We The People

The Chief, the Senate, and the Trial

January 16, 2020

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Today, Chief Justice John Roberts was sworn in at the United States Senate to preside over the third presidential impeachment trial in American history. On this week’s episode, Ken Starr, the former independent counsel who investigated President Clinton before his impeachment, and Joan Biskupic, CNN Supreme Court analyst and biographer of Chief Justice Roberts, join host Jeffrey Rosen to preview the trial. They discuss how disagreements over trial procedure, including whether or not to call witnesses, might be resolved. They also offer insight into how the Chief will likely handle his role, and how past Chief Justicse have presided. 

[This episode was recorded on Monday, January 13th, before the announcement that Ken Starr would be joining President Trump's legal team.]

[Jeff offers a special chance to win his book Conversations with RBG if you write in before 11:59 a.m. on 1/20/19 completing the stanza of one of his favorite operas. Open to US + Canada legal residents 18 +. No purchase necessary; void where prohibited! Limit one per listener.]

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PARTICIPANTS

Joan Biskupic is a CNN legal analyst who has covered the Supreme Court for twenty-five years. She has previously been an editor-in-charge for Legal Affairs at Reuters, and a Supreme Court correspondent for the Washington Post and USA Today. Her most recent book The Chief is a biography of Chief Justice John Roberts.

Kenneth W. Starr is Of Counsel at The Lanier Law Firm. Judge Starr has argued 36 cases before the U.S. Supreme Court, including during his service as U.S. Solicitor General. He served as United States Circuit Judge for the D.C. Circuit, and as Counselor and Chief of Staff to U.S. Attorney General William French Smith.  He served as Independent Counsel during the Clinton presidency from 1994-1999, overseeing five investigations, including Whitewater.

​​​​​​Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

Additional Resources

This episode was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich, Robert Black, and Nicholas Mosvick.


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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan, non-profit chartered by Congress to increase awareness and understanding of the constitution among the American people. The Senate of the United States is on the verge of holding the impeachment trial of President Trump, and presiding over that trial will be Chief Justice John Roberts to talk about the chief justice's role in the impeachment trial and the history of chief justices and presidential impeachments, we're joined by two of American's leading experts on impeachment and on the constitution. Kenneth Starr is of counsel at the Lanier Law Firm. Judge Starr has argued 36 cases before the U.S. Supreme Court. He served as solicitor general of the United States, as a circuit judge for the DC circuit, and as independent counsel during the Clinton presidency from 1994-1999. Ken, thank you so much for joining.

Kenneth Starr: [00:01:09] My pleasure, Jeff. Thank you.

Jeffrey Rosen: [00:01:11] And Joan Biskupic is a CNN legal analyst who has covered the Supreme Court for 25 years. She's previously been an Editor in Charge for Legal Affairs at Reuters, and a Supreme Court correspondent for the Washington Post and USA Today. Her most recent book, The Chief, is a biography of Chief Justice John Roberts. Joan, it's wonderful to have you with us.

Joan Biskupic: [00:01:31] Thank you, Jeff.

Jeffrey Rosen: [00:01:33] Let's jump right in. Joan, what is the most contested question Chief Justice Roberts is likely to decide in the upcoming trial of President Trump, and how is the chief likely to decide it?

Joan Biskupic: [00:01:47] Well, as things stand, it could be a question having to do with witnesses and evidence given, the, uh, dispute between House Democrats and Senate Republicans at this time. As you know, his one responsibility in the constitution is that he presides when the president is subject to an impeachment trial, but that's all the constitution says. In 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's sitting as a presiding officer, and according to the Senate rules, he does not have a vote, but he can be asked to decide questions of evidence, uh, whether it's relevant or material. So one of the House managers, uh, as they're, they're called when they bring over the articles of impeachment, could try to put to the chief some question about witnesses. Now, in 1999, when wril- William Rehnquist was in the chair, those questions about witnesses were worked out by the Senate majority, and I would think, given the tensions that are brewing now, that Senate majority leader, Mitch McConnell, is going to try to control that question, and that Chief Justice John Roberts would be happy to have him control it.

