William Rehnquist, Senate, Chief Justice Justice Roberts discussed on We The People

We The People


I'm Jeffrey Rosen. President and CEO of the National Constitution Center and welcome to we the people a weekly show of constitutional original debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among among the American people. The Senate of the United States is on the verge of holding the impeachment trial of president trump and presiding over. That trial will be chief justice. John Roberts to talk about the chief justice's role in the impeachment trial and the history of chief justices and presidential impeachments impeachments. We're joined by two of America's leading experts on impeachment and on the Constitution. Kenneth Starr is of counsel at the Linear Law Firm. Judge Dr has argued thirty six cases before the US Supreme Court he served as Solicitor General of the United States as a circuit judge for the DC circuit and as independent counsel during the Clinton Presidency from nineteen ninety. Four to one thousand nine hundred ninety nine Ken. Thank you so much for joining my pleasure. Thank you and Joan biskupic is a CNN legal analyst who has covered the Supreme Court for Twenty five years. She's previously been an editor in charge for legal affairs. Is it Reuters and a Supreme Court correspondent for The Washington Post and USA Today her most recent book. That chief is a biography of chief. Justice John Roberts Joan. It's wonderful to have you with us. Thank you Jeff. Let's jump right in Joan. What is the most contested question? Chief Justice does Roberts is likely to decide in the upcoming trial of president trump. And how the chief likely to decide it. Well as things stand it could be a question. Having to do with witnesses and evidence given the Dispute Between House Democrats and Senate Republicans at this time as you know his his one responsibility in the constitution. Is that he presides when the president is subject to an impeachment trial but that's all the constitution says and under Senate rules it's actually a very limited role. He's not sitting as a judge. He's not soon as a juror. He's sitting in as a presiding officer her and according to the Senate rules he does not have a vote but he can be asked to decide questions of evidence whether it's relevant or material so one of the house managers as they're they're called when they bring over. The articles of impeachment could try A to put to the chief some question about witnesses now in one thousand nine hundred ninety nine when Real William Rehnquist was in the chair. Those questions about witnesses were worked out by the Senate majority and I would think given the tensions that are brewing. Now that Senate Majority Leader Mitch. McConnell McConnell is going to try to control that question and the Chief Justice John Roberts would be happy to have him control it and finally Jeff if he does does make any kind of determination on witnesses or evidence per the nineteen eighty-six rules he can be overturned by majority of the Senate Senate. Because the bottom line is that this is the Senate's show. The Supreme Court has ruled that the Senate has the sole responsibility to decide whether whether president is convicted or acquitted. And John Roberts will be sitting up there on that data's trying to make sure the proceedings run well but not taking a heavy hand can. Do you agree with Joan that the chief is unlikely to make rulings that he knows might be overruled by a majority of the Senate and when it comes to witnesses could could you imagine Senate Democrats asking chief to compel witnesses after the majority has decided not to hold them in him making a substantive ruling or not. Yes I I think he will make a conscious effort to number one follow history and tradition and so Jonas absolutely right the Clinton model of and Chief Justice Rehnquist. For whom Chief Justice John. Roberts clerked Almost a half century ago The less is is going to be his model and intern. Chief justice rank was used as his model chief justice salmon p chase during the only prior air impeachment that made it to the United States Senate of sitting president in the trial of Andrew Johnson. I I would agree with with the thrust of what Jones sad with perhaps a bit of a tweak and the tweak would be because of his sense that this is the Senate Senate sold power. He should not be making any decision. I'm projecting here the chief would save himself. I count on make any decision that might have a substantive effect an outcome on the substantive judgment of acquittal Or of guilty. This is for the Senate. It's the prerogative of the Senate and thus we know from the Clinton impeachment final point And this is exactly Jones point it was the Senate that worked it out now there. There was cheerful agreement. There were one hundred senators going in in contrast to what is likely to be the case. Now who Agreed no witnesses going in then when the issue emerged again on into the trial after the impeachment managers there's had presented and the president's able lawyers had presented then it was put to a vote and the vote was overwhelmingly seventy two thirty something thing like that overwhelmingly. We do not want life witnesses depositions and so the other thing is that the chief will be aware that there's going to be a lot of negotiation going on between the house managers and the Senate leadership within the Senate itself and his job is to stay above the fray You both mentioned the Clinton Trial and Joan. You just wrote a fascinating article for CNN.com. Based on your study of the files of Chief Justice Rehnquist the peace was called how the last chief justice has handled an impeachment trial of the president of the United States among many fascinating nuggets. You found that Senator Harkin had sent a letter to Rehnquist asking him to adopt limits limits on the