John Roberts Won't Let Mitch McConnell Derail a Trump Impeachment Trial

[hlthe2b]

A look into the process "guardrails" that may reassure McConnell will have to allow the process to play out and why a "rush to judgement by McConnell et al" may fail...

The Chief Justice is likely to play more than a decorative role in the first serious Senate impeachment trial of a president — the first based on genuine abuses of presidential power — since Andrew Johnson’s trial in 1868.

Link to tweet

--snip--

The Constitution explicitly states that the chief justice, in this case John Roberts, “shall preside” over presidential impeachment trials. The rules of the Senate, moreover, require McConnell to take this command seriously. In order to prevent the vice president, who formally presides over the Senate, from refusing to allow the chief justice to play his constitutional role, the Senate rules governing impeachment require the vice president to swear in the chief justice immediately after the House’s charges are announced on the floor. The rules then explicitly empower the chief justice to “direct all the forms of proceedings” during the trial. The Senate, in contrast, is granted the “power to enforce obedience” to all these rulings.

This separation of powers between the chief justice and the Senate was at the center of public attention as the country prepared itself for the impeachment trial of President Andrew Johnson, which began on March 4, 1868. At that time, the Senate approved the rules that were later codified and remain in force today. As the New York Times reported on March 3, 1868, Sen. George Williams of Oregon argued “that the intention of the Constitution was to empower the Chief Justice to decide questions … as he would in any court as its presiding officer. To do otherwise would be to act with a sort of jealousy and make him a sort of figure head.” Sen. John Sherman of Ohio agreed that “the usage of all bodies [is] to submit such questions to the presiding officer.”

The Williams-Sherman accord was significant. Williams was a leader of the moderate wing of the Republican Party while Sherman was a leading Radical. If there was any chance of convicting Johnson, both wings of the Republican Party had to agree on the rules regulating its unprecedented exercise of the impeachment power. (Johnson was ultimately acquitted by a single vote.)

The current rules are not written in stone. The existing Senate could change them before the trial begins. But it is unlikely, to say the least, that McConnell could gain the majority support required for a revision. Because all Democrats would oppose this move, only three Republican defections would stop the majority leader in his tracks. From his public statements, it’s already clear that Sen. Mitt Romney would never go along. Similarly, Sen. Susan Collins has already said that senators should refuse to voice any opinions on the current battle between the House and the president “since they will be jurors” during the trial. On Friday, Sen. Lisa Murkowski also expressed disapproval of some of the president’s reported actions. Given these positions, it is implausible to suppose that these three senators would support any rule change that, in Williams’ words, would make the chief justice into a “figurehead” for blatant partisan politics.

--more at the Slate link. Worth a full read.
https://slate.com/news-and-politics/2019/10/john-roberts-mitch-mcconnell-trump-impeachment-trial.html

[BigmanPigman]

1. Murkowski and Romney I could see doing it, but Collins is a loser.

[MyOwnPeace]

2. Oh, she could

have "a bad feeling or two", or even be "seriously bothered" by something, but yeah, I wouldn't count on her for ANYTHING!

[PCIntern]

3. She might even be "profoundly disturbed".

[MyOwnPeace]

4. Well, it could

rise to that level if she actually has to take time to try and figure out how she's going to follow her marching orders.

[11 Bravo]

40. And after what everyone knew would happen actually happens ...

she'll be "surprised and saddened".
She's useless.

[diva77]

43. Not only is she useless,her tactics are sadistic-wearing people out with 'on the fence' theatrics

as they lobby her to vote on the side of democracy. She's as bad as the unflappable rethugs.

[gab13by13]

5. Yes Roberts presides over the trial

but McConnell sets up the rules. I'm pretty sure that McConnell can tie up Robert's hands.

[hlthe2b]

6. You clearly did not read the article. It fully addresses this.

In fact, that is the entire point of the article to rebut this and my reason for posting it--to dispel some of the hysteria and/or defeatism. Laurence Tribe is no neophyte to these issues and nor is he naive' to McConnell's tactics. Nor is the author of the Slate article. Bruce Ackerman is Sterling Professor of Law and Political Science at Yale and the author of We the People and, most recently, Revolutionary Constitutions. He has written extensively on Watergate and impeachment as well.

[orangecrush]

10. +1

[gab13by13]

11. I didn't just get this from Facebook or Twitter,

I got it from the Wa. Post. I hope the WA.Post story is wrong. I'm sorry for contradicting Tribe he is a top notch expert.

I don't have hysteria or defeatism.

Opinions
Do Democrats realize McConnell would call the shots in a Senate impeachment trial?