And finally, Jeff, if he does make any kind of determination on witnesses or evidence per the 1986 rules, he can be overturned by majority of the Senate, because the bottom line is that this is the Senate's show. The Supreme Court has ruled that the Senate has the sole responsibility to decide whether a president is convicted or acquitted, and John Roberts will be sitting up there on that dais trying to make sure the proceedings run well, but not taking a heavy hand.

Jeffrey Rosen: [00:03:40] Ken, do you agree with Joan that the chief is unlikely to make rulings that he knows could- might be overruled by the majority of the Senate, and when it comes to witnesses, could you imagine Senate Democrats asking the chief to compel witnesses after the majority has decided not to hold them, and him making a substantive ruling or not?

Kenneth Starr: [00:03:59] Yes, I think he will make a quite conscious, uh, effort to number one, follow history and tradition, and so Joan is absolutely right. The Clinton model, uh, and Chief Justice Rehnquist for whom Chief Justice John Roberts clerked, uh, almost a half century ago, um, a little less, is going to be his model. And in turn, Chief Justice Rehnquist used as his model Chief Justice Salmon P. Chase during the only prior impeachment that made it to the United States Senate of the sitting, uh, president in the trial of Andrew Johnson. Uh, I would, uh, agree with the thrust of what, uh, Joan said with perhaps, a, a, a, a bit of a tweak, and the tweak, uh, would be because of his sense that this is the Senate's sole power, he should not be making any decision. I'm projecting here, the chief would say to himself, "I cannot make any decision that might have a substantive effect, an outcome on the substantive judgment of acquittal, uh, uh, or of, of, of guilty." This is for the Senate. It's the prerogative of the Senate. And this we know from the Clinton impeachment final point, uh, and this is, uh, exactly Joan's, uh, point.

It was the Senate that worked it out. Now there, there was cheerful agreement. There were 100, uh, senators going in, uh, in contrast to what is likely to be the case now, who, uh, agreed no witnesses going in. Then when the issue emerged again on into the trial after the impeachment managers had presented, and the president's where all the lawyers had presented, then it was put to a vote. Uh, and the vote was overwhelmingly 70 to 30. Something like that. Overwhelmingly, we do not want live witnesses, depositions, and so forth. So the other is that, the chief will be aware that there is going to be a lot of negotiation going on between the House managers and the Senate leadership within the Senate itself, and his job is to stay above the fray.

Jeffrey Rosen: [00:06:08] Uh, you both mentioned the Clinton trial, and Joan, you just wrote a fascinating article for CNN.com based on your study of the files of Chief Justice Rehnquist. The piece was called How The Last Chief Justice Handled an Impeachment Trial of the President of the United States. Among many fascinating, uh, nuggets, you found that Senator Harkin had sent a letter to Rehnquist asking him to adopt limits on the House manager's questioning of potential witnesses, and Chief Justice Rehnquist begged off. Tell us more about that incident and about other things you learned from the Rehnquist files.

Joan Biskupic: [00:06:39] Yes. It was, it was quite a find, because, uh, the, the actual records from that, uh, impeachment trial are under seal for about 50 years, but in Rehnquist's personal files, uh, out of the Stanford campus in the Hoover Institution, I was able to find his correspondence while he was presiding, uh, over the trial, and, uh, as both of you know of, uh, Bill Rehnquist, uh, uh, whatever you thought of him on, on the law, he did have that whimsical side. So of course, he showed up in a black robe that was decked out in gold stripes that he had affixed to his robe, um, uh, to his sleeves years earlier inspired by a character in Gilbert and Sullivan's Iolanthe, and he also quoted from Iolanthe when he wrote to people to say how it, how it went. He said, "I did nothing in particular, and did it very well." But going to this substantive things I found in his, um, in his files, you're exactly right that at one point when he was encouraged to, um, actually, uh, make more of a substantive ruling to intercede, he said, uh, he did not want to, and he said he would claim authority only when it's exercise was clearly warranted.

