Winnipeg Free Press

Winnipeg Free Press (Newspaper) - January 19, 2020, Winnipeg, Manitoba C M Y K PAGE A9 SUNDAY, JANUARY 19, 2020 ● WINNIPEGFREEPRESS.COM A 9WORLD I TRUMP’S IMPEACHMENT Crossing the First Street divide W ASHINGTON — With an oath of impartiality, Chief Justice John Rob-erts on Thursday became the third American sworn to preside over a presidential impeachment trial. How he fulfils that pledge will have obvious consequences for U.S. President Donald Trump. But it will also shape the public image of the na- tion’s 17th chief justice, and it holds ramifications for the Supreme Court and federal judiciary he leads. He portrays both as places where partisan politics have no purchase. “And now he crosses First Street, where it’s all about partisan politics,” said Harvard Univer- sity law professor Richard Lazarus, referring to the roadway in Washington that separates the Supreme Court from Congress. There are obvious risks for Roberts, but Laza- rus said he doesn’t believe the chief justice will be particularly “risk-averse.” “I don’t think he’s going to look like a potted plant,” said Lazarus, who has known Roberts since law school and has taught summer courses with him after he became chief justice. “He’s not going to erode the stature of the chief justice and the Supreme Court in the process by looking like an insignificant person.” The constitution dictates that the chief justice preside in a presidential impeachment trial, but gives no guidance beyond that. Under Senate rules, Roberts swears in senators, and all questions from senators are submitted in writing to him, then directed to the House im- peachment managers, the president’s legal team or witnesses. The rules also say the chief justice “may rule on all questions of evidence.” But unlike a criminal court trial, with stan- dards of proof required to find a defendant guilty, the question of whether to convict in an impeach- ment proceeding has historically been a political choice for individual senators, who will cast their votes. “John Roberts can, in a sense, do what he wants,” said Brenda Wineapple, author of The Im- peachers: The Trial of Andrew Johnson and the Dream of a New Nation, which details the 17th president’s impeachment proceedings in 1868. Roberts’s predecessors have not left much of a road map. Chief Justice Salmon Chase did not shy from making procedural rulings in Johnson’s impeachment trial and was sometimes overruled by the Senate majority. Chief Justice William Rehnquist took a far more hands-off approach during the 1999 im- peachment trial of President Bill Clinton. His most memorable intrusion into the proceedings was to remind senators that they were not just jurors in the case but the court as well, and thus responsible for setting the rules. Roberts will make his own way, but Wineapple, like most other experts, believes he will hew more closely to the Rehnquist approach. Roberts, who was a law clerk for Rehnquist in 1980, is “always thinking about the long view of history, what came before and what comes after,” Wineapple said. “In that sense I’d imagine he’s going to be extremely cautious about being perceived as listing one way or another because that flies in the face of the myth that the court is above partisan politics.” In his year-end report on the judiciary, Roberts wrote what human resources departments might describe as his goal for 2020: “As the New Year begins, and we turn to the tasks before us, we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.” Some argue that the goal cannot be accom- plished in the impeachment trial simply by being passive. “He’s going to want to be somewhat hands-off, but the fact that the American people want some- thing that looks like a fair trial means he’s going to need to be the judge,” said Elizabeth Wydra, president of the liberal Constitutional Account- ability Center. “Being the judge means issuing rulings on key aspects of a fair trial, including whether or not you have documents and wit- nesses.” In a column she wrote on the subject this week, Wydra said “Roberts may simply be unable to avoid stepping into the fray and getting his robe dirty.” Paul Collins, a University of Massachusetts at Amherst political scientist who studies the judi- ciary, described Roberts’s dilemma. “Any decision he makes in the president’s fa- vour will be interpreted as partisan since Roberts is a Republican,” Collins said. “Yet, any decision he makes against the president will be interpret- ed as biased, too.” That is because of the history of the two men. During the 2016 campaign, Trump declared Roberts a “disaster” and his nomination a mistake because of his vote that saved the Affordable Care Act. Roberts in 2018 issued a rare rebuke of Trump’s