Senate Majority Leader Mitch McConnell (R-Ky.) arrives for a news conference after a Senate policy luncheon on Sept. 10. (Andrew Harnik/AP)

By
Henry Olsen
Columnist
September 25, 2019 at 1:48 p.m. EDT
Few Democrats likely think that the Republican-controlled Senate will vote to remove President Trump from office if he is impeached. But they also have likely underestimated how a Republican-controlled Senate trial could be used to put Democrats on defense and exonerate the president.
The Senate has standing rules governing how impeachment trials are conducted. They do not establish many constraints on what the Senate can consider when sitting as a court. For example, there is no provision that the federal rules of evidence or criminal procedure be employed. Thus, the federal prohibition against hearsay evidence need not be adhered to if the Senate chooses to disregard it.
The fact that Supreme Court Chief Justice John G. Roberts Jr. would preside over that trial does not prevent the Senate from drafting its own bespoke procedures and rules. The Senate’s impeachment rules provide that Roberts’s evidentiary rulings can be subjected to a Senate vote and overturned according to the Senate’s standing rules. Presuming motions to overturn such rulings are handled according to Senate Standing Rule XX governing questions of order, a simple majority of the Senate would be sufficient to overrule the chief justice. In other words, Senate Majority Leader Mitch McConnell (R-Ky.), not Roberts, would be the de facto presiding officer if he so chooses.

[hlthe2b]

12. And this expert analysis addresses every bit of this.

I realize this is everyone's kneejerk response. We've been conditioned to be defeatist by the very corrupt nature of McConnell and his ilk. But, THAT is why I posted the article. Please read/re-read it.

[gab13by13]

14. I am not a defeatist,

I will agree that Tribe is probably 100% correct, I have no doubt. I am just pointing out how Republicans have already broken the law by ignoring subpoenas. I don't think we should ignore the lengths that McConnel will go to try to rig the hearing. I apologize for being a contrarian, I'm just sick of how Republicans have ignored the law and precedent. I think that Roberts will do the right thing.

[Rainbow Droid]

15. I do not think Roberts will do the right thing.

[mucifer]

26. Interesting that Nancy Pelosi didn't sound as optimistic in her radio interview:

https://www.newyorker.com/podcast/the-new-yorker-radio-hour/nancy-pelosi-on-impeachment-and-ronan-farrow-on-a-campaign-of-silence

But, maybe she had her reasons for speaking this way.

[hlthe2b]

29. She's never been optimistic. She is doing this because she feels there is no longer any choice.

She also knows it will have impact on the public even if it goes no further than the House voting on articles of impeachment. That may well be a positive for the election despite all memes suggesting the alternative. The fact more and more of the public support impeachment suggests she may be right.

[FM123]

7. He can try, but....

But it is unlikely, to say the least, that McConnell could gain the majority support required for a revision. Because all Democrats would oppose this move, only three Republican defections would stop the majority leader in his tracks.

[Arazi]

13. Massive pressure will be brought to bear on all Rs to fall in line, greater than for Kavanaugh

They will vote to change the rules. Bank on it.

#MoscowMitch has as much to lose if #Traitor is ejected and he will get his way

[calimary]

19. I'd wonder, though, BY THEN, if there wouldn't be pushback from enough of the public

to offset this. Especially with those five CON senators said to be on shaky ground for reelection.

By the time this has gone through indeed eachment in the House, which STANDS, PERIOD, for all of history regardless of Senate verdict when the case moves over there for trial. By the time that happens, it’ll be televised, and the public can watch the trial where the case is laid out and the evidence is presented.

And even now, with all these closed-door hearings and page after page of redactions and only press reports of what’s happening, the numbers for impeachment, AND for impeachment-and-removal, are rising. Even while slightly, the numbers are trending UP. Not down.

I suspect once the public sees and hears the case rolled out, the upward movement toward conviction will grow. Not sure it’ll ever reach the 67% or whatever the threshold is for conviction and removal but I bet more republi-CON senators in purple states will feel growing pressure to do the right thing.

And I’m NOT talking whatever cockamamie bent made-up version of what the “right” thing is, that they’re using their weasel pretzel logic to concoct.

[Arazi]

32. I don't think McConnell will allow a trial. He'll change the rules. Tribe is naive here imo

Tribe believes McConnell will play this straight. I'm 1000% certain McConnell will not.

He must protect #Traitor at all costs - it's probably even more imperative than Kavanaugh since #MoscowMitch is similarly beholden to Putin (and you saw the lengths he went to, breaking our democracy), to install Kav

Romney, Murkowski and Collins will fold and allow the rules to be changed so there's no trial. They're fucking cowards who have ALWAYS chosen party over country. You're really counting on them?! Tribe is counting on them?!

No way

[hlthe2b]

33. The article is from noted constitutionalist Bruce Ackerman. Tribe merely advanced it.

Neither is naive. Nor is anyone here. But, it seems clear to me that you didn't read the article.

Seems we are being flooded with those who won't even consider that we might have a card or two to play against the corrupt RW. Why is that?

