Tag Archives: impeachment trial

The role of the Chief Justice in an impeachment trial

12 Sunday Jan 2020

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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

The senatorial oath requirement in impeachment trials

03 Friday Jan 2020

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By Frank Bowman

Over the past few weeks, the requirement of Article I, Section 3, of the Constitution that senators, when sitting in trials of impeachment, “shall be on oath or affirmation,” has provoked some heated discussion. The Constitution does not prescribe a particular form of words, but, by tradition, senators now declare that, “I, [name], solemnly swear, (or affirm, as the case may be,) that in all things appertaining to the trial of the impeachment now pending, I will do impartial justice, according to the Constitution and laws: So help me God.”

Democrats have decried Senate Majority Leader Mitch McConnell’s statement that he is not impartial and will coordinate trial strategy with the White House as a preemptive violation of this oath. Others have suggested that the oath implies an obligation by all senators to pursue relevant evidence by adopting rules that authorize Senate subpoenas to recalcitrant administration witnesses.

These may be effective rhetorical ploys, but as a constitutional matter, the oath requirement probably doesn’t compel any particular action.

In truth, we don’t really know what the Framers had in mind with the senatorial oath requirement. Some commentators have suggested that it was meant to emphasize that the Senate proceeding, in which the Senate has “the sole power to try all Impeachments,” is to be a trial-like process with trial-like rules. But that’s pure speculation, and it doesn’t really help very much even if true. To say that an impeachment trial should have some attributes of trials in other settings just doesn’t get us very far.  The Supreme Court, in its only case on the minimum requirements for a Senate impeachment trial, U.S. v. Walter Nixon, said that the word “trial” doesn’t imply any particular procedural rules.  In essence, it found that the Senate can adopt pretty much any rules it likes short of deciding cases by coin flip.

Moreover, trying to analogize Senate trials to, for example, ordinary jury trials and senators to jurors (or even judges) just doesn’t work. The distinctive function of criminal and civil trial juries is that the judge tells them the law — i.e., what facts the plaintiff or prosecution must prove — and then the jury is to perform the very narrow task of deciding if the facts have been proven to the requisite degree of certainty (beyond a reasonable doubt in criminal cases, or to a preponderance of the evidence in civil trials).  Juries are never asked if the facts they have found should matter. 

For example, if the CEO of a corporation is tried for fraud, the jury is asked to decide whether Elements A, B, C, and D of the crime the law calls “fraud” have been proven, but they are not asked if fraud should be a crime in the first place.  Nor are they asked to consider whether this particular fraud by this defendant under these circumstances ought to be excused because it’s just not serious enough. Nor are they allowed to decide to wave away the whole affair because, on balance, the defendant has been a good CEO and removing him would be bad for the corporation.

Yet this is exactly what the senators are charged with doing in an impeachment case.  They find facts, yes, but they are also the judges of the law, by which I mean the questions of whether the proven facts amount to an impeachable “high crime or misdemeanor” and whether the president’s conduct ought to result in removal from office.

What’s more, unlike jurors in a court case, or even judges in such cases, senators as a body are not bound by any preexisting rules of procedure or evidence.  They are entitled to make such rules as seem appropriate to them at the outset, and to change them by majority vote in the middle of the trial if they like. 

In the end, I think the oath requirement has, and perhaps was intended to have, three related functions. First, it emphasizes the solemnity of the occasion.  Second, it admonishes senators to be honest in their judgments of the facts and, so far as possible, not swayed by partisan allegiances or personal political considerations.  Third, it reemphasizes the oath senators take upon assuming office to support and defend the constitution insofar as the impeachment trial oath charges senators with making judgments consistent with maintenance of constitutional order and promotion of the national interest. 

Therefore, one can fairly argue that the oath requirement calls senators to examine their motives and their consciences both when framing the original trial rules and in subsequent votes on process and substance.  Such an examination should tilt in favor of insistence on full production of evidence by the administration.  It should also, at least in my view, dispose senators to uphold the law, long-accepted norms of presidential behavior, and the institutional prerogatives of their own chamber even at some political risk.

Sadly, however, other than as a basis for an appeal to conscience, and when that fails, as a rhetorical club with which to thrash Republican senators, I don’t think the oath requirement has much practical value.