And the one time, probably the, the most notable ruling of beyond what was already prearranged, uh, when Rehn- when Chief Justice Rehnquist was dealing with the House managers and the senators, had to do with, um, uh, that, the fact that the House managers kept referring in their arguments to the senators as jurors. And that was another time when, um, Democrats objected, saying, "They shouldn't be calling us mere jurors," and, uh, Chief Justice Rehnquist agreed. He sided with them saying that, "The Senate is not simply a jury in this matter. It's a court in this case." So he, he was trying to, i- when it was time to intercede, he did. At other times, he stepped back, but, um, Jeff, you know what it's like across the street as the Supreme Court. You know, it's a, it, there are no cameras, uh, allowed over there. The justices do most of their work in enclosed chambers. So when William Rehnquist came to preside, it was, you know, the first time that he was in such a prominent spotlight, and he got so many letters from people ranging from things having to do with politics and, and his, uh, voice on the law to the fact that he would stand up intermittently during the, uh, uh, the proceedings to exercise his bad back. So people were writing in from all corners of the country to, to tell him how to fix his back problem.

Kenneth Starr: [00:09:15] [laughs]

Jeffrey Rosen: [00:09:15] Many thanks for those wonderful tidbits and for the great expressions of concern by a fellow, uh, uh, back-sufferers. Um, the Iolanthe quotation is great. We The People listeners, I have to confess, I am a, a G&S, uh, fan. It's a, it's a private vice that I have. So here's the homework for the week. The line that Rehnquist was quoting comes from Iolanthe, as Joan said. I'm gonna read you the two stanzas, and if you can write in with the final stanzas to me, then I'll send you a copy of my book, Conversations With RBG. Here it goes.

When Wellington thrashed Bonaparte, as every child can tell, the house of piers throughout the war did nothing in particular, and did it very well.

So tell me what comes next, and get the RBG book. Okay. Ken, you had a central role in the impeachment of president Clinton as the independent counsel, and you watched Chief Justice Rehnquist preside carefully. What struck you about his performance? What moments jumped out, and what do you think were his most important, uh, substantive rulings?

Kenneth Starr: [00:10:08] I think he had read, uh, Hamilton's Federalist 78, even though this was not a classic judicial role, um, then- Colonel Hamilton said in describing the federal judiciary, and again, this is an extraordinary, unusual role for the Chief Justice of the United States that this is to be the least dangerous branch where power or will is exercised elsewhere, but only judgment. So I think that Chief Justice Rehnquist, steeped as he was in the trial of, uh, president Johnson, and aware that, uh, president, uh, Johnson trial was obviously enormously acrimonious. There were 11 articles of impeachment. The reconstruction of the South was an issue, a- and as a serious if, if avocational student of history, Chief Justice Rehnquist had to be aware, and perhaps his files show this, that Chief Justice Chase came under consi- c- considerable criticism after the fact that he was somehow nudging the Senate along in favor of acquittal. Well that would be to Chief Justice Roberts now unconscionable. How can I conduct myself so that no fair-minded person can say I was putting a thumb on the scales?

And of course, that's important for any judge in a judicial capacity to be fair-minded and open-minded and to listen with respect and so forth. So I think there will be this sense the less I do, the, the quip, from Gilbert and Sullivan the Chief Justice Rehnquist so colorfully articulated and embraced in this context is I need to do very little and refer matters back to the Senate. This is a matter that's entrusted to the judgment of the Senate. I think we may hear that over and over again if, as I expect, there's a lot acrimony and a failure to agree as there, uh, happily... There was not that profound, profound failure to the contrary. During Clinton, uh, as the more we learn about the Clinton impeachment, the more we know that there was, even though the atmosphere was very acrimonious, there was an enormous amount of harmony among the, all 100 senators. There was not this deep partisan divide.

