to look impartial.”
Court president Roberts will resist any attempt by Senator Mitch McConnell, the majority leader, to deprive the procedures of his solemnity, Mr. Epstein added..
“Roberts represents the institutionalist in many ways,” Epstein said. “He believes in the institutions of the Senate and the judiciary and the separation of powers. In many ways, what McConnell is doing is helping anti-institutionalists, people who don’t take this process seriously. “
Professor Epps said that the president of the court Roberts is accustomed to conflicts, but only to a certain extent.
“He has to deal with a group of rebel judges, and there are serious divisions,” Professor Epps said. “But the court, divided as it is, is never as partisan as the United States Senate.”