Chief Justice Roberts won't compel witnesses to testify at Trump impeachment trial, legal expert says

Jon Ward
Senior Political Correspondent


Chief Justice John Roberts. (Photo illustration: Yahoo News; photos: AP)

Chief Justice John Roberts is almost certainly going to avoid weighing in on whether President Trump’s Senate impeachment trial should include testimony from witnesses, legal expert Jeffrey Rosen told Yahoo News.

“I can’t imagine him playing a really substantive role about whether or not to hear witnesses,” said Rosen, president and CEO of the National Constitution Center, in an interview on “The Long Game,” a Yahoo News podcast.

Rosen said he thinks Roberts “will do anything possible to avoid weighing in on that.”

“The main thing he can do is show up and be neutral and nonpartisan and dignify the procedure,” Rosen said.

House Intelligence Committee Chairman Adam Schiff, D-Calif., did float the possibility in November of seeking a legal opinion on compelling testimony from certain White House advisers to Trump who were blocked by the White House from giving it in the House investigation, through an appeal to Roberts during a Senate impeachment trial, rather than through the traditional legal process.

“I think there’s certainly merit to the idea that we may get a quicker ruling from a chief justice in a Senate trial, if it ever came to that, than we would get by going months and months on end litigating the matter. There’s no guarantee of that, but I think that it’s entirely possible,” Schiff said on CNN’s “State of the Union” on Nov. 24.  

Rosen borrowed an analogy from CBS News Supreme Court correspondent Jan Crawford, who said Roberts is likely to preside over the Senate impeachment trial more like a traffic cop than an umpire. In other words, he’ll focus on making sure he knows the rules and procedures inside and out, and will rule on those kinds of questions, but will otherwise steer clear of ruling on substantive or political questions.

Roberts is required by Article 1, Section 3 of the Constitution to preside over a Senate impeachment trial. He will be a highly visible participant in a high-stakes political showdown that is likely to break down along purely partisan lines, much like the 1999 impeachment trial of then-President Bill Clinton. 

“Under the Constitution he has to be there for it, but I think at every turn [Roberts] will look for ways to have as small a footprint as possible,” Adam White, a resident scholar at the American Enterprise Institute, told Yahoo News last fall. “He is very, very wary of the courts being seen as being brought into a political process.”

“Chief Justice Roberts cares a lot about the institutional legitimacy of the judiciary, and there’s no more dramatic constitutional test of that than presiding over an impeachment trial,” Rosen said.

If Democrats press the point that Roberts is able to rule on allowing witnesses but is declining to do so, they could follow the lead of Schiff, who in the November CNN interview indicated that such a decision by the chief justice would amount to a partisan act.

“It will mean that either Justice Roberts or the Supreme Court itself is not really a conservative justice or court, merely a partisan one,” Schiff said.

However, it’s not even clear that Senate Majority Leader Mitch McConnell will have enough Republican votes to deny Democratic demands for witnesses. He would need a simple majority to do so, but there may be enough Republican senators who decide to support a motion for some witnesses. Sen. Lamar Alexander, R-Tenn., on Monday told CNN he is open to calling witnesses.

The question then would be, which witnesses? Senate Minority Leader Chuck Schumer has requested four witnesses who were blocked by the White House from testifying to House investigators: Mick Mulvaney, acting White House chief of staff; John Bolton, former national security adviser; Michael Duffey, Office of Management and Budget associate director for national security; and Robert Blair, senior adviser to the acting White House chief of staff.

House Speaker Nancy Pelosi, who has held on to the articles of impeachment since Dec. 18, is scheduled to meet with all House Democrats on Tuesday morning to discuss next steps. Whenever the House votes to send the articles to the Senate, that will initiate the impeachment trial process. It will be a three-to-four-day process to actually get to a trial, a spokesman for McConnell said.

Given that timeline, the earliest a trial could start would be at the end of this week or early next week.

Clinton’s impeachment trial lasted five weeks, but even if the Senate keeps Trump’s trial to just two weeks, that will keep some of the leading Democratic presidential candidates who are also senators in Washington right until the last weekend before the Iowa caucuses, which will take place Monday, Feb. 3.

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