Jeffrey Rosen: [00:12:31] A striking, uh, difference indeed. Uh, Joan, what could be surprising about, uh, this kind of questions Chief Justice Roberts might be asked to rule on? You could imagine questions of executive privilege that some senators might try to take up the Supreme Court in the middle of the trial if it lasted more than a couple days. Uh, how could the chief rule on or sidestep those questions, and, and what are the curve balls that he might face?

Joan Biskupic: [00:12:58] Sure. In fact, uh, I just, uh, closed the loop in the reference to the, um, impeachment trial of President Johnson, uh, when Chief Justice Chase presided. I believe that Chief Justice Chase broke ties among senators twice, but that was, that was very controversial, and the rule since then definitely do not give the presiding officer any power of a vote. So that's just a comment on the fact that, yes, Chief Justice Rehnquist probably thought that, um, uh, Chief Justice Chase had gone a little bit too far, and senators at the time were quite torn on that. But now, uh, Jeff, you raise an excellent question, because you already hear the talk over, you know, would someone like, uh, John Bolton who knows, presumably knows so much about went down, what went down with the Ukrainian phone call and dealings of President Trump, would he be called to testify? He's saying that he, he would, he would be willing to testify in the Senate. Of course, there's great controversy over whether they would call him and, and whether President Trump would object, but say President Trump, then, tried to assert executive privilege.

That, uh, you know, that isn't a question that could be resolved probably within the Senate impeachment venue, but I think it would be, uh, it, it's definitely unprecedented to have this side question then to go up to the Supreme Court on executive privilege while the Senate trial was underway. And I, I wanna remind, uh, our listeners of, uh, w- what I like to refer to as the other Nixon case. Not the definitive 1974 U.S. v. Nixon case on executive privilege, but the 1993 Supreme Court case of Nixon versus United States which involved a federal judge by the name of Walter Nixon, who had been impeached by the House, and then was undergoing a Senate trial. And Judge Nixon was complaining about the way the Senate was taking evidence, saying, "You're ju-" uh, the Senate was just using a committee rather than having all 100 Senators, uh, take all the, all the, uh, evidence to be heard. And he took his case to the U.S. Supreme Court, and said, "You know, Supreme Court, you should tell the Senate how it must properly run an impeachment trail," and the Senate, I mean, pardon me, the Supreme Court, uh, in a majority opinion by Chief Justice William Rehnquist said, "No. Uh, the, the, the Senate has the sole responsibility on whether a president is convicted or acquitted, and the sole responsibility for how it runs its trial, and we're not going to intervene."

Now someone could say, someone could assert, uh, some sort of argument that said, "Well, but it would just challenge all sense of fairness, uh, for the Senate to run a trial without witnesses." I don't think that's going to ha- be an, an argument that would have traction at the U.S. Supreme Court, but, but you don't know. We're in such a strange, unpredictable time, but that is the kind of question, Jeff, that could tie up things, uh, if Senate majority leader Mitch McConnell doesn't, uh, doesn't wield a pretty heavy hand here, and I, I have a feeling, uh, he'll tr- certainly try.

Jeffrey Rosen: [00:16:16] Many thanks for telling We The People listeners about the Walter Nixon case, which is the central one. Um, in that case, there were concurring opinions by Justices Souter and like, who suggested that if the Senate flipped a coin in an impeachment trial, really refused to hold any trial at all, possibly, there might be some judicial review, but short of that, no. Uh, Ken, can you imagine any situation in which, uh, a trial would be so abbreviated like a motion to dismiss on the first day without going through any testimony at all, uh, that might spark a judicial challenge a- along those lines that it basically didn't count as a Senate trial, or not?

