Columns, Congress, Constitutional Law

Rehnquist Versus Chase: History Offers Roberts Few Models For Defining His Role

Below is my column in The Hill newspaper on the uncertain role of Chief Justice John Roberts as the presiding officer of the Senate impeachment trial. I have already raised some questions over Roberts’ refusal to read a question from Sen. Rand Paul after Paul insisted that the question did not ask for or use the identity of the whistleblower. Even more significant questions could arise as early as today.

Here is the column:

After presiding over the impeachment trial of President Clinton, Chief Justice William Rehnquist summed up his experience with a line from Gilbert and Sullivan. He declared, “I did nothing in particular, and did it very well.” In some ways, Rehnquist had the preferred experience of the “presiding official” in assuming the level of involvement of a ficus plant.

Chief Justice John Roberts may not have the same luxury with the trial of President Trump. With the leaking of parts of a book manuscript written by former national security adviser John Bolton, Roberts may have to rule on key, and even determinative, matters. In doing so, Roberts may have to look not to Rehnquist but to Chief Justice Salmon Chase, who presided over the 1868 impeachment trial of President Johnson. Rehnquist had the luxury of doing nothing in particular in that Senate trial with an outcome preordained by the mutual agreement of the two parties. Roberts is in the midst of a trial of a very different sort, with an array of difficult questions and no Senate consensus. Within days, senators may learn the meaning of his “rules of order” in an impeachment trial that could spin out of control.

The Bolton leak puts Roberts in a perfect nightmare. Under Senate rules, Roberts “may rule on all questions of evidence, including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions.” Indeed, that would cover a motion for determining the relevancy of witnesses as well as the decisions on allowable questions for those witnesses. But his decision could be overturned by a majority of senators. It is not true, as argued in a New York Times column, that such decisions would take a two-thirds vote to overturn him. However, he will be in largely uncharted waters with only two predecessors to guide him.

Rehnquist, by his own words, proudly did “nothing in particular” in the impeachment trial, while Chase did a lot and wanted to do a lot more. The two could not be more different. Roberts is a buttoned down conservative Republican who abhors the court playing transformative roles in political areas. Chase was a politician before, and some critics would say during, the Johnson impeachment. He had a robust view of his role as presiding officer. Indeed, if Chase were to choose a Gilbert and Sullivan quote, it would have been quite different than the one picked by Rehnquist. Chase would more likely have quoted the character Yum Yum, who said, “I mean to rule the earth, as he the sky. We really know our worth, the sun and I.”

Chase was not only a former politician, serving as Ohio governor and as a senator, but he had future ambitions. He lost the presidential nomination to Abraham Lincoln and was not shy about mixing his political and judicial interests. Before sitting as the judge during the trial of former Confederate States president Jefferson Davis, Chase had feared that convicting Davis would undermine his chances with the south in the next election. Chase solved that problem by telling a lawyer for Davis to argue that Davis could not be convicted of treason because he had forfeited his own citizenship. When the lawyer made that argument, Chase quickly dismissed the case.

Chase also faced another dilemma. If Johnson was removed with the vice presidency vacant, Senate Pro Tempore Benjamin Wade, an Ohio senator and a political rival of Chase, would become president. Chase made no secret he favored the acquittal of Johnson. Chase claimed that, since the Senate had fashioned itself as a court, he could vote on the merits as a member of that court in the event of a tie. This was a highly contestable position and, in my opinion, just wrong as a matter of constitutional law.

Fortunately, however, it did not come to that. Chase was sustained in his evidentiary rulings and Johnson acquitted by one vote. In one dispute, a challenge was raised over questions for General William Sherman on the grounds that it would improperly recall a witness. Chase shut down the objections, declaring, “The chief justice thinks it is entirely competent for the Senate to recall any witness.” Ironically, while less inclined to play a more dominant role than Chase, Roberts may have it forced upon him.

He may be asked to rule on the relevance of witnesses like Hunter Biden or the Ukraine whistleblower, as well as issuing subpoenas for people like Bolton. Democrats are eager to force a ruling from Roberts to prevent the White House from going to a district court, thus starting a longer litigation process. However, once they cross the rubicon on witnesses, they could find Biden and the whistleblower waiting on the opposite shore. It is more likely that Roberts will defer to the Senate majority on the need for such witnesses, rather than impose his judicial will on the course of the trial.

