Will the chief justice play a big part in the impeachment trial?
Welcome back to the Impeachment Briefing. After the White House team wrapped up its opening arguments, we’re taking a closer look at the man presiding over the impeachment trial. |
- Taking less than 90 minutes, President Trump’s lawyers concluded their opening arguments this afternoon. Pat Cipollone, the White House counsel, called on senators to “end the era of impeachment” by declaring Mr. Trump not guilty.
- Jay Sekulow, one of Mr. Trump’s personal lawyers, cast doubt on John Bolton’s claim that Mr. Trump withheld security aid to Ukraine until officials there helped investigate Democrats. He referred to it as an “unsourced allegation” that was “inadmissible” in the trial, and he argued that even if Mr. Bolton’s allegations were true, the behavior he described was not impeachable.
- Mr. Cipollone capped the presentation by playing a highlight reel of Democrats arguing against a partisan impeachment during Bill Clinton’s presidency. “You were right,” Mr. Cipollone said, looking at Chuck Schumer, the top Senate Democrat. “All you need in this case are the Constitution and your common sense.”
- After Mr. Trump’s legal team finished, Republicans conferred on whether to allow witnesses, a move that 75 percent of Americans support, according to a Quinnipiac University poll released today. In a private meeting, Senator Mitch McConnell, the majority leader, announced that Republicans don’t yet have the votes to block witnesses, which he said would keep the trial from going another few weeks.
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Tomorrow and Thursday, House managers and White House lawyers will answer questions submitted in writing by senators, who won’t be able to speak during the sessions. The questions will be read by Chief Justice John Roberts, and will alternate between Democrats and Republicans. |
Mr. McConnell said this afternoon that there will be eight hours of questions tomorrow and eight on Thursday. Citing a precedent from the Clinton trial, Chief Justice Roberts asked that the House managers and White House lawyers try to limit their response time to five minutes per question. |
A vote to consider allowing new witnesses and evidence in the trial is expected to follow, as early as Friday. |
Over to you, Chief Justice |
During opening arguments, Chief Justice Roberts was almost invisible, announcing the opening and closing of the trial and not much more, irking observers who wanted him to referee. But tomorrow gives him a chance to have meaningful influence, when he delegates questions from senators. |
There are two other significant ways Chief Justice Roberts could play a role this week. |
The chief justice in an impeachment trial functions much in the way a vice president does when he or she presides over the Senate, meaning he can intervene in a tie, perhaps on the question of calling witnesses. During President Andrew Johnson’s impeachment, Chief Justice Salmon Chase issued two tie-breaking votes on motions. |
And there’s a more direct way Chief Justice Roberts could participate: calling witnesses himself. Two Georgetown law professors and a former Republican congressman this week made that case, arguing that Chief Justice Roberts could take advantage of a clause in the rules for impeachment trials that says presiding officers can issue orders unilaterally. But even if the chief justice were to subpoena Mr. Bolton, a Senate majority could still decline to hear what he has to say. |
To get a better sense of the political winds the chief justice is facing, I talked to my colleague Adam Liptak, our Supreme Court reporter, who has written about Chief Justice Roberts’s impeachment predicaments. |
Adam, what is John Roberts like as a person? You’ve covered him for a dozen years now. Can his personality help us think about how he’s approaching a key moment like this in this trial? |
He’s extremely well prepared, mild, witty, controlled and a student of history. He’s an institutionalist, and an institutionalist in two senses: He was initially nominated to replace Justice Sandra Day O’Connor. Had he been an associate justice, he might well have been simply a reliable conservative vote. |
But since President George W. Bush changed his nomination to that of chief justice after Chief Justice William Rehnquist’s death, Chief Justice Roberts took on the additional responsibilities of being the custodian of the Supreme Court’s prestige and authority. And he’s deeply committed to that. |
He’s an institutionalist in a second sense: He respects the separation of powers and the duties that the Constitution confers on each of the branches. |
In the last few years he has voiced his concerns about partisanship, and how he doesn’t want it to spill over into the court. He recently referred to the judiciary as a source of “national unity.” How does he carry that idea into the Senate chamber tomorrow when he reads the questions? |
Chief Justice Roberts is under no illusions that the other two branches, which he calls the political branches, will act anything but politically. He sees the role of his own branch as above politics. In taking on the hybrid role of presiding over a trial inside one of the political branches, he has to balance competing instincts. But he finds himself in an impossible situation. If he does very little, he will disappoint Democrats hoping for a more robust trial. If he takes a commanding role, he will be criticized for overstepping. |
So far, the chief justice’s most newsworthy moment was when he scolded the two sides for not being civil. Did that surprise you? |
I was a little surprised, but the even-handedness and mild tone of the remarks was characteristic of Chief Justice Roberts. It can’t be easy for him to sit and listen for hours on end. He may have felt the ordinary human impulse to play a role in the proceedings he’s nominally presiding over. |
If one side says something obviously untrue, can he say so? |
I don’t expect him to challenge even outlandish arguments or statements of fact. We’ve seen him urge the two sides to maintain a civil tone, but I don’t think he views his task as fundamentally judicial in the sense of what he does at the court. |
What do you think his objectives are in the trial? |
The institution the chief justice cares about is the Supreme Court. If he were credibly accused of partisanship at the impeachment trial, it would damage his reputation and the reputation of the court. My sense is that his main goal is to avoid sustaining that kind of damage. He probably does that best by following the example of his predecessor and former boss when he was a law clerk: Chief Justice Rehnquist, who presided over the Clinton trial with a very light touch. |
 | | Art Lien for The New York Times |
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There was a dramatic escalation in the Senate’s milk-drinking escapades. |
We’ve written about the trial rules limiting beverage consumption in the Senate chamber to just milk and water, and over the past week several senators have been spotted drinking regular milk at their desks. Today, Senator Mitt Romney, an important vote in the trial, took it to another level: He brought a bottle of chocolate milk. |
I asked his communications director, Liz Johnson, for an explanation, and she told me it was merely Mr. Romney’s longtime love of chocolate milk at work — Ann Romney, his wife, once said that it was his food-and-drink-related vice, though he sticks to the low-fat variety. |
 | | Representative Hakeem Jeffries, a House manager, and Jay Sekulow, the president’s personal lawyer.Erin Schaff/The New York Times |
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- Erin Schaff, one of The Times’s photographers in Washington, shot these beautiful black-and-white portraits of the legal teams that are arguing the impeachment case before the Senate.
- The Washington Post got to the bottom of a question we’ve heard from several readers: Who’s paying for the president’s lawyers? Turns out the Republican National Committee is footing a good portion of the bill, under a law that allows officeholders to dip into campaign funds to cover legal fees.
- John Kelly, who served as Mr. Trump’s chief of staff for a year and a half, said on Monday evening that he believed the accounts from John Bolton’s book and would like to see Mr. Bolton testify in the impeachment trial, according to a report in The Herald-Tribune of Sarasota, Fla. “I think some of the conversations seem to me to be very inappropriate, but I wasn’t there,” Mr. Kelly said. “But there are people that were there that ought to be heard from.”
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