Saying Roberts Can Overrule Senators In Impeachment Trial Isn’t Complete “BS”; He Probably Could; Even If He Dismisses the Entire Proceeding
WASHINGTON, D.C. (January 14, 2020) – Law&Crime reports that several “Law Profs Say It’s ‘BS’ Notion That Chief Justice Roberts Can ‘Overrule the Majority’ at Impeachment Trial,” but the claim isn’t completely incorrect as a statement of what might actually happen in fact. even if it may not be a completely correct statement of traditional constitutional law, says public interest law professor.
The article reported that legal analyst Elie Honic reportedly said on CNN that Chief Justice John Roberts could "order witnesses to testify," even if Senate Majority Leader Mitch McConnell disagreed.
More specifically, here's what was reported:
"I conclude that 'yes' - Chief Justice Roberts can, and I think should, overrule the majority if he has to,' he said. Q. Can Chief Justice John Roberts order witnesses to testify even if Senator McConnell disagrees? A: Yes, Chief Justice Roberts can and I think should overrule the majority if he has to. The Constitution tells us that the Chief Justice shall preside" at the impeachment trial.
Although the article then notes that many constitutional scholars strongly disagree with this interpretation, with one actually labeling it as "BS," as a practical matter it may not only be true in fact, but actually correctly state "the law."
Legal experts on impeachment
As one of our most famous jurists, Oliver Wendell Holmes, once observed: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law."
So "the law" regarding what Roberts can and cannot do is just a prediction of what would happen if he tried, suggests Banzhaf.
Honic argues that "Senate rules allow a majority to overrule the Chief Justice on evidentiary matters (such as calling witnesses), but Roberts isn't obligated to abide by the Senate's internal rules. And if challenged, the explicit language of the Constitution - which states that the Chief Justice 'shall preside' - is clear,' he said. 'It means that he runs the thing, that he's in charge. And there's nothing in the Constitution limiting his authority. So when you put the Constitution up against Senate rules, the Constitution trumps every time."
Several eminent law professors disagree with Honic, but an even larger number, who were just as eminent as these, not only unanimously lost the constitutional case involving prohibiting military recruiters to enter college campuses, but were also very sharply admonished for even making such constitutional arguments, not only by the justices, but also by many prominent newspapers which had supported colleges' alleged right to have such a ban, notes Banzhaf.
So what is likely to happen in fact if the Chief Justice, presiding as the Constitution provides, rules that witnesses must be heard - or, even more importantly, that the articles of impeachment must be dismissed without any trial because, as several legal scholars have maintained, they are constitutionally deficient on several possible grounds: e.g., they do not even reference a single crime, the House's procedures allegedly violated Due Process and/or were otherwise unconstitutionally unfair, the evidence is too weak ("wafer thin" as Professor Jonathan Turley testified) to provide probable cause, etc.
It's very likely, suggests Banzhaf, that enough Republican senators would join with Democrats to sustain Robert's ruling, thereby making Honic's prediction true as a matter of fact, and arguably as a matter of law, if law is nothing more than a prediction of what is likely in fact to happen in a specific situation.
Some Republican senators may accept the view championed by Honic, that the Chief Justice's rulings much be upheld because the Constitution provides for him to preside at the Senate trial, and that implies making appropriate rulings, especially on constitutional or other legal issues. Thus they might support his ruling, even if they would have been inclined themselves to vote the other way.
Impeachment trial and Roberts
Other Republican senators may not necessarily personally support that constitutional argument about Roberts' power, but may nevertheless use it for political cover to justify to their constituents voting to uphold the ruling because they support the outcome; whether that's a dismissal of the impeachment proceedings without a trial, or an impeachment trial which includes the calling of witnesses.
Indeed, putting aside the legal strengths and weaknesses of any such arguments, a ruling by Roberts to dismiss the proceeding ab initio would produce a result which might greatly please both the President and most Republican senators.
After all, as Alexander Hamilton wrote in Federalist No. 78: "There is no position which depends on CLEARER PRINCIPLES, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, IS VOID. No legislative act, therefore, contrary to the Constitution, can BE VALID." [emphasis added]
So, since a Senate trial arguably cannot proceed based upon a document which is void and not valid, an argument can be made to Roberts that the proceeding must be adjourned as void ab initio ["to be treated as invalid from the outset"] without any trial.
Impeachment trial and Supreme Court
Such a dismissal ab initio, regardless of the legal justification, might please many Republican senators. and even the White House, since Trump could claim complete vindication, and then harangue the Democrats for trying to use an unconstitutional tactic to remove him from office.
Meanwhile, some Democratic senators may also support the Chief Justice's ruling because a dismissal at the beginning would avoid actually losing a trial in the Senate which could otherwise be seen as vindicating the President, and both parties would avoid a trial which might prove embarrassing and time consuming.
A prompt dismissal could be especially valuable for Democratic senators campaigning for president. On the Republican side, it might also provide an easy way to deflect Trump's prior demand for a lengthy trial with many witnesses, although now he is also suggesting a possible dismissal.
To further demonstrate that the idea of a dismissal of the proceedings is realistic and likely to attract support, it should be noted, Banzhaf says, that yesterday Republican Senator Rick Scott stated that he is prepared to vote to dismiss the case against Trump, and that he had previously joined with Senators Ted Cruz, Josh Hawley, David Perdue and perhaps others in a resolution to allow a motion to dismiss articles of impeachment for lack of prosecution.
Impeachment trial details
But, notes Banzhaf, it has been reported that it would take 60 votes to pass such a resolution of dismissal outside a trial, and 67 votes to change the impeachment rules.
But, if the Chief Justice should rule - pursuant to his duties to preside over the trial in the Senate - to dismiss the proceedings ab initio because the articles are constitutionally defective and therefore null and void, it would apparently take only 51 votes to sustain his ruling and bring the proceeding to an immediate halt - a decision which almost certainly would not be subject to review in any court.
So, argues Banzhaf, Roberts as a practical matter probably can have his way, at least in dismissing the impeachment trial, and perhaps even in calling witnesses, whatever scholars claim is the law according to their reading of the sparse wording in the Constitution on such issues.