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John Roberts, A Nation Turns Its Lonely Eyes To You

The chief justice can help give legitimacy to the Senate's impeachment trial.
January 21, 2020
John Roberts, A Nation Turns Its Lonely Eyes To You
WASHINGTON, DC JANUARY 16: Supreme Court Chief Justice John Roberts arrives to the Senate chamber for impeachment proceedings at the U.S. Capitol on January 16, 2020 in Washington, DC. On Thursday, the House impeachment managers will read the articles of impeachment against President Trump in the Senate chamber and the chief justice of the Supreme Court and every senator will be sworn in. (Photo by Drew Angerer/Getty Images)

For only the third time in our history, the chief justice of the United States has taken an oath “to do impartial justice” in the impeachment trial of a president. And the chief’s first act was to administer the same oath to all senators present.

The Constitution makes clear that this oath-taking is not an empty ritual. The chief justice and senators already swore to support and defend the Constitution when they took office. So why does the Constitution require a new and different oath for an impeachment trial?

In an ordinary criminal trial, the accused has a constitutional right to “an impartial jury.” But the Constitution specifically leaves impeachment verdicts to senators, rather than a jury. Nonetheless, the Framers signaled an intent to hold senators to the same standard of fairness as jurors by requiring that they take the equivalent of a juror’s oath. The Constitution does not specify wording, but since Andrew Johnson’s trial in 1868, the oath launching impeachment trials has been the promise to do impartial justice.

The American jury oath for this same purpose dates back to the 1623 laws of Plymouth colony. In 1830, an Illinois jury worried about the meaning of the oath. They had sworn to follow the law, but how did they know what the law was?

The foreman sent a note to the judge that today’s senators would do well to consider. The Illinois jurors wanted to know, using their vernacular, “whether [what] you told us was raly the law, or whether it was only jist your notion?”

So what is the law in an impeachment trial? Senator Mitch McConnell claims impartial justice can be done without giving House managers or the president their standard legal right to call witnesses and produce documents. So far, Lamar Alexander, Susan Collins, Lisa Murkowski, and Mitt Romney are the only Republican senators to challenge McConnell on this distortion of long-established principles of fairness in the search for truth at trial. Alexander, Collins and Romney said they were open to calling witnesses. Murkowski said she was “disturbed” by the conflict between the oath to do impartial justice and McConnell’s promise to coordinate strategy with Trump.

Other senators should be asking where Sen. McConnell derives his notion that the law allows an impeachment trial without witness testimony or documents placed in evidence. History is against him. The Senate has heard from witnesses or had access to depositions in every one of the 15 completed impeachment trials in its history.

Senate impeachment rules appear to say that the “law” on calling witnesses is whatever a simple majority of senators say it is.

This interpretation cannot be correct.

For instance, it would be patently unfair if 51 senators voted that the White House lawyers could call their desired witness (maybe Hunter Biden) and introduce their documents, but that House managers could not reciprocally call former National Security Advisor John Bolton (who states he has relevant testimony).

A majority-derived rule that patently violates the principle of impartial justice cannot be legitimate.

Which brings us to Chief Justice John Roberts. If senators divided equally on whether to call witnesses, Roberts would cast the tie-breaking vote. In Andrew Johnson’s impeachment trial, Chief Justice Salmon Chase twice broke 50-50 ties.

The Senate’s standing rules on impeachment give the chief justice discretion to “rule on all questions of evidence.” When Roberts rules, a majority of the Senate may overrule him. But if they don’t, his decision “shall stand as the judgment of the Senate.”

In ruling on the motion of a Democratic or Republican senator to subpoena a witness said to have relevant testimony and documents, the chief justice would have to reconcile two strands of his judicial philosophy in determining how “to do impartial justice.” On one hand, Roberts cares deeply about maintaining public faith in the judiciary’s integrity and fairness; and on the other he criticizes judicial activism (as in his “hands off” approach to state gerrymandering). Tellingly, however, in the chief justice’s 2019 year-end report on the judiciary, he called upon federal judges to “maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”

In an impeachment trial, the chief justice should give priority to maintaining the integrity of the system, even if this requires him to play a more active role than Chief Justice Rehnquist played in the Clinton impeachment trial. In Clinton’s case, Rehnquist was able to stand back because key witnesses and documents had already been made available to the House. Trump’s refusal to follow the Constitution and cooperate with the House makes it imperative for Roberts to conduct a real Senate trial, not the sham proceeding McConnell threatens. Senators could, but probably would not, go against clear evidentiary rulings from the chief justice on matters of law, which would serve as a benchmark of fairness for the public.

The nation needs Roberts to perform a fundamentally “conservative” function—preserving the constitutional balance by letting an impeachment trial work as the check on an autocratic presidency the framers designed it to be.

Jeffrey Abramson and Frederick Baron

Jeffrey Abramson, author of We, the Jury,  teaches constitutional law at the University of Texas School of Law.
Frederick Baron, former associate deputy attorney general and director of Justice Department Executive Office for National Security, is senior counsel at Cooley LLP.