Just one block lies between the stately U.S. Supreme Court building, with its marble halls and towering columns, and the sprawling campus of the U.S. Capitol, where Republicans and Democrats are now engaged in a political brawl. If there is an impeachment trial in the Senate as seems increasingly likely, Chief Justice John Roberts will be center stage.
Welcome to Roberts’ nightmare.
Roberts has focused intently throughout his tenure on keeping the Supreme Court far from the political fray. The high court’s “legitimacy” an ever-present consideration when he crafts rulings and builds consensus among his fellow justices. The most famous instance of this was Roberts’s deal-making to save Obamacare after he was subjected to a campaign of political pressure from Democrats.
But Roberts’s attempts to thread the needle in the name of “institutionalism” are about to face the ultimate test posed by: the looming impeachment trial, its attendant legal showdowns, and the partisan rancor set to be turned up to 11.
Weaving their way through the courts are roughly half a dozen legal challenges to subpoenas for President Trump’s financial records and tax returns. Some were issued by House Democrats, while another originated with Manhattan’s chief prosecutor. All were part of respective investigations into the president’s conduct.
The White House also ordered current and former administration officials to rebuff congressional subpoenas stemming from House impeachment proceedings.
One dispute, involving a subpoena issued by Manhattan District Attorney Cyrus Vance for eight years of tax returns from the president’s longtime accounting firm, will land at the Supreme Court’s door. The 2nd U.S. Circuit Court of Appeals rejected Trump’s bid to shield the records.
Following Brett Kavanaugh’s bruising confirmation battle, the justices worked to maintain the high court’s air of independence. As the court is poised to hear blockbuster cases this term involving abortion, gun rights, and immigration, the justices will probably try to avoid taking up impeachment-related cases when possible.
“I don’t think the justices want to touch this with a 10-foot pole,” said Tara Leigh Grove, a professor at William & Mary Law School. “Even if the administration tried to bring this kind of quash-a-subpoena lawsuit immediately to the Supreme Court, I have trouble believing the Supreme Court would want that in the year 2020.”
Trump foreshadowed the legal battles over document requests earlier this year when he vowed to fight all subpoenas issued by congressional Democrats as part of their investigations into the president. But Trump suffered a string of defeats in the federal courts. In addition to the blow from the 2nd Circuit, the U.S. Court of Appeals for the District of Columbia Circuit last month ruled Congress has the authority to seek eight years of Trump’s tax records from Mazars USA, the president’s accounting firm. The court is likely to to be asked to take up this case, too.
“Historically, the justices have been loath to interfere, in their view prematurely, in disputes between Congress and the president, and I think, whether for substantive reasons or procedural reasons, some of the justices probably would rather not decide the cases than decide them,” said Steve Vladeck, a law professor at the University of Texas who has argued before the Supreme Court.
While the president will ask the Supreme Court, which now has a 5-4 conservative-leaning majority, to weigh in on his efforts to shield his financial records from New York investigators, the slow speed at which the wheels of justice turn could provide the justices help battling accusations that the court is becoming more politicized. The window for the Supreme Court to hear cases in the current term is quickly closing, meaning any case heard in its next term, which begins in October 2020, won’t be decided until after Election Day. By then, the presidency and House could change hands, leaving the cases moot.
“This seems like a real no-win situation for them, and I think Chief Justice Roberts in particular is very concerned with the court being perceived as an institution above the political fray. He is going to want to do whatever is possible to steer clear,” said Dan Epps, a law professor at Washington University in St. Louis. “There’s a lot of things the court can do. They can punt things, do procedural things to kick the can down the road to avoid taking a controversial stance, and I think that is likely to happen unless their hand is really forced.”
The Supreme Court was asked in the past to wade into subpoena fights, the most famous of which involved President Richard Nixon during the Watergate scandal. The court unanimously ruled in 1974 that Nixon had to turn over audiotapes of White House conversations requested by the Watergate special prosecutor, paving the way for his resignation.
