No cameras are permitted at Supreme Court hearings, but starting on Tuesday, Chief Justice John Roberts won’t be able to escape them in his role presiding over President Trump’s impeachment trial in the U.S. Senate.
Roberts, who will turn 65 this month, is required under the Constitution to serve as the presiding officer in an impeachment trial that will be televised.
But little guidance is provided for the role he should play.
Lawyers, pundits, and lawmakers are already weighing in with a range of predictions.
House Democrats want Roberts to overrule the Senate’s Republican majority if GOP lawmakers reject calling key Trump administration officials to testify.
Democrats want new evidence and witnesses to be included in the trial. They are seeking three sets of documents related to Trump’s July 25 phone call with Ukrainian President Volodymyr Zelensky. Trump, during the call, asked Zelensky to investigate former Vice President Joe Biden’s role in the removal of a Ukrainian prosecutor who was investigating a Ukrainian gas company that employed his son, Hunter Biden.
The call prompted the House investigation that resulted in the Dec. 18 party-line vote impeaching Trump on charges of obstruction of Congress and abuse of power.
Senate Democrats also plan to demand votes on witnesses when the trial opens on Tuesday, but they are likely to be defeated by Republicans who want to wait until later in the trial to consider summoning witness testimony or additional documents.
Some law professors believe Roberts can overrule the GOP and call for new evidence.
“Hopefully, Roberts understands his duty and will take control of the trial,” University of Georgia Law Professor Sonja West said on Twitter. “Democrats should be clear that it’s Roberts, not McConnell, who holds the procedural power and whom they expect to make the final decisions.”
But senators in both parties acknowledge if Roberts follows in the steps of his predecessor, Chief Justice William Rehnquist, he will play a minimal role.
Rehnquist, for whom Roberts clerked in the 1980-81 Supreme Court term, presided over the Senate’s five-week impeachment trial of President Bill Clinton, who was ultimately acquitted of two charges. Rehnquist did not issue significant rulings that influenced the outcome of the trial.
“I did nothing in particular, and I did it very well,” Rehnquist told talk show host Charlie Rose in 2001, quoting the opera Iolanthe.
Senate Democrats and Republicans who participated in the Clinton impeachment trial anticipate Roberts may play a similarly minimal role.
“Chief Justice Rehnquist, when he presided over the Clinton impeachment, did his best not to intervene,” Senate Minority Whip Dick Durbin, an Illinois Democrat, told NBC last week. “He really was kind of an observer and traffic policeman.”
Sen. Bob Menendez, a New Jersey Democrat, said the Republican majority can overrule Roberts, even if he decided to play a bigger role presiding over the trial.
“It’s going to be a question of what the chief justice chooses to do,” Menendez told CNN. “And even if he chooses to actively engage in presiding in a way that we would expect from any judge, he can be overruled by a majority vote of the Senate. So Mitch McConnell and Republicans could overrule any decision he does make.”
Roberts was nominated to the high court by President George W. Bush and was seated in September 2005.
Bush initially selected Roberts to fill the seat vacated by Justice Sandra Day O’Connor. He elevated Roberts to chief justice when Rehnquist died before Roberts’s Senate confirmation hearings began. Roberts was a pallbearer at Rehnquist’s funeral.
Northwestern Law School Professor John O. McGinnis, compared Roberts’s upcoming role in the trial to that of Vice President Mike Pence, who as president of the Senate occasionally presides over the chamber but does not play an active role other than breaking a tie vote.
“The chief justice’s role in the impeachment trial will be legally no greater than that of the vice president for whom he is substitute,” McGinnis told the Washington Examiner. “He is to enforce the Senate’s rules, but the Senate, not the chief justice, makes the rules and decides on their interpretation.”
Roberts has never actually served as a trial judge before. Before Roberts’s Supreme Court nomination, he was a judge on the United States Court of Appeals for the District of Columbia Circuit for about two years.
While Roberts’s role in the looming impeachment trial remains somewhat uncertain, his presence in the Senate has already made an impact on lawmakers.
Roberts arrived at the Capitol Thursday to swear in senators to serve as jurors in the trial.
He was escorted to the chamber in his black robe by a bipartisan group of senators in a solemn ceremony that hasn’t taken place in more than two decades.
“When the chief justice walked in, you could feel the weight of the moment,” Minority Leader Chuck Schumer, a New York Democrat, said afterward. “I saw members on both sides of the aisle visibly gulp.”
