I did nothing in particular and I did it very well,
–Chief Justice William Rehnquist
The Constitution, Article I, Section 3, provides that “[w]hen the President of the United States is tried, the Chief Justice shall preside.” What is meant by “preside” is left unsaid, meaning that it leaves a void, a vacuum. Politics abhors a vacuum.
But wait a minute. While McConnell is not mentioned in the Constitution, Chief Justice John Roberts is. Indeed, it is the Chief Justice of the United States who shall “preside” over the trial, not the Majority Leader. So why isn’t it up to Roberts to decide whether witnesses shall appear?
Mitch McConnell has issued the “rules” for this impeachment “trial.” It comes by way of resolution, but since he’s the majority leader, they will almost certainly be the rules. Among other limitations, it leaves it to the Senate to decide whether witnesses shall be called, whether subpoenas for witnesses shall be issued and whether, after the witnesses are privately deposed, they should testify publicly before the Senate.
This isn’t how it’s normally done in a trial. This isn’t how it’s ever been done in an impeachment trial, including the two impeachments of presidents preceding this trial. But the Senate gets to make up its own rules, and these are the rules McConnell made up. It doesn’t mean there won’t be witnesses, or that the witnesses will be limited to those the majority of the Senate would prefer be questioned publicly.
Every move will have political implications for the Senate, for the president, for the political parties and for the public. This is what’s supposed to keep the Senate majority from getting crazy, that a nation will be watching and, if they fail to perform their constitutional duty in the handling of the impeachment trial, they will pay at the polls for their intransigence.
Then again, we’re already beyond crazy in this hyper-partisan atmosphere where there is no legitimate issue of fact or law to be determined. Everybody who’s interested already knows everything there is to know. We’ve heard the testimony. We’ve heard and read the legal arguments. Maybe some in the Senate have been too busy kissing babies to keep abreast of developments, but if so, what are the chances they’re going to stay awake during the 24 hours of opening argument. By each side.
Whether McConnell will put the kibosh on witnesses, or grant the possible motion to dismiss that brings the curtain down on the show, is unknown. But, as Martin London, a retired partner at Paul Weiss and once the principal lawyer for Nixon’s Vice President, Spiro Agnew, asks, what about the Chief Justice?
Absent anything in the Constitution to the contrary, it seems obvious that the witness dispute should be resolved by the ruling of the constitutionally appointed “Presiding Officer” of the trial. This is especially true if we were to abide by the conservative element of our judiciary that insists on the strict construction of the words of any constitutional or statutory provision.
Why isn’t “let presiding officer decide” the guiding principle here? Because the Senate, without a shred of constitutional authority, has adopted a set of rules that would effectively strip the presiding officer of much of his power to “preside” over the trial.
London presents the argument of absence: if the Constitution doesn’t say he can’t, then he can. It’s the opposite of authority. Rather, the logic flows from the contention that since there is nothing in Article I, Section 3, to preclude the Chief Justice of the United States from taking whatever action he deems proper in his constitutional role of “presiding,” then he has the power. It “seems obvious,” London asserts. Of course, it “seems obvious” is not an argument, but a conclusion, so it contributes nothing.
A trial is, ordinarily, the mechanism by which evidence is presented to the fact finder for determination, upon which the law, as instructed by the judge presiding, is applied. Then again, there can also be trials upon stipulated facts, where no fact is in genuine issue. Of course, the House managers haven’t stipulated to anything, and the president persists in arguing that his call was “perfect.”
But at a trial, the judge presiding does not call witnesses. The advocates for the parties call witnesses. If the Senate majority decides they don’t need no stinkin’ witnesses, does that empower the Chief Justice to “remedy” this defect?
Is there a remedy for this illicit power grab? Yes. The remedy is for the Chief Justice of the United States to exercise his sworn duty and “preside” over the trial unencumbered by unconstitutional Senate rules. If he deems it relevant to call witnesses, he has the power and the duty to do so, whatever McConnell thinks.
Notably, there doesn’t appear to be any possibility that the Senate rules can be “unconstitutional,” as the Constitution leaves it to the Senate to decide what the rules should be. If they decide something, such as advocates need to wear red clown noses when speaking, then it is, by definition, constitutional. But the Senate’s impeachment rule, that the Chief Justice presiding has the authority to determine “questions of relevancy, materiality, and redundancy of evidence and incidental questions” doesn’t easily extend to deeming it “relevant to call witnesses.” Using the word relevant doesn’t create power out of nothing.
Does that mean the Chief Justice’s role is merely “ceremonial,” to sit there like a Rehnquist and do “nothing in particular”?
Rule VII is also the basis of numerous media articles that erroneously state that every ruling by the Chief Justice is subject to being overturned by the will of the Majority Leader, or the majority, and therefore the appointment of the Chief Justice is “ceremonial.” Really? I would not be surprised if you do not find the word “ceremonial” in your copy of the Constitution, because I cannot find it in my copy either.
Of course, the Constitution doesn’t mention the word “ceremonial,” just as it doesn’t mention the authority to call, or direct the advocates to call, witnesses. If authority can be manufactured from the void, so too can the lack of authority. Even if Chief Justice John Roberts chose to insert himself into the witness morass, how would he compel the Senate to accept his command?
But there’s absolutely no reason for him to do so, even if there was affirmative authority, as our understanding of a trial is mere analogue here, and this is a political battle in which the biggest question facing the Chief Justice is stripes or no stripes on his sleeve. After all, there’s precedent from the very model of a modern chief justice.