[Arazi]

38. Ffs, I read the article. You seem unable to acknowledge Rs have zero respect for the rules

Or that McConnell has broken the Senate. Why is that?

[hlthe2b]

39. Yoursuggestion that only YOU know what R's and McConnell are all about

and even deriding acclaimed constitutional scholar Laurence Tribe as "naive" is noted. And ridiculous.

Here is who you deride:

[Arazi]

47. Bunch of esteemed Dems and Rs vouched for Barr. They too were naive

Nobody knows the future but we can learn from the past.

McConnell is not a friend to our democracy and Roberts is a die hard R. Their histories inform my position.

Feel free to have the last word

[gratuitous]

34. As Tribe says, "The rules are not set in stone"

And we've seen in the last nine years just how fungible Republican fealty to precedent and custom is. If they can wink at the plain language of the Constitution (and they can *cough* emoluments *cough*), Mitch McConnell can surely slither his way around anything he finds inconvenient. I didn't think he could hold out on the Merrick Garland nomination for an entire year, but I was wrong about that. Nothing made a bit of difference, and McConnell was lavishly rewarded when Trump was awarded the presidency. If McConnell has any say at all in the impeachment trial, look for him to operate in the worst traditions of the country, and do his utmost to protect Trump.

[bucolic_frolic]

8. Nothing is more illustrious than publicity

Every baseball fan knows the pitcher of the last home run hit by the game's superstars. Heck some pitchers served up home run pitches just to be remembered by history.

And every Chief Justice would love to officiate over an impeachment. It's good for the history books. We don't remember most Supreme Court Chief Justices, but we remember those who officiated over Presidential impeachments.

And to be fair, CJ Roberts is conservative, and is rather corporate-oriented, but he didn't get to where he is by being a partisan hack. He may often or usually rule with conservatives, but he knows there are two sides to every case and is content to allow that process to play out. It gives him more power and prestige in ruling on the outcome! So he may cut Trump a break on rules or timing, but I doubt he will smother an impeachment. It is a high point of the Constitution - and his career.

[emmaverybo]

37. Make sense to me. Thanks for the analysis.

[usaf-vet]

9. I hope Roberts will take the long view. I think all Chief Justices are concerned about their legacy.

Concerned how the Robert's court will be seen historically. Particularly given the political maneuvering that was employed to get to the 5-4 conservative balance.

McConnell's denying Merrick Garland an up or down vote. And the Kavanaugh nomination process. Both taking place as a result of the questionable 2016 election that had Russian interference.

Is this a tainted court and will history report it as such? IMO Robert's has a chance to try and make it more favorable in the history books.

[calimary]

21. Especially since HIS NAME is on this court.

In all the history books, this will always be referred to as the ROBERTS court.

It’s always named for whoever is Chief Justice.

[world wide wally]

16. I'm waiting for McConnell to claim you cannot impeach during an election year

[eleny]

27. Impeachment isn't up to the Senate

Only the House decides impeachment.

[AllyCat]

17. Don't trust any of them to do the right thing.

And if this was a “Senate rule”, I can see Moscow Mitch changing it at just the right moment to protect Russia’s asset.

[CaptainTruth]

18. As far as I can tell all "requirements" for a trial are based on rules, not laws.

I have zero faith that McConnell or Pence or anyone else will follow rules if they don't want to. I'm no expert but I've been trying to figure this out for a few months & best as I can determine there's no actual requirement (in the Constitution or law) to have a trial.

Here's a good analysis of the subject:

Can the Senate Decline to Try an Impeachment Case?

[link:https://www.lawfareblog.com/can-senate-decline-try-impeachment-case|]

[hlthe2b]

20. I read that when it was published as well. This article if you will read it is likewise from legal

impeachment experts. Neither Laurence Tribe nor Bruce Ackerman are mere journalist analysts, but rather constitutional scholars. Tribe wrote the literal book on impeachment. Ackerman has experience dating back to Watergate. That it ads an additional perspective is why I posted it. I hope most will read the full article at slate. We have been bombarded with memes that have intentionally or unintentionally given the impression that 1. Impeachment could NEVER happen (House would never take it up--wrong). 2. That the public is immovable on impeachment (wrong). 3. That NO Republican would ever support impeachment (at least one House R already has and others have shown increasing public discomfort with Trump. Ditto some Senators.

So, it is worth setting aside the dogma to reassess in my opinion and that is why I posted this.

[malaise]

22. ITTMF

RFN!

That is all

[cbdo2007]

23. I'm probably one of the few here that trusts Roberts, but I think he will do the right thing here...

if given the opportunity.

He has proven himself to side on both Dem and Repube sides of various issues, and he doesn't seem to be much of a big fan of Trump, so we've got to hope for the best and I would rather it be in Roberts hands than many other people's.

