DANIEL VAUGHAN: The John Roberts ‘impeachment savior’ myth pops

We’re at the stage of the impeachment saga where Democrats and hangers-on are hoping Supreme Court Chief Justice John Roberts will step in and “save” the House impeachment articles. It’s a fantasy direct from the heart of the #Resistance, and it’s an utter farce.

I like how Scott Shapiro, professor of law at Yale Law School, put it: “We are at the ‘The Chief Justice will save us’ stage of Democrats’ grieving process.” It’s exactly where we are right now. MSNBC, apparently realizing this, is now bringing on guests to caution viewers that John Roberts is not the “impartial savior” they are expected him to be at the trial. My apologies to Chief Justice Roberts, but it doesn’t sound like the #Resistance will be selling candles or baby onesies with your likeness as they did with Robert Mueller.

The impeachment savior theory, advanced by publications like The Bulwark and Time Magazine, is that Justice Roberts could step in and force the Senate to hear the Democrats’ new witnesses. That Roberts could overrule Senate Republicans and force the Senate to hold a “real trial.” It’s all a joke.

I’ll give you a taste of the absurdity. Martin London, the lawyer for Vice President Spiro Agnew and retired BigLaw partner, argued in Time that Senate Majority Leader Mitch McConnell’s power to set the rules of the Senate trial was unconstitutional, adding:

I keep a pocket copy of the Constitution in my backpack. I have reread it a dozen times. I see nothing in there giving McConnell, or a majority herd of senatorial sheep, the power to limit the Chief Justice’s constitutional power — and duty — to “preside” over this trial.

I can answer this pretty quickly, as could anyone who had read that pocket Constitution. The first line of the Senate’s impeachment power says, “The Senate shall have the sole Power to try all Impeachments.” That key phrase, “sole power,” means that the Senate can use whatever rules it wants to use during a Senate trial as long as those rules get agreed to by a majority of the Senators.

Do you know what McConnell has in the Senate? A majority. That’s why they call him the Senate Majority Leader.

The Constitution also says that when the Senate is sitting for an impeachment trial, “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.”

The senators have already been sworn in for the trial. And the Chief Justice is presiding. But what London and others like him are doing is presuming that “presiding” has some special meaning. The only reason that the Chief Justice is there is so the Vice President isn’t the one breaking ties on Senate votes. As Frank Bowman points out at SCOTUSBlog, “the Framers recognized that it would be unseemly at best for the person who would assume the presidency in the event of conviction by the Senate to preside over the president’s trial.”

The way to remove that conflict of interest is to have the Chief Justice preside over the trial. We’ve had three impeachment trials now, and all three Chief Justices view their role in the same way: they stand mostly apart from the process and let the politics play out. They’re not there to impact the process; they preside as a figurehead. Again, the excellent Bowman piece reminds us of the history of the role:

What little precedent we have in such cases suggests that chief justices keep their heads down and, so far as possible, defer assiduously to the will of the Senate majority. In the 1868 trial of President Andrew Johnson (which was a real trial, with extensive witness testimony and presentation of exhibits), Chief Justice Salmon Chase was consistently deferential to the Senate, often making provisional rulings and immediately inviting senators to register dissent. Chief Justice William Rehnquist was similarly meek during the impeachment trial of President Bill Clinton…

Justice Rehnquist went a step further and said of his role in the Clinton impeachment that he spent his time doing “nothing in particular and [doing] it very well.”

Chief Justice John Roberts is there to eliminate the conflict of interest problem envisioned by the founders and to see that the Senate continues along in its process. Roberts is not there to be a savior for anyone — he represents the Supreme Court as the apolitical branch. And even in his admonishment to those presenting the case on both sides, he only provided a hand smack, reminding everyone to remember where they were and represent the Senate accordingly.

Roberts is fulfilling his job in doing nothing in particular, and he’s doing it very well at the start of the trial. We should be grateful for a constitutional system that works smoothly, and that we don’t have the chaotic mess that The Bulwark, Time Magazine, and Democrats want to wish on the world.