Kenneth Starr: [00:16:51] I- it might spark a judicial challenge, but I think that the challenge, uh, would be, uh, dismissed and would not eventually be addressed on the substance or on the merits by the Supreme Court, and I think the music, as it were, of the Walter Nixon case is very much to the effect that we are simply not going to interfere, we being the Supreme Court, or the judiciary more generally, with the prerogatives of the Senate. And so to bring that back to the invocation of executive privilege, uh, I believe the Chief Justice of the United States, John Roberts, will say, "We have, uh, an, uh, assertion of executive privilege. Uh, what say ye?" And turns it back over to the Senate. The Senate may s- feel free to go into executive session or to debate it. Uh, because that is such a substantive determination, my prediction, I may be wrong, is that the Chief Justice would not rule on it but refer it to the Senate for resolution.

Jeffrey Rosen: [00:17:49] Very interesting suggestion. It would be the Senate, itself, that would rule on executive privilege exercising its power to make substantive constitutional decisions. Joan, any, uh, Chief Justice Rehnquist was a, a scholar of impeachment. He wrote a well-received book on the, uh, Chase and Johnson impeachments. Uh, Chief Justice Roberts is a scholar of history. He reads biographies of other chiefs. Any sense of how he's preparing for this trial?

Joan Biskupic: [00:18:13] You know, I think that's exactly right, that he w- he, he, he is a student of history. Uh, before he turned to law at, at Harvard, he thought he would get a PhD in history, and I presume he's intrigued right now by the historic nature of what's about to happen. You know, only the third U.S. president subjected to a Senate impeachment trial. Uh, but, you know, the Supreme Court already has a very packed calendar of controversial cases to be heard in 2020. So I think he's going to try to be as prepared as possible, work with the rules. You know, uh, John Roberts is incredibly rule-oriented, and Chief Justice Rehnquist found himself turning to the parliamentarian in the Senate nonstop back in 1999, and I'm sure John Roberts is already trying to get up to speed on just the kinds of rules that will shape this trial, also to familiarize himself with the senators, themselves.

The last time he cared, uh, specifically who was in the Senate was in 2005 when he was nominated to be Chief Justice, and I'm sure he was aware of every single senator then, but, uh, it's been 15 years, and things have changed. So he's gonna, he's gonna want to know, you know, who's there in the chamber when they all, you know, are irate at those wooden desks before him. Uh, so I think a lot of preparation, a lot of homework in that regard. And, you know, he's lucky, because, uh, some of the, uh, aids who were part, around back in 1999 and helped Chief Justice Rehnquist are still in the orbit of the federal judiciary. So he can tap into people for advice.

Jeffrey Rosen: [00:19:44] Ken, you've expressed, uh, skepticism both about the substance of the articles of impeachment against President Trump as well as about the procedure by which they were voted. Uh, during the Clinton impeachment, was the impeachment better served by your report, which laid out the factual findings comprehensively, and what, if anything, could be done at this point to cure whatever defects you see in the procedural or substantive articles?

Kenneth Starr: [00:20:10] Well, the one advantage if there was one in the prior proceeding during the Clinton, uh, is that the evidence was all before the Senate. Uh, some of it obviously was not in the public domain, but an enormous amount, uh, to m- many, uh, bewildering and, and distressing, uh, amount was in the public domain, and the standard that we followed in the process of completing the report in this submitting all of the supplemental information and the like was this needs to be proven, this being perjury and obstruction of justice, really, not just beyond a reasonable doubt, beyond any doubt whatsoever. Uh, and so I think there was this sense that the facts had been established. Now what do we glean, or what do we conclude from those facts? And that was part of the power that I think that the 100 senators, the insight they brought to bear, we don't want any more witnesses. We've seen enough. We've heard enough. We have enough. Uh, let's move to the, uh, argument phase.