[WyattKansas]

46. Roberts doesn't seem like a tRUMP republican at all.

Hopefully Roberts is completely sickened and repulsed by tRUMP's very existence in the U.S. Government.

[Danascot]

24. I would like to see the House continue the impeachment investigation until election day

Lord knows Trump has committed enough crimes to keep them busy for years if necessary. Hopefully we'll be in a better position to impeach after the election if need be. Moscow Mitch's treachery knows no limits. Unless he decides Trump needs to go he'll do everything in his power to derail a Senate trial. I'm not at all comfortable having to put our country's future in the hands of him, Romney, Collins, Murkowski and Roberts.

Plus I think it's very likely that Trump will suffer a mental breakdown and be unable to function. I think he's heading there pretty quickly. Even if he won't admit it, it's pretty clear even he realizes he majorly fucked up with Turkey/the Kurds/Syria, and his pulling the plug on the Doral G7 fiasco is maybe the first time he's had to admit defeat. Real reality is quickly intruding on his reality and he won't be able to reconcile them. The disconnect will be brutal.

One of these days I expect he'll be wisked away to some facility and never heard from again. Actually, being declared mentally incompetent is the only possible path left for him to avoid the unacceptable result of criminal prosecution and imprisonment.

[Wounded Bear]

25. Roberts is a conservative asshole, but he's also an institutionalist...

I think one of the most important things to him is his place in history and what the legacy of the "Roberts Court" will be.

But we've put our faith in others before.

[dalton99a]

28. Best not to put too much faith in Federalist Society judges

Decent ones are exceptions to the rule

[Firestorm49]

30. "Rules of the Senate require McConnell to take this command seriously." Huh?

Really? Republicans don’t even comply with legally drafted subpoenas. What makes anybody think that Moscow Mitch will “take this command seriously.” Of course, hypothetically speaking, even if he were to state that he would comply, one can not believe any of the dribble that spews from the mouth of a Republican. For Christ sake, look at the President!

[hlthe2b]

31. Defeatism... There is more complexity to this than your reflex response. Please read the article

None of us are uninformed nor unrealistic about who we face and their pattern of corruption. But all is not preordained. Reading other perspectives may just well show us what we can do to deter some of the nasty tricks, but not if we give up without trying (since RW tells us they hold all the cards). No they don't unless we LET them.

[Nevermypresident]

35. K & R

[lagomorph777]

36. Of course Moscow Mitch will rig the trial. Dems need to have a strategy to make that obvious.

We need to exploit Russiapublican corruption as a weapon against them in the election.

[onenote]

41. Naive analysis

While it acknowledges that the Senate can by majority vote reverse any evidentiary ruling made by the Chief Justice as the Presiding Officer of the trial, it blithely and unconvincingly assumes that Romney, Collins, and Murkowski would always side with the Democrats and against their fellow Republicans if such a vote were to occur. It also assumes that Roberts' rulings on evidentiary rulings will be favorable to Democrats and thus it would be the Republicans that would want to reverse them, rather than the other way around. In fact, it ignores that the Senate rules governing impeachment trials allow the Chief Justice to punt on ruling himself and instead refer the question to the full Senate: "... the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to
the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate. Upon all such questions the vote shall be taken in accordance with the Standing Rules of the Senate."

Finally, Ackerman ignores the fact that under the express terms of the Constitution, the Vice President serves as the "President" of the Senate and is empowered to break ties. As a practical matter, the VP rarely sits as the President (or "Presiding Officer&quot of the Senate, but there is no bar on his doing so. So even if all three of the Senators Ackerman is so certain would not vote to overrule an evidentiary ruling by the Chief Justice, do you really want to assume that Pence wouldn't cast the tie-breaking vote if it came to that?

[hlthe2b]

42. Naive' reading.

In order to prevent the vice president, who formally presides over the Senate, from refusing to allow the chief justice to play his constitutional role, the Senate rules governing impeachment require the vice president to swear in the chief justice immediately after the House’s charges are announced on the floor.

[onenote]

45. And what does that have to do with anything?

The Senate Rules distinguish between the Presiding Officer at the trial and the Presiding Officer of the Senate and carve out a role for both.

And the rules don't require the VP to swear in the Chief Justice, they require the "Presiding Officer of the Senate" to do so: "said Chief Justice shall be administered the oath by the Presiding Officer of the Senate." The Presiding Officer might be the VP if he so chooses, but most of the time, the Presiding Officer is the President Pro Tempore of the Senate or another person appointed to fill the chair. For example, in the Clinton impeachment trial, the oath was administered to the Chief Justice by Strom Thurmond, who was sitting as President Pro Tempore/Presiding Officer of the Senate.

[NCLefty]

44. McConnell would be happy to hide in his shell for the entire thing.

And let Roberts take the heat from the right.