On Bolton, it might get even more sporty for Roberts. If Bolton is called to testify in the impeachment trial, he would appear in a deposition where the White House could object, without cameras, on grounds of immunity and executive privilege. If Roberts were to rule on it, he could well reject the immunity claim, as he should in my view, but he would have to grapple with executive privilege. A communication between a president and his national security adviser is a core protected area under Supreme Court precedent. This is a noncriminal matter, unlike the case of President Nixon in which an independent counsel was seeking evidence. However, it is an impeachment. Roberts is likely to allow the testimony, but he would need to look at each area and communication for any possible privilege bars.

If Roberts starts to rule against either party, he certainly knows that his role will become increasingly controversial in the trial. The decision in Bush versus Gore was bad enough for the Supreme Court, which was criticized for effectively picking the next president. Roberts could be accused of effectively removing the current one. He may then be the subject of another fitting Gilbert and Sullivan line, “No one can have a higher opinion of him than I have, and I think he is a dirty little beast.”

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.

66 thoughts on “Rehnquist Versus Chase: History Offers Roberts Few Models For Defining His Role”

  1. Just out.

    DOJ admits in court to having 24 emails showing Trump working aid to Ukraine back in June. Says they must be kept secret for security reasons.

    1. The President working on foreign policy. Imagine that. He might disrupt what The Interagency agreed on. Must impeach.

    2. DOJ admits in court to having 24 emails showing Trump working aid to Ukraine back in June.

      Those rogue agents in the DOJ, telling people that the President communicates with people on foreign policy and was working on providing aid to Ukraine back in June. Did they mention anything about 33,000 missing emails and computer hardware that was destroyed?

  4. Bolton: Cipollone at meeting where Trump told him to work over the Ukraine

    https://www.nytimes.com/2020/01/31/us/politics/trump-bolton-ukraine.html

    Parnas’s attorney, in a letter to McConnell, alleges information showing Pompeii, Perry, Barr, Nunes and others involved in the Ukrainian shakedown.

    Now that the Senate majority – representing 15 million less citizens than the minority – has completed its cover up and has married the GOP to Trump for life, while ignoring the wishes of over 70% of Americans, the action can move back to the House. Can you say Benghazi – The Sequel?

    Good times

    1. PS Also listed in the letter is Karen and Allan’s go to source John Solomon.Already released on him is his email to Parnas getting his review of an about to be released “report”. More supporting documents are promised.

      1. Twiddle Dee and Dum pretend it’s over, when with only a slim to none chance of removing Trump, this is about November. Faced with the rational choice of witnesses – 1st impeachment Senate hearing ever without them – GOP Senators desperately went against the will of Americans (including a plurality of Republicans) to keep the Trump presidency from imploding and are now complicit in what is yet to come.. Several said “yeah, he did it” while claiming greater concerns, like staying in power for the short term. You all know he did too, or are dumber than a box of anvils, and you know more evidence is forthcoming. Something tells me it will be covered.

        Hey, here’s hoping he doesn’t have one of those TIA episodes he frequently suffers from during the SOTU.

        1. bythebook – actually the Clinton trial only had 3 witnesses that had been heard from by Starr, before, and were in the report. It is the first impeachment trial without a crime alleged. There were 17 crimes alleged in Clinton. In Johnson, they specifically named the crime a “High Misdemeanor.”

      1. After the vote on Wednesday, he and Natacha will be back to ‘read the Mueller Report’ and ‘collusion has been proved’.

  5. Has Elizabeth Warren suggested yet that a 9 year-old trans youth should make these decisions instead of Roberts???

    Squeeky Fromm
    Girl Reporter

    * See https://www.realclearpolitics.com/video/2020/01/30/sen_elizabeth_warren_young_trans_person_will_choose_my_secretary_of_education.html “Sen. Elizabeth Warren (D-MA) speaking at a presidential campaign stop at the NewBo City Market in Cedar Rapids, Iowa, said that she would only appoint a Secretary of Education that a 9-year-old trans youth she met would interview and approve of.”

    1. Squeeky – that is the stupidest job evaluation I have ever heard of. I am sure the Senators will be happy the new Sec. of Ed has been vetted by a 9 yo trans student.