In contrast, briefly, we of course, have a record that, in my judgment, is really quite thin, um, with, uh, obviously witnesses such as John Bolton, who've not been hord- heard from. And we can get into well, why is that, why could there have gone a bit slower, more deliberately on the part of the House, etc. And that becomes quickly a political dispute as well as a legal and procedural, uh, dispute. But here's the fundamental point, the record going to the United States Senate is relatively thin with a number of unanswered questions. That, it seems to me, it gives rise to a reasonable articulation of, "Well, we need to fill out the record," and of course, the response, my final point is, "Excuse me, that was really the job of the House of Representatives. We are here to try the case on the basis of these articles. That does not mean we are going to be reaching out and calling in witnesses who the House didn't see fit to call in the first instance." So we, the- it quickly becomes, as we know, a political battle.

Jeffrey Rosen: [00:22:18] Joan, there is, uh, a sense that this impeachment is more partisan than all the ones that have come before, even though they were pretty partisan, too. There's likely to be very little, if any, partisan crossover. Uh, Roberts is acutely concerned about, uh, the non-partisan legitimacy of the judiciary. What can he do to preserve that in the middle of this most partisan of all settings?

Joan Biskupic: [00:22:40] Well, you know, you're, the premise of your question is exactly right that John Roberts gives very few public speeches, but when he does, he has a singular message, and that's, uh, to shield the court's reputation and its integrity. And, you know, just last fall, he said, "When you live in a politically-polarized environment, people tend to see everything you do in those terms," including the Supreme Court and however it's acting, and including him as Chief Justice, and he, you know, he asserted that, you know, the court will continue to decide cases according to the constitution and, uh, laws without fear of favor. And, uh, we're all aware, and I'm sure your listeners are aware of how he, uh, issued a rebuke to President Trump at that mo- uh, li- last, um, a year ago November, when, uh, he said, uh, you know, "There are no Obama judges. There are no Trump judges." Well, you know, that's a, that's a hard thing to assert when, when Washington's so polarized and the court itself is polarized with five Republican appointees who vote mostly conservative, and four Democratic appointees who most, vote mostly liberal.

So he's going to prep- want to project impartiality and fairness any way he can. And I think that the hardest part for him, uh, could probably come on the witnesses. Uh, just to remind everyone, there were three witnesses who the Senate heard from in 1999, but it was video tape testimony, and it was something worked out between, uh, the majority and minority leaders. And, and in fact, uh, William Rehnquist wrote to former Oregon, um, Senator, uh, Mark Hatfield, saying, "I have been introduced to the ways of the Senate in a big way. Since there have been no live witnesses, though, there's been very little for the presiding officer to do, but it is interesting to see the Senate at work." And he, he later even said, uh, you know, it was quite the culture shock to go from the very structured world of the Supreme Court across the s- street to, uh, what he said was the freeform, for lack of better word, uh, uh, approach of the U.S. Senate.

So I, I, I als- I think that the chief is going to be on guard for questions involving these witnesses and evidence, and, and do what he can to, um, sidestep those, but I think he's, he's alrea- he also is acknowledging that he has to be ready for just about anything, and this con- in this atmosphere. And for those of us who were around in 1999 and, uh, you know, can obviously play the key role there, but I, I was covering it when I was, you know, working for the Washington Post at the time, and I would have never thought that 20 years in, 21 years into the future, I would think that something all the more controversial and polarized was about to unfold.

Jeffrey Rosen: [00:25:32] Nor I, uh, having followed it too. Ken, you did play a central role in the, in the last impeachment trial. Based on your experience, what advice would you give to the senators who are deciding whether or not to hear witnesses, but think that the House did a poor job. How should they resolve the most contested questions of the trial that they will soon face?

