The Chief, the Senate, and the Trial

The National Constitution Center’s We the People podcast, hosted by President and CEO Jeffrey Rosen, brings together scholars of varying viewpoints to explore the constitutional debates at the center of American life. The show’s producer, Jackie McDermott, recaps the most recent podcast and shares some of the key points made and concepts discussed by the guests.

The chief justice has been sworn in and the articles read, and the impeachment trial is now underway.

But just before the Senate began the third presidential impeachment trial in American history, Ken Starr and Joan Biskupic previewed the trial on last week’s episode of We the People podcast in a conversation with Jeffrey Rosen.

Starr, the former independent counsel whose investigation led to the impeachment of President Clinton, and Biskupic, CNN Supreme Court analyst and biographer of Chief Justice Roberts, offered insight into how the chief justice will navigate his role as the trial’s presiding officer. (The podcast was recorded Monday, January 13, prior to the White House confirming that Ken Starr would join President Trump’s legal defense team.)

Both Starr and Biskupic agreed that Chief Justice Roberts’ first priority would be to tread lightly.

“How can I conduct myself, so that no fair-minded person can say I was putting a thumb on the scales?” Starr said, sharing his view on what the chief justice is likely thinking about his role.

Roberts’ role is laid out in Article I, Section 3 of the Constitution, which states that when the Senate is trying an impeachment, “the Chief Justice shall preside.”

As Biskupic then explained, “[T]hat’s all the Constitution says, and under Senate rules, it's actually a very limited role. He's not sitting as a judge. He's not sitting as a juror. He is sitting as a presiding officer... The bottom line is that this is the Senate’s show.”

Biskupic added that she thinks that the most difficult challenge the chief justice might face is deciding whether to allow testimony from witnesses.

She laid out the following scenario: if former White House National Security Adviser John Bolton is subpoenaed and he agrees to testify, as he’s said he would, but President Trump claims executive privilege to keep him from testifying, Senate Democrats may challenge that privilege claim in the Supreme Court. Biskupic said such a move would bring proceedings to a halt and would be unprecedented. She did not have a prediction for how it might play out.

Referring to the fact that Bolton had not yet testified, Starr said:

“That, it seems to me, gives rise to a reasonable articulation of, ‘Well, we need to fill out the record.’ And of course the response… is, ‘Excuse me, that was really the job of the House of Representatives. We [the Senate] are here to try the case on the basis of these articles. That does not mean we're going to be reaching out and calling and witnesses who the House didn't see fit to call in the first instance.’ So it quickly becomes, as we know, a political battle.”

Both Starr and Biskupic contrasted the current “political battle” over procedure with the negotiations that preceded the impeachment trial of President Clinton. Before that trial began in early 1999, the Senate passed the organizing resolution that laid out its procedure by a 100-0 vote.

“Even though the atmosphere was very acrimonious, there was an enormous amount of harmony amongst all 100 senators,” Starr said of the consensus on procedure. “There was not this deep partisan divide.”

That consensus may have arisen from the fact that, as Starr put it, “the evidence was all before the Senate.” It had been laid out in Starr’s nearly 500-page report detailing his investigation into President Clinton for perjury and obstruction of justice.

“I think there was a sense that, ‘The facts have been established. Now what do we glean or what do we conclude from those facts?’” Starr said.

During the Clinton trial, Senate Republicans did push to interview three witnesses behind closed doors, a decision that was approved along party lines. But the chamber later agreed 70-30 not to have those witnesses appear in person. Instead, video excerpts of the deposition of Monica Lewinsky, the woman with whom President Clinton was alleged to have had an affair, were played on large screens in the Senate chamber.

Biskupic said she thinks that Chief Justice Roberts will be wary that any decision he might make about witnesses might be overturned by a majority vote of the Senate — per the Senate impeachment rules, last revised in 1986.

Thus, as Biskupic and Starr noted, Roberts has limited direction on how to conduct the trial. He can, however, look to the example of Chief Justice William Rehnquist, who presided over the Clinton impeachment. Roberts clerked for Rehnquist as a young lawyer, and Biskupic said Rehnquist was his “mentor.”

In her research, Biskupic combed through Rehnquist’s personal files, housed at the Hoover Institute at Stanford, and found letters in which he describes his role in the trial. She said he wrote to loved ones quoting the Gilbert and Sullivan opera Iolanthe in saying, “I did nothing in particular and I did it very well.”

Biskupic said Roberts will likely aim to replicate that model and be as neutral as possible.

“He's going to want to project impartiality and fairness, anyway he can,” she said.

Biskupic also said that in addition to following Rehnquist’s model on substantive matters, Roberts may use similar methods to occupy his time. Rehnquist brought court papers so that he could work while the Senate recessed for lengthy meetings to negotiate procedure, and she said Roberts will likely do the same. Rehnquist even brought playing cards to play poker during breaks, Biskupic said, but Roberts might entertain himself by blowing out some candles-noting that his 65th birthday is January 27.

With that precedent likely in mind, Chief Justice Roberts kicked off the trial on Thursday.

He administered the following oath to senators: “Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, president of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you, God?”

During the podcast, Starr implored senators to remember that oath. He also added that Senate Majority Leader Mitch McConnell and the minority leader would do well to come to agreements on procedural issues.

“I’m not optimistic [that they will]. It is a hope, rather than an expectation, but that I think is so critical,” he said. “Can we agree, as, again, was done under Clinton and I think would've been done under Nixon?”

Biskupic also remarked on the partisan nature of this impeachment as compared to the last, which she covered for the Washington Post.

“I would’ve never thought that 21 years into the future… something all the more controversial and polarized was about to unfold.”

Jackie McDermott is Podcast Producer and Constitutional Content Specialist at the National Constitution Center.