The Chief Justice Shall Preside


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NBC Stamps Dot Com Promo Code NBC STAMPS DOT Com. Never go to the post office again. My feedback of colleagues absolutely remotely total cooperation. It cracks me up to see on. TV show pressure is the pressure that don't have a story from NBC News. This is article two inside impeachment. I'm Steve Kornacki. Today is Friday January tenth. And here's what's happening and you it on the Senate House Speaker. Nancy Pelosi says she doesn't think the impeachment trial in the Senate would be fair but even so Pelosi told her democratic colleagues today that she is preparing to hold a vote to send the articles over to the Senate next week Madam speaking whenever you do send the articles said both articles Cincinnati. Some was voted by the house. Yes once that happens. The trial can begin in in the Senate but well America weights. There's something that many of you are. Article to listeners. have been curious about. Hi Steve Steve Hi from Bonn. Germany Dallas is Texas California wondering what role Chief Justice Roberts will play as the presiding judge. Should there be an impeachment trial. How is chief justice? Roberts likely to react if the senators are the jurors and chief justice. John Roberts presided over the trial. Why do they get to affect the process if they're just the jurors and why doesn't John Robert Get to define what the profit at this? What kind of influence or constitutional rate with a chief justice have over over McConnell and the rest of the Senate Republicans power over the outcome? These are all great questions. Supreme Court itself is defined by tradition by by power by a bit of mystery so naturally the court's role in a presidential impeachment trial is compelling today article to what you need to know about the role of the chief justice in a Senate impeachment trial beat Williams is the the NBC News Justice correspondent. He's helped us answer some listener questions in a past episode. But he's making his true official debut as a guest here on article two today Pete. Welcome to the show my pleasure. So let's start with the basics on this the chief justice of the Supreme Court the Chief Justice will have a role in the Senate impeachment trial trial. What is that role supposed to be this? PODCAST is article two and it's article one of the Constitution that says when a president is put on trial Al for impeachment the Chief Justice Shell preside so he has no choice and John Roberts would be the third to have that responsibility salmon chase. Did it in eighteen sixty gate at the trial of Andrew. Johnson and William Rehnquist was chief justice in Nineteen Ninety nine during the Bill Clinton impeachment trial so the term presiding I is it understood stood. What officially that means? The chief justice should be doing shouldn't be doing are their official responsibilities. Or is there some Artists license here. Well he gets to sit up at the desk in front of the room where the presiding officer of the Senate sits he calls it to order. He says when it can a journey calls for breaks but I think the way to think of it is more like master of ceremonies than trial judge. So you mentioned William Rehnquist presiding over the Clinton impeachment trial around the same time twenty one years. Were you around covering that. I was I- clever the The whole run up to the Clinton impeachment the house proceedings and then the trial in the the Senate where he was acquitted. So you remember this. What was the expectation about? What Rehnquist was going to do there? Well I think the expectation was not very clear because it had been so long since we'd had an impeachment trial in the Senate and a lot of things have changed since then including television coverage so that was one huge difference. Obviously there wasn't much television coverage in eighteen sixty eight. He was a little bit more prepared for it than you might expect because he had actually written a book about the impeachment of Andrew Johnson so he just happened to have done a lot of homework on it. Pursuant to the provisions of Senate resolution sixteen the managers for the House of Representatives have twenty four hours hours to make presentation of their case. The Senate will now here you. The presiding officer recognizes Mr Manager Hide to begin the presentation the case for the House of Representatives. Now at the end of the day. Of course it turns out. He didn't really have to do very much. Because the role is so limited you hear about John. Roberts appointed by a Republican President George W Bush and in sometimes given the way politics works. These days you'll get you know some voices perhaps on the left saying well that what sort of color potentially how he would handle the role Rehnquist back in ninety nine originally appointed to the bench by Richard Nixon than by Reagan to be chief justice. The two Republican presidents promoting him along was there. Any concern about partisan loyalties or any of that affecting how he would handle it back then no no. I don't think so and you know remember that first of all no chief. Justice wants this responsibility. They have it. They're stuck with it in the constitution. But it's not anything thing they look forward to or relish but Rehnquist Well let me put it this way. I think when it was all over everybody thought that Rehnquist was very fair but part of that is because because they just don't have much responsibility over how things actually unfold once. The trial starts the reason. I say they're more like a master of ceremonies. MOONEY's than a judge. Is this in a trial. The jurors decide the facts and the judge decides the law so as the trial goes along their objections about whether evidence can be introduced whether it's relevant whether the question is bringing up hearsay and that kind of thing and those are all decisions made by a judge now the rules. Let's say that the chief justice WHO's presiding can make those calls but they also say that that can immediately be put to a vote by the Senate so if any any senator doesn't like what the chief justice says he can immediately refer it to the Senate for a vote or they can just vote on their own. There's no debate the rule. Say if somebody objects there's an immediate vote so he doesn't really have the final say and they all know that so for that reason they don't sit there in an imperious way. That judges often often do in trials. They are well aware of their limitations. That's interesting so to make the analogy to the kind of trial. Were all kind of familiar with a traditional criminal trial. Maybe something we see on law and order or something. This would be like if the judge in a traditional trial said. Hey that evidence