house managers questioning a potential witnesses and chief justice rehnquist begged off. Tell us more about that incident and about other things you learned from the Rehnquist files. Yes it was. It was quite a fine because The the actual records from that Impeachment trial are under seal for about fifty years but in Rehnquist personal final files out at the Stanford campus in the Hoover Institution. I was able to find his correspondence while he was presiding over the trial and and As both of you know Bill Rehnquist whatever you thought him on on the law he did have that whimsical side. So of course. He showed up in black robe that was decked out in gold stripes that he had affixed to his robe to his sleeves years earlier inspired by a character in Gilbert and Sullivan's Lancy Fancy and he also quoted from LANC- when he wrote to people to say how it how it went. He said I did nothing in particular and did it very well but but going to the substance of things I found in his in his files. You're exactly right that at one point when he was encouraged to actually I make more of a substantive ruling to intercede he said He did not want to and he said he would claim authority. Only when it's exercise was clearly warranted and the one time probably the the most notable ruling a beyond what was already prearranged When rink think win Chief Justice Rehnquist was dealing with the house managers in the senators head to do with The house managers kept referring in their arguments to the senators as jurors and that was another time when Democrats objected saying they shouldn't be calling us mere jurors and Chief Justice Rehnquist agreed. He sided with them saying that the Senate is not simply a jury in this matter. It's a court in this case. So Oh he he was trying to win. It was timed intercede. He did at other times. He stepped back. But Jeff. You know what it's like across the street three to the Supreme Court. There are no cameras allowed over there. The justices do most of their work in enclosed chambers. So when William Rehnquist it came to preside it was the first time that he was in such a prominent spotlight and he got so many letters from people ranging from things having to do with politics and his voice on the law to the fact that he would stand up intermittently during the proceedings to exercises bad back so so people writing in from all corners of the country to tell them how to fix his back problem. Many thanks for those wonderful tidbits and for the great expressions of concern by fellow back suffers. The quotation is great. We the people listeners. I have to confess I am a fan. It's a it's a private vice that I I have. So here's the homework for the week. The line that rank was was quoting comes from I- ALANTHEA's John said I'm going to read you. The two stands. And if you can write in with the final stanzas to me then I'll send you a a copy of my book conversations with our G here. It goes when Wellington thrashed Bonaparte as every child can tell. The House appears throughout the war. Did nothing in particular and did did it very well. So tell me what comes next and you get the book Okay Ken. You had a central role in the impeachment of President Clinton as the independent counsel and you watched chief justice. Rehnquist presided carefully. What struck you about his performance? What moments jumped? And what do you think. We're his most important substantive rulings I think he had read and Hamilton's federalist seventy eight even though this was not a classic judicial role of Colonel Hamilton said in describing the federal judiciary again. This is an extraordinary unusual role for the chief justice of the United States. That this is to be the least dangerous branch where where power or will is exercised elsewhere but only judgment so I think that Chief Justice Rehnquist steeped as he was in and the trial of President Johnson and aware that President Johnson trial was obviously enormously acrimonious. Ramona's there were eleven articles of impeachment. The reconstruction of the South was at issue and as a serious. If if advocate student of history mystery Chief Justice Rehnquist had to be aware and perhaps his files show this that chief justice chase came under considerable criticism schism after the fact that he was somehow nudging the Senate along in favor of acquittal. Well that would be to Chief Justice Roberts now unconscionable how can I conduct myself so that no fear minded person can say. I was putting a thumb on the scales. And of course that's important for any judge in a judicial capacity to be fair minded and open minded and to listen with respect and so forth so I think there will be this sense. The less the the quip from Gilbert and Sullivan that Chief Justice Rehnquist so colorfully articulated embraced in this context. Is I need to do very little. And refer matters back to the Senate. This is a matter this entrusted to the judgment of the Senate. I think we may hear that over and over again if as I expect. There's a lot of acrimony and a failure to agree as they're happily. There was not that Eh profound profound failure to the contrary during Clinton As the more we learn about the Clinton impeachment the more we know that there was as though the atmosphere was very acrimony is there was an enormous amount of harmony among the all one hundred senators there was not this deep partisan in divine a striking difference indeed Joan what could be surprising about The kind of questions Chief Justice Justice Roberts might be asked to rule on you could imagine questions of executive privilege that some senators might try to take up to the Supreme Court in the middle of the trial if it lasted more than on a couple of days of how could the chief rule on or sidestep those questions. And what are the curveballs. He might face sure..

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