THE UNDERDISCUSSED POWER OF THE CHIEF JUSTICE IN AN IMPEACHMENT TRIAL

I have not written here about politics in a while. And I am not really doing so now. Instead, I’m writing about procedure, which just so happens to be the procedure of an impeachment trial in the Senate.

The last few weeks have been filled with news about the maneuvering between Mitch McConnell and Nancy Pelosi. McConnell has all but announced his intent to impede a full hearing in the Senate and Pelosi has, in response, threatened not to send the articles of impeachment to the Senate until she can be guaranteed a fair hearing.

Both seem to me to be making fundamental miscalculations both strategically and politically based on a flawed understanding of how an impeachment trial in the Senate works and who wields what power during that trial. Most importantly, they both seem to be overestimating the power McConnell has to stifle a trial. McConnell is therefore barking loudly, but his bark has very little potential for bite behind it due to his fragile majority. Pelosi, on the other hand, has played right into his threats by giving them perceived power by threatening to withhold the articles, something that most Republicans would view as a victory. With no trial, they can point the finger at Democrats without having to force members in vulnerable seats to make any hard decisions.

The thing everyone seems to be ignoring is that Mitch McConnell would not be in charge of a trial in the Senate. He would be one very biased influential juror. The judge would in fact be Chief Justice John Roberts.

As a result, the threat from McConnell that Democrats seem most worried about, that there would not be a full hearing at which the witnesses who refused to testify in the house would be compelled to, is largely an empty threat.

The person who would make most of the decisions a judge makes, when to adjourn proceedings, rulings on motions to dismiss, and most importantly who would be compelled to testify, would be Chief Justice Roberts. While a Republican, Roberts is not someone willing to sacrifice everything so his team can win, like McConnell. There are several caveats.

The Senate could pass a special resolution setting (or changing) the rules for the trial. But that would require 60 votes. A non-starter for McConnell who only has 53 Republican votes if he can even achieve a party line vote.

Absent that, once the Senate receives the articles of impeachment, Roberts is making all of the major decisions. However, the other caveat is the those decisions can be put to a vote in the Senate. Effectively, if Chief Justice Roberts made a decision the Republicans did not like, they could seek to overrule him with a simple majority. However, doing so means losing no more than 2 Republican votes. Given that there are Republican Senators facing difficult elections in states trending blue and some who do not share McConnell’s passion for obstruction and partisanship, winning a majority to overrule a widely respected Chief Justice appointed by a Republican President is anything but a foregone conclusion.

This makes Pelosi’s threat to withhold the articles all the more confounding. Part of politics is forcing opponents to take unpopular votes. By not pressing the issue, Pelosi is essentially sheltering vulnerable Republicans from having to do so and also allowing McConnell to look like a hero to his base wielding power he does not have.

It is time for the process to play out and the procedural wrangling to cease. As a strong believer in public and open trials as one of the great features of our system of government, I say let’s have one and let us expose those who do not trust that process for what they are, un-American.