can't be heard the jury then voted Oded. We want to hear it. And then you'd have to have the evidence exactly right And in that sense that brings up the only real definitive thing. They think that William Rehnquist did during the entire impeachment trial for Bill Clinton. There was an objection because one of the house managers. That's what they call the prosecutors from the house who come over to present the case against against the president one of the house managers kept referring to senators as jurors. We are you the distinguished jurors in this case not to be fooled and there was an objection to that MR chief justice I object to the use and continued use of the word jurors when referring to the Senate sitting as Trier's trial on the piece of the president of the United States then Rehnquist ruled. Yes yes that's not exactly right. There are a lot more than jurors so stop calling them jerks the chair of the view that the senator from Iowa's objection is well taken that the core the Senate is not simply a jury court in this case and therefore council should refrain from referring to senators jurors thank ports rich Roy that was about the only definitive ruling he made during the entire trial. One of the things I remember I I still see come up Now in descriptions of that time he wore a special robe. Rehnquist Idiot Gold stripes gold on the road for the occasion. He did well not for the occasion. He had started doing that. Addis Chief Justice he was he was somewhat a rehnquist had his quirky side and he was a huge fan of Gilbert and Sullivan and he had just seen one day. The Gilbert and Sullivan Operetta Iolanda. The law is the true embodiment of everything. That's excellent uh-huh and heads new kind of floor and I might add money in the long. And there's a character in a WHO has a judicial function who wears a robe with gold stripes and he thought boy I sure liked the look though so he asked the Supreme Court seamstress two gold stripes on his robe and one day he showed up in the Supreme Court to the astonishment of all the bus and his fellow justices that he had those gold stripes so he had already been wearing does when he showed up in the Senate but that was As they say on the Law Sui Generis unique only to him. John Roberts does not wear those stripes so you won't be seeing them. They're not part of the normal chief. Justices drag. I'm glad I asked the question because I always thought that was something he had dusted off. Just medication did not realize that was a especially impeachment robe. No you mentioned it to that. This is a responsibility. Perhaps a chief justice wouldn't it was at the case with Rehnquist. Was this something that he felt. It was kind of forced upon him in a role he did not want to play a totally This is a duty the undoubtedly don't want but can't avoid and part of the problem. Is You know number one. It's sort of ceremonial. They're kind of a bump on a log but secondly they have a day job and you know this will happen. The Senate trial will happen. Happened likely while the Supreme Court is in pretty busy time of the year hearing cases and for that reason by the way the Senate rules say that the impeachment richemont preceding should begin each day at noon. Now that's the current rules and that's to give the chief justice time to finish hearing the oral arguments which start art at ten. Am and the Supreme Court across the street and for those folks who don't know the geography the Supreme Court is literally across the street from the US capital. So the chief Banged the gavel. In the oral argument ducks down into the parking garage of the Supreme Court gets in a car zips across the street you know and and the the trial can go on all all afternoon. So in the meantime they're supposed to be hearing cases they're supposed to be discussing cases with their colleagues at the Supreme Court. So you know. It's a real distraction from what his what he's normally supposed to be doing. He he has to take a car. He can't walk across the street he could but for security reasons and to get him over there faster they actually drive him over all right. I think that's a good more less. That's that's what they did with Rehnquist's. That's the precedent Asian. Oh that's what the Supreme Court is all about. I if somebody offered me a card across the street I'd probably take understand. We're GONNA take a quick break here. People we write back Hey It's Chris as you know sometimes it's good to just take a step back from the day to day onslaught of news and take our broader. Look the issues. That's what I'm doing each week on my podcast. Why is this happening? Were exploring topics ranging from school segregation and to climate change. Well the way that I think it is. Climate Change will be to the twenty first century. What modernity west of the nineteenth century it'll be the central subject of questions about economic justice us? Everything that you care about in the world will be affected by climate and digging deep with guests uniquely qualified to analyze issues from mass incarceration to race relations. As you know for the first time in Dr History at the national level whites are on the verge of losing their majority status in twenty years. And I think it's no coincidence that our politics are getting more tribal. Join me for. Why is this happening? New episodes every Tuesday. Wherever you get your podcasts? So we've been talking about the last impeachment the trial in the Senate the role of the chief justice back. Then William Rehnquist. Let's get to the present tense right now if there is a Senate trial for the impeachment of Donald Trump. It'll be John Roberts current chief justice presides over that Roberts has been on the court really fifteen years now. Doesn't seem like it's Bennelong but it's been fifteen years and he actually succeeded needed Rehnquist as as the chief justice when he passed away yes and he was. He was one of Rehnquist's clerks so that doesn't often happen that a former clerk replaces the justice. For whom Tom he wants clerk. But that's what happened there. What is Robert's reputation that he that he would carry into a Senate trial well remember at his confirmation hearing he said It was the job of justices and judges to call the balls and strikes but not to decide who pitches who bats and I will decide every case based on on the record according to the rule of law without fear or favor to the best of my ability and I will remember that. It's my job to call balls balls and strikes and not to pitch or bat. You know that's the reputation he's tried to have as one of judicial modesty and there've been a lot of people who say he he hasn't stuck with that of critics have been especially conservatives were critical of his ruling