by Frank Bowman

Several days ago, I composed for SCOTUSblog an analysis of the likely role of Chief Justice Roberts in the upcoming impeachment trial. You can read that piece at this link.

Mr. Whit McKinley, a learned attorney from Jackson, MS, read my piece and sent me a thought-provoking response by e-mail. With his permission, I reproduce it below:

Professor Bowman 

Your article on SCOTUSblog is a good piece on the constitutional text and likely role of the Chief Justice in President Trump’s impeachment trial.  I enjoyed it greatly. 

On balance, I agree that Chief Justice Roberts is unlikely to be, or would wish to be, the captain of the ship in the impeachment trial (to mix a metaphor).  However, I do believe that you overstate your case that merely “having a judge preside implies that the process will be akin to a conventional judicial trial.”  In two of the cases that you cite, the Samuel Chase and Samuel Johnson impeachments, the presiding officials (VP Burr and CJ Salmon Chase respectively) put significant pressure on the Senate to make the process more judicial than mere politics would require.  In both of those cases, the Senate membership was composed of more than 2/3rds of the opposing political party to the impeached officer.  And in both cases, rather than a brief trial and easy conviction (that the supermajority of Senate members anticipated), the presiding officers wielded significant power in their roles that, in fact (as opposed to implication), created a proceeding that was more judicial than merely political.  

In the Chase trial, Burr (likely because he was not a friend of Jefferson) stated that he would hold any Senator being absent (or eating or talking) during the questioning in contempt.  He stated further that he was well-aware that the Senators could overrule him, but that he looked forward to reading the names of every individual Senator who felt they need not pay attention to the proceedings published in the paper the next morning.  Ultimately, the Senate settled down and Chase presented a full defense.  The trial lasted 30 days and Chase was not removed from office.  Likewise, in the Johnson impeachment, Chief Justice Salmon Chase used a wide variety of procedural presiding powers in deciding to take up which motions first, what constituted a proper motion, etc.  In the end, the trial was the longest on record and President Johnson was not removed from office.  As you note in your article, the Senate could have overruled  any of Salmon Chase’s rulings (and did some of them), but in both trials the presiding officers rulings were made in such a way that doing so was not worth the cost to the members of the Senate. 

All of this is not to say that the Chase and Johnson trials are similar to the current situation, the issue in the current impeachment is quite different.  There is no risk of a runaway Senate convicting Trump on a partisan basis alone.  In this circumstance there is a concern of the inverse, that in a rush to acquit (the acquittal being a nigh-certainty) that there will not be a trial but a purely partisan proceeding.  I would posit that the Chief Justice has no concern about the outcome of the trial (factually or constitutionally), but he does have great concern for the legitimacy of both the Constitution and the law, which in this circumstance includes the concern that he as presiding officer is trapped in a proceeding that is devoid of a judicial meaning.  I believe that he will not likely have to work very hard to see that those minimal standards for a judicial proceeding are well-met (trappings to the skeptical mind).  Nevertheless, he can insist on them.  I submit that you leave out the one power the Chief Justice retains that makes his role indispensable, and creates not a mere implication, but the requirement of a judicial trial.  

A Chief Justice must attend the Senate trial to have a valid impeachment.  The requirement of him presiding, as an element of a constitutional acquittal or conviction, provides ample authority to the Chief Justice to require the Senate to meet the judicial process requirements on which he may insist.  If not, the Chief Justice may simply retire to his usual chambers across the street, at which time the trial cannot proceed.  This power is one that has been discussed in a number of Johnson impeachment articles.  Again, I highly doubt such would occur, but it is a sword of Damocles of which the Senate (and Chief Justice Roberts) is doubtless aware.  I believe it would be relatively simple to work out a compromise to meet the presiding officer’s needs.  I agree with you that those needs very likely will be met, but the Chief Justice may require that they be.  Assuming they are, a Rehnquist-like role is one that I, like you, would expect.

Thank you again for your good article.  I spend an inordinate amount of time reading and pondering on these issues, which will never arise in my daily practice.  I am grateful to have the opportunity to write you as to my thoughts so rarely expressed for want of a forum. 

Sincerely,

Whit

William W. McKinley, Jr., Esq.

         Currie Johnson & Myers

         P.O. Box 750,  Jackson, MS 39205