      1. Well, I agree with you. Pure naked pandering to the Mentally Ill Trans Community. Somebody deserves an Irish Poem out of all this:

        T Time???
        An Irish Poem by Squeeky Fromm

        There once was a 9 year-old tranny –
        Whose political sense was . . . uncanny???
        Oh Contraire! That’s sooo dumb!
        Where did that thought come from???
        Did Warren pull it from her fanny???

        Squeeky Fromm
        Girl Reporter

            3. Girl Squeeky has a LOT to say but still finds herself unable to reply in any way to my frequent:

              Squeeky Fromm! I thought that your name rang a bell. Could you be that crazed follower of Charles Manson, named Lynette Squeeky Fromm? Got decades in prison for attempting to assassinate President Gerald Ford? If you are not, why in the world would you want to adopt that name?

              1. RDKAY – Squeeky answered this question about a year ago. Why do you always shout your name? 😉

                2. Not shouting. That’s YOUR interpretation.

                  Squeeky, I apologize for not knowing that you answered the question about whether you are the Manson cultist Lynette Squeeky Fromm. And, if you are not, why you use that alias? I cannot find your (alleged) year-old statement. I hope it is not too much trouble for you to re-state the facts pertaining to your real identity and why you use that name here (if you are not Lynette). There probably are others who would like to know, too. After all, in order to judge whether anything you say should be taken seriously, one needs to know whether or not you are Lynette

                  1. RDKay – I unshouted your name for you. Using all-caps is considered shouting and regardless of your age, you should be aware of this. You can still do it, just asking why you do it?

                    1. To PCS – I do it because I like it that way (and I do not consider it to be shouting). Also, PCS, all caps saves me a key stroke or two. If you don’t like it, just put your fingers in your ears.

                    6. RDKay – really, no needs my approval. However, I appreciate your comment.

  9. NEWSFLASH

    As for the question of the dominion of the U.S. Constitution, Virginia arbitrarily nullified the 2nd Amendment of the Constitution yesterday. The MSM began a 2nd Amendment nullification promotion on its programming (i.e. propaganda/indoctrination), Station 19, set in Seattle, last night. Both as America watches the Congress egregiously abuse its power in an attempt to nullify a fair and legitimate election and usurp the power of the executive branch.

    Where is the Supreme Court of the United States as the Constitution of the United States is being shredded?
    ______________________________________________________________________________________

    “For extreme diseases, extreme methods of cure, as to restriction, are most suitable.”

    – Hippocrates
    ___________

    America is in a condition of hysteria, incoherence, chaos, anarchy and rebellion.

    President Abraham Lincoln seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”

    President Donald Trump must now seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”

  10. As for the question of whether the chief justice could break a tie if it were to occur, a report from the Congressional Research Service put it this way: “The Chief Justice, when presiding over an impeachment trial, would not be expected to vote, even in the case of a tie. If a vote on a question results in a tie, the question is decided in the negative.”

  11. Article 1, Section 3 subordinates and causes to be inferior to the Senate, any and all other entities, on all trial aspects and questions. No other entity, including the “rules” and Justice Roberts, has any power over the Senate trial equal or superior to that of the Senate. The Senate shall decide on the admission of Rand Paul’s and every other related question. The Senate has “sole power.”

    Article 1, Section 3

    The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

  12. Here is a role: Motion to dismiss the articles of impeachment for failure to state a cause or claim for removal of office.
    Judge:. Motion granted.

  13. Roberts is not political? He was instrumental in giving us Citizens United which allowed Moscow Mitch to have huuuuuge amounts of amoney with which to bribe other Republicans.

    1. Roberts is not political? He was instrumental in giving us Citizens United which allowed Moscow Mitch to have huuuuuge amounts of amoney with which to bribe other Republicans.

      The talking points they send you are cr!p.

      Citizens United originated with the legal harassment of a man who had produced online videos slamming Hellary. It was the contention of his harassers that he was in violation of campaign finance laws.

      The position of partisan Democrats in re Citizens United is that it is permissible for corporations in cahoots with the Democratic Party to advance their viewpoint (among them the National Education Association and The New York Times) but impermissible for anyone else to do so, or to form corporate bodies to advance viewpoints partisan Democrats dislike. The reflexive repair to posturing and the complete lack of self-awareness are one more piece of evidence, in case we needed one, that partisan Democrats are unfit to be put in charge of a Chia pet.