criticism of federal judges as biased against him, and frequently lauds the indepen- dence of the federal judiciary. Senate Majority Leader Mitch McConnell, R-Ky., has alternately emphasized and minimized the chief justice’s role in the impeachment trial. Lately, as Democratic demands for witnesses and documents have grown in the Senate, McConnell has reminded that a majority of senators will make the rules. “I would anticipate the chief justice would not actually make any rulings,” McConnell said recently. “He would simply submit a motion to the body and we would vote.” Among those Roberts is turning to for advice in preparation for his new role is his counsel- lor, Jeffrey Minear, and James Duff, who was Rehnquist’s top aide during Clinton’s trial. Roberts subsequently appointed Duff in 2015 to oversee the federal judiciary system as head of the Administrative Office of the U.S. Courts. He is also likely to rely heavily on Senate parliamentarian Elizabeth MacDougal for her expertise in the ways of the Senate. Roberts was famous for his preparation when he was in private practice and arguing cases at the Supreme Court. He anticipated hundreds of possible questions from the justices, and Lazarus imagines the same sort of process is at work now. “Compared to now, there was great partisan agreement during the Clinton trial,” Lazarus said, referring to unanimous agreements between Republicans and Democrats about how to conduct the proceedings. “The chief has to preside over a Senate where there is no agreement between the majority and the minority and he has to prepare for not know- ing what McConnell or Schumer might do,” said Lazarus, referring to Senate Minority Leader Chuck Schumer, D-N.Y., who has pressed his Republican counterpart, unsuccessfully, to insist on calling on witnesses during the trial. But Roberts will also be judged in the greater context of the Supreme Court, which will con- tinue its work as the impeachment trial unfolds. The court has a controversial docket that threat- ens to make plain its conservative-liberal divide on issues such as abortion, gun control and legal protections for LGBTTQ+ workers. The justices currently are considering whether the Trump administration skirted the law when trying to end the Obama-era program protecting young immigrant “dreamers” from deportation. They have accepted cases in which Trump has sued to block release of his financial records to prosecutors and congressional committees. And they’ve been asked to fast-track efforts that once again challenge the legality of the Af- fordable Care Act, President Barack Obama’s landmark health care legislation, the elimination of which has been a priority for Trump and other conservatives. Almost surely headed to the high court is the issue of whether the judiciary has a role to play when the executive branch defies congressional subpoena. Such cases are another reason for Roberts to be cautious in his role overseeing the impeachment trial, said former senator Trent Lott, who served as majority leader during Clinton’s impeachment. For instance, Lott said, Trump might try to block testimony at the Senate trial from current or former administration officials through a claim of executive privilege. “You don’t want to wade into that. He might end up having to rule in the Supreme Court,” the Mis- sissippi Republican said of the chief justice. Lott recalled that at the conclusion of Clinton’s five-week proceedings, senators were so appre- ciative of Rehnquist’s low-profile performance that they rose to give him a standing ovation and presented him with a “Golden Gavel,” awarded by Senate tradition to those who have presided over the body for 100 hours. “I am not sure it quite reached 100 hours, but it is close enough,” Lott said at the time. Rehnquist responded: “It seemed like it.” — The Washington Post ROBERT BARNES AND ANN E. MARIMOW MATT ROURKE / THE ASSOCIATED PRESS FILES The U.S. Capitol, where Chief Justice John Roberts will attempt to preserve the impartiality of the courts while operating in a theatre controlled by Republicans. It is physically and symbolically across the street from the Supreme Court. As Trump’s impeachment trial begins, can the chief justice preside impartially without getting his robe dirty? MATT ROURKE / THE ASSOCIATED PRESS Experts expect U.S. Supreme Court Chief Justice John Roberts to take a hands-off approach, as did his mentor, William Rehnquist, when presiding over the impeachment trial of former president Bill Clinton. ‘And now he crosses First Street, where it’s all about partisan politics’ — Harvard law professor Richard Lazarus, on Roberts presiding over the Senate, across the street from the Supreme Court A_09_Jan-19-20_FP_01.indd A9 2020-01-18 8:35 PM ;