Kopf: A Short Take on Overruling the Chief Justice

Obviously, I take no position on whether President Trump should or should not be impeached. Even if I had a position, I would not reveal it. But I am intrigued by the fact that the Chief Justice of the United States becomes the Presiding officer in such a trial pursuant to Article I, Section 3, Clause 6 of the Constitution. That is:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

(Emphasis added.)

But, what does “preside” mean?

Back in the day, when Chief Justice Salmon Chase presided over the impeachment of President Andrew Johnson, the Chief Justice made at least two procedural rulings that the Senate as a whole overruled.[i] Michael J. Gerhardt, Trial of Impeachment, The Heritage Guide to the Constitution (last accessed September 26, 2019).(Because of an odd linking problem that I cannot solve, it is best to copy “Trial of Impeachment and Heritage” and paste it into your browser.)

The Senate now has rules about such things. Rule VII of Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials states:

The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the Presiding Officer on the trial shall direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate. Upon all such questions the vote shall be taken in accordance with the Standing Rules of the Senate.

(Emphasis added.)

So, let’s imagine. A lawyer asks a question of a witness during the impeachment trial. The other lawyer objects. The Chief Justice inquires, “What is your objection, Sir?” The first lawyer responds, “The questions makes no damn sense Mr. Chief Justice!” The Chief Justice overrules the objection. A Senator asks that a formal vote be taken. The question of whether the question makes no damn sense is then put before the body for a vote.

Delicious.

Richard G. Kopf
United States District Judge (Nebraska)

[i] As you may remember, the President escaped impeachment by one vote.

21 thoughts on “Kopf: A Short Take on Overruling the Chief Justice

  1. Bear

    From an intellectual point of view, that procedural issue, amongst others, are “delicious.” But this will be the third impeachment investigation in my adult lifetime, and that makes me extremely worried about our body politic.

  2. MarkJ

    “As you may remember, the President escaped impeachment by one vote.”

    Andrew Johnson was, in fact, impeached by the House. However, he escaped conviction in the Senate by one vote (35-19, just short of the necessary 2/3 majority).

    1. Richard Kopf

      Thanks MarkJ.

      After all, I once tried an impeachment and the target escaped conviction. One would have thought I would have been more accurate as a result of my prior experience. Just like my prior failure, however, I have once again proven that I am not worthy.

      As for you, I intend to hunt you down.

      All the best.

      RGK

        1. Richard Kopf

          albeed,

          Invoke the cancel culture on MarkJu and you shall be rewarded beyond your wildest dreams. Vox nihili.

          All the best.

          RGK

  3. Steve Brecher

    “So let’s imagine…” …that Trump is impeached, and the Senate declines to try him. “The Senate shall have the sole Power to try all Impeachments.” –Not the same as if it were, “The Senate shall try all impeachments.”

    1. Richard Kopf

      Steve,

      That may be possible, and I have seen speculation of such an eventuality written about recently. However, Rule III of the Senate Rules seem to suggest that the duty to try an impeachment of the President is mandatory. In part that Rule states:

      Upon such articles being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.

      All the best.

      RGK

      1. Steve Brecher

        Thanks, Judge!

        Since it’s a Senate rule, I wonder if it could be suspended … oops, how did I get into all these weeds?

        1. norahc

          “Since it’s a Senate rule, I wonder if it could be suspended … oops, how did I get into all these weeds?”

          *in best Sir Stanley voice* “Justice Garland I presume.”

  4. bl1y

    This seems… fine?

    As I understand it, the rule is basically that the Chief serves to keep things moving, and maybe bring a bit of procedural wisdom to the whole thing, but ultimately all the power still resides in the Senate. That sounds like probably the best way to handle things.

  5. Fubar

    This supports my theory that Senate membership consists entirely of the impoverished and woke. So woke that they need not debate admissibility of evidence, and so poor that among their hundred they can’t find a single coin to flip:

    And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; …

    When the Senate the House would beseech,
    To convict him whom they might impeach,
    The impromptu rules,
    Of wise men or fools,
    Shall determine conformance or breach!

  6. Ray

    What does “preside” mean? That’s a good question.

    But before that gets answered, can someone please first define “high crimes and misdemeanors.”

    Please…

      1. Richard Kopf

        SHG,

        If Ray is a serious person, and for starters only, he should open his browser, access the following, and then read:

        CRS Report for Congress, Received through the CRS Web, 98-894 A, October 30, 1998 Impeachment Grounds: Part 2: Selected Constitutional Convention, Materials, Charles Doyle, Senior Specialist, American Law Division.

        As for me, and as you well know, I have no opinion that I am willing to express on the gentleman’s question.

        All the best.

        RGK

        1. SHG

          As you know, and particularly when it gets to things that cannot be discussed, I have a strong preference for keeping comments on topic. But that’s just me, and what do I get to say about comments at SJ anyway?

        2. Ray

          Ray is a serious person, and always a gentleman. I will definately take a look, and appreciate the direction–thank you.

          I remember thinking about this in 1998. Frankly I didn’t like President Clinton’s BS–why didn’t he just say “no comment on my private life” instead of wagging that finger for the camera and telling us that he “didn’t with that woman.” Why didn’t he just let a default judgment enter against him as suggested by Allen Dershowitz and not get deposed to begin with. Why not just tell the truth? I don’t think I would have voted for him again if he could have run for a third term, because of his nonsense, but it didn’t seem to me that his conduct rose to the level of “high crimes and misdemeanors,” and what exactly did that phrase meant.

          No one ever defined it in law school. I think I have a sense of what it means– I think it means whatever the Senate chooses to say it means. I think because the Senate gets to decide that definition, there is not much to “preside” over.

          It seems then that “preside” must mean the Chief Justice just sits there, maintains order and decorum (as best he or she can), and most important of all, must look good at all times.

          It is important to look good at all times.

    1. Steve Brecher

      “Bribery” has a straightforward definition, and it’s listed right next to “high Crimes and Misdemeanors.”

  7. John Barleycorn

    Speaking of delicious…

    Does this mean that Deb and Ben are coming over for beers and a BBQ? Rumor has it all the in-the- know-non-lawyers in the senate read SJ in order to keep up with the other kids.

    I hope they do, and if they do, I hope the conversation gets interesting and after one thing leads to another, the three of you decide to place some bets on your individual rabbit shooting skills.

    If that happens which it should as it would be an affront to all Cornhuskers if it didn’t, are the University of Nebraska–Lincoln alumni gonna let the Harvard and Yale grad who is more than twenty years the junior shoot first or make him run the rabbit targets down range and set them up under the shrubs and shoot last?

    I got my money on Deb. But if you want to be competitive for second place I would make sure you remind them both that neither of them is one of the fifty seven sitting senators with a law degree and every time Ben misses you ask him what it was they taught him again at Yale while earning his doctorate in American History.

    Oh yeah… Rumor has it that the Chief Justice guy, you mention, is already trying to visualize just how big of a barn door will be allowed after the vote before the vote before the other votes you suggest in the post. But don’t you worry your horse or the chickens, as he used to work at his old man’s steel plant in Indiana or some god forsaken place. So something tells me he won’t let on as long as there is the faintest of “pings” if they figure out how to hit the damn thing at all after passing the riffle around on the senate floor. He is just the “umpire” after all….

    P.S. Being an “umpire” yourself it may be best if you don’t laugh out loud, even in the privacy of your own home, if any members from either sides of the aisle mistakenly decides to look down the barrel after any misfires on the senate floor especially while debating what they are voting on during the “trial”.

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