Kenneth Starr: [00:25:55] Well, not withstanding the deep partisan nature of impeachment, the founding generation understood that there would be a partisanship, and deeply so, warned against, uh, undue, uh, passion carrying the day, and so forth. Uh, I would say that, uh, even in this, uh, deeply divided and acrimonious time, the oath that you're about to take and will have taken, it calls upon you to be "impartial". So my advice, which is so counter-cultural to Washington generally, but especially to the political branches more specifically, is do your best to not make too many substantive comments or pejorative comments, uh, uh, outside, uh, the chamber. Uh, there's another thing that prevents, uh, a United States senator from, uh, going out and saying, uh, what's being presented is garbage, or what's being, uh, done is terrible, etc. That, that is going to, especially early on in the trial or the presentations, it's going to strike a fear-minded person as, "Gosh, that sounds pretty partial, and you just took an oath to be impartial." Hard to do, but I think nonetheless, that should be the goal. That would be my advice to my senator.

And he said, "Well, wait. I'm up for reelection," or whatever. I'd say, "Well, all I can do is advise you as to the nature of your obligation under the constitution. You just took an oath to be an impartial, uh, judicator of, of this most fundamental question in our democracy."

Jeffrey Rosen: [00:27:29] And Joan, based on your study of Chief Justice Roberts, and your, and your great biography, The Chief, and also of your study of the, of the Clinton impeachment trial, what advice would you give to the chief about pitfalls to avoid and benefits to gain?

Joan Biskupic: [00:27:45] Well, far be it for me to advise the Chief Justice of the United States, but I know that he will likely follow the lead of his mentor, uh, Bill Rehnquist, in a couple ways, not just in terms of how he presides, but in terms of what he brings over there. Uh, you know, it, it's right across the street, and he'll, he'll likely be driven over, just as, uh, Chief Justice Rehnquist was driven over to a, a nice easy entrance to go in without a lot of fanfare, uh, but, uh, Chief Justice Rehnquist brought a briefcase full of, uh, uh, court papers and some playing cards in planning to occupy himself, because if, if we know anything about the U.S. Senate, it goes into recess nonstop, and that's what happened so many times back in 1999. This was a five week trial, but if you took all the time that they were actually, you know, meeting in public, it w- it would definitely would not stretch, uh, that far, uh, because they, they constantly have to have, you know, w- what they say, "Let's have a quorum call," while they worked out things behind the scenes.

So Rehnquist, who was so, such a model of efficiency and always on the clock, uh, I- always had something to do on the side, and, uh, and if he couldn't, if he couldn't preoccupy himself with the cases that the justices were hearing in that January sitting, he'd pull out a set of cards and play poker.

Jeffrey Rosen: [00:29:06] That's great.

Kenneth Starr: [00:29:07] [laughs]

Jeffrey Rosen: [00:29:08] Uh, d- do you know if Chief Justice Le- uh, Roberts uses a laptop? Can he do some, uh, telecommuting from across the street?

Joan Biskupic: [00:29:13] Well, I know he writes out his, a- when he's drafting his opinions, he writes in long hang. Uh, because of court security, I'm not sure how, uh, how much they're gonna wanna, you know, how much the telecommuting goes. But I would think just, again for efficiency sake, he'll have enough materials with him. He does a lot of his, his reading also still in, uh, hard form, hard copy form. Um, you know, he's, oh, and here's the other thing, just, uh, he is a, a, he, he has taken advantage of some of the modern, uh, devices of our world, but he, uh, as I said, he's still writing on a legal pad, uh, with a pen. But right, he's, I consider him a very young Chief Justice. When he was appointed in 2005, he was only 50, and the youngest, uh, Chief Justice in 200 years, uh, but he's, in the middle of all this, he'll be just turning 65, uh, on Ja- January 27th. So he'll, he'll, uh, he'll, he'll bridge kind of the two worlds of the court and the Senate, and, uh, and the old fashioned work of the, the Supreme Court, and trying to nonetheless keep busy with a number of devices and aids that he brings with him.

Jeffrey Rosen: [00:30:17] Wonderful, well all We The People listeners, uh, I'm sure will join me in wishing him a happy birthday on January 27th. Final, final thoughts. Ken, what, what, what are you most looking for in this trial based on your experience with the last one, and what, uh, homework would you give to We The People listeners? A particularly illuminating book or article or artifact that you think might teach them something they didn't already know about impeachment.