The decision, handed down by Nixon-appointed Chief Justice Warren Burger, is considered one of the most important in the court’s history and was among the landmark cases in which the Supreme Court spoke with one voice.
Not everyone thinks running out the clock would be the right move for the court’s “institutionalists.” If the high court were to rule on the merits of Trump’s efforts to block the subpoenas, Vladeck said it “could be a really useful and important opportunity for the court to put itself above politics.”
But the current makeup of the court diminishes the likelihood that the justices would reach a unanimous decision, meaning any ruling would be seen as partisan grist rather than an incontrovertible precedent.
Epps, who clerked would probably find it impossible to break the gulf between liberal and conservative justices and get a ruling with few or no dissents for Justice Anthony Kennedy, said Roberts would probably find it impossible to bridge the gulf between liberal and conservative justices and get a ruling with few or no dissents. “They’re going to say what they want to say,” he said.
The subpoena fights involve demands made to third parties, and Mazars has said it will “respect the legal process and fully comply with its legal obligations.” But the prospect of a divided Supreme Court ordering Trump to turn over records raises concerns among some people that the president might defy such a ruling.
“A lot of adults have left the building,” Epps said of the Trump White House. “I’m not confident that there are enough adults remaining, so if he wanted to do something like that, would he get sufficient pushback from staff to stop him?”
Casting a shadow over the legal disputes involving subpoenas are the House impeachment proceedings. Launched in September, they came after accusations surfaced that Trump attempted to pressure Ukrainian President Volodymyr Zelensky to investigate Joe and Hunter Biden in addition to alleged Ukrainian meddling in the 2016 election.
Should there be a trial, the chief justice of the Supreme Court would preside in the Senate, as ordained by the Constitution, drawing Roberts into an unavoidable high-stakes political battle.
“In a period of time when the court has really been in the political crosshairs more than people would’ve expected — the Kavanaugh confirmation hearings weren’t great for the court’s image, and prior to that, the way Trump took on the judiciary and talked about the judiciary in a more political way — I can’t imagine [Roberts] is enthusiastic about this,” Epps said.
Jeffrey Engel, co-author of the book Impeachment: An American History and a presidential historian, said Roberts would have to abide by the rules for the trial established by the Senate. He would be tasked with ruling on evidentiary questions and motions made by senators, including any motion to dismiss the articles of impeachment.
“None of the rules of the legal system are going to apply here, absolutely none,” Engel said. “It’s a political court, not a legal court.”
The last chief justice to preside over an impeachment trial was William Rehnquist, Roberts’s predecessor and leading expert on the impeachments of Supreme Court Justice Samuel Chase and President Andrew Johnson.
Two years after the five-week trial of President Bill Clinton, who was acquitted by the Senate, Rehnquist remarked, “I did nothing in particular, and I did it very well.” It’s a model Roberts is expected to follow.
“His job is going to be to try to ensure a sense of fairness and evenhandedness, which I think Roberts is particularly well-suited to do,” Engel said. “I suspect Chief Justice Roberts would be very happy if the only words he spoke are ‘let’s begin’ and ‘now we’re done.'”
Roberts has likened judges to umpires, telling the Senate during his confirmation hearing in 2005 that judges “make sure everybody plays by the rules.”
“Nobody ever went to a ballgame to see the umpire,” he said at the time.
And those virtues will likely be on display during the Senate’s impeachment trial.
“This is a case where the best kind of game is one where you’re not talking about the umpires at the end,” Vladeck said.
In addition to thrusting Roberts into the partisan political arena he has sought to avoid, the Senate trial will also chip away at the freedom Supreme Court justices primarily enjoy from being recognized in public.
While proceedings at the high court are not broadcast and audio is available only days later, an impeachment trial will invite wall-to-wall coverage on C-SPAN, cable news, and social media. The immediate news environment that exists will draw scrutiny to every furrowed brow and muscle twitch from Roberts.
“He’s going to be up there as a very sober and completely impossible-to-read figure in the front of the room, and he will do as little as possible,” Grove said.
Melissa Quinn is a Supreme Court news reporter for the Washington Examiner.