  14. I’ve wonder for a few year, since Obama Care, what’s CJ J Robert’s problem….

    Then I seen the other day he’s logged on the Jeffery Epstein’s plane & elsewhere.

    I’ve noticed a major trend with all these Never Trumpers/American haters, they all seem to have ties to ill got money or to pedos/child murder/selling baby parts,(Meat Head), Satanism, etc. AKA Weird Sh*t….

    Cockroaches meet Light!

    1. Then I seen the other day he’s logged on the Jeffery Epstein’s plane & elsewhere.

      Where did you see that?

      1. You’ll have to do some work yourself or wait me to back it to.

        …… the editor, https://nationalfile.com/, was on the War Room with Owen Shroyer.;

        I posted it the other day here. I think it was the 1/28/29 show around 40:00 in?

        https://banned.video/channel/5b9301172abf762e22bc22fd

        I scan so much stuff I’m not sure right not. I think a bit about. I just heard this week & remember clearly as I recall all those heads are rolling.

        This stuff is bigger then some, Turley, are letting on.

        Now give these guys some money damn’t!

        Vets4childrescure.org

        They’re working with law enforcement, high/low, to clean that type crap up.

      2. Sorry, I put 3 links in my last post here & it’s gone.

        I think it’s on the 1/28/20 War Room with Owen Shroyer about 40/00 min in.

        https://banned.video/channel/5b9301172abf762e22bc22fd

        I’ve posted it here a few days ago.

        I scan so much stuff I’ll think about it.

        It’s important.

        As I tried to post before:

        Damn’t, give these people some money, they’re trying with law enforcement to clean that pedo crap up!

        https://vets4childrescue.org/

  15. Why is everybody talking about calling Hunter Biden??? I think they should be talking about calling Shotkin, the Ukrainian prosecutor who got fired because of Joe Biden’s extortion and bribery and quid quo pro crap.

    Squeeky Fromm
    Girl Reporter

    1. Come on Squeeky. You still have not answered my earlier question:

      “Squeeky Fromm! I thought that your name rang a bell. Could you be that crazed follower of Charles Manson, named Lynette Squeeky Fromm? Got decades in prison for attempting to assassinate President Gerald Ford? If you are not, why in the world would you want to adopt that name?”

      Don’t leave us all in suspense, Squeeky. Are you Lynette?

  16. Make the tape of Biden using funds as a bargaining chip in dealing with Ukraine a matter of official record. A demonstration of foreign relations done right.

    Argument: Even if Trump did use funds as a quid-pro-quo (it is moot whether or not he did, so why fight it) that is ordinary foreign relations (see tape). It is right and proper to investigate a presidential candidate’s links, if any, to a foreign power directly or through a family member.

  17. “He declared, “I did nothing in particular, and did it very well.” In some ways, Rehnquist had the preferred experience of the “presiding official” in assuming the level of involvement of a ficus plant.”
    ****************************

    He’s the referee between two warring parties. Like a good caddie his job it to show up, keep up and shut up unless asked.

  18. Roberts already over-ruled a question, but the Senator decided not to die on that hill. They seem to have the votes to acquit.

    1. They’ve always had the votes to acquit. The question is whether they have the votes to shut down this absurd pantomime today. There have been 46 votes to do so right along. Senators Alexander, Gardner, and Tillis are now ready to wrap it up. Sens. Collins and Romney want witnesses. Sleaza Murkowski cannot make up her mind. Manchin of West Virginia has offered he wants to hear from Hunter Biden. Then there’s the question of whether or not John Roberts has a tie-breaking vote and the number of votes required to call or block a call for witnesses. (Collins shuck and jive is forgiveable. That of Romney and Murkowski is not).

        1. Anonymous – given the troubles at Disney, I think a divorce is in the offing.

    3. Paul,

      No way in hell the Sen can acquit yet! Schitf/Nader/Amer hating Commies have to hear from Stoorrrrmmy Daniels 1st.

      Just have her ride into the Senate naked on a white horse, they’/Senate, are all so pure after al. LOL;)

      Then we can wrap things up.

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