Kenneth Starr: [00:30:40] Yes. I think one of the most fascinating, uh, books, in addition to The Chief, uh, but more specifically on impeachment is David Stewart's, uh, magnificent history, uh, of the impeachment trial, and the name of the book is simply Impeachment, uh, with a long subtitle. It also provides a very intriguing, um, introduction to the personalities at the time, and frankly, the corruption at the time, because it's widely believed by historians who studied this, including David Stewart, that corruption was, in fact, part of that, uh, particular saga, which was so bitter. Uh, I, I do hope that not withstanding a, an acrimonious start, that, uh, senators McConnell and Schumer representing their respective caucuses, will be able to find common ground on these, uh, pesky procedural issues.

I'm not optimistic. It is a hope rather than an expectation. Uh, but that, I think, is so critical. Can we agree, as again was done under Clinton and I think would have been done under Nixon. Remember, speaking of a bipartisan approach, over 400 members of the House of Representatives voted in favor of the impeachment inquiry of Richard Nixon. 31 Democrats voted in favor of the impeachment inquiry, uh, into Bill Clinton. Here, of course, we're off, as they say, in the 21st century, the first of, uh, presidential impeachments in this century, may it be the last. Uh, ha- we're off to a very poor start with acrimony on both sides and finger pointing, and the like. To the Chief Justice, I would say, and I associate in ways [inaudible 00:32:22] Joan. Far be it for me to give advice the Chief Justice of the United States, but if I were told, "You must give him some advise," it would say, "Stay above the fray, and give every appearance that you are not arrogating power to yourself, but even perhaps to a fault, you're deferring to the views of the United States Senate."

Jeffrey Rosen: [00:32:41] Just a quick, very last word. Joan, in addition to your wonderful, The Chief, and your other great books on justices O'Connor and Sotomayor and Scalia, what, uh, book would you recommend to We The People listeners to learn more about impeachment?

Joan Biskupic: [00:32:54] Wow, there, ju-, eh- there've been a series of really good books on impeachment out recently. There's, um, the, uh, new book on impeachment by Brenda Wineapple. Michael Gearhart has another version of his book in impeachment out. Uh, he advised, um, senators during the Clinton impeachment. So there's, there's a lot of, uh, good material out there, uh, from all quarters, uh, including the interesting one of, um, uh, Neal Katyal that's, uh, out recently, and, um, just the whole, the, the, you know, more of a political case for impeachment, but, uh, I think your listeners can, can easily get a good bit- bibliography of, uh, political and historical reading on impeachment.

Jeffrey Rosen: [00:33:38] Thank you so much, Joan Biskupic and Kenneth Starr, for an illuminating, civil, and, uh, historically informed discussion of the Chief Justice and the impeachment trial to come. It's always an honor and a pleasure to have both of you. Joan, Ken, thank you so much for joining.

Joan Biskupic: [00:33:54] Thank you, Jeff.

Kenneth Starr: [00:33:54] Thank you.

Jeffrey Rosen: [00:33:57] Today's show was engineered by Dave Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich and the constitutional content team. Homework of the week, you heard it dear We The People friends, what is the next line in Gilbert and Sullivan's Iolanthe after the house of lords throughout the war did nothing in particular, and did it very well. If you send it to me, [email protected], I will send you a copy of Conversations with RBG. That's how much I love Gilbert and Sullivan. Please rate, review, and subscribe to We The People on Apple podcasts and recommend the show to friends, colleagues, or anyone everywhere who's hungry for a weekly dose of constitutional debate. And always remember that the National Constitution Center is a private non-profit. We rely on the generosity of people from across the country who are inspired by our non-partisan mission of constitutional education and debate. You can support the mission by becoming a member at ConstitutionCenter.org/membership, or give a donation of any amount to support our work, including this podcast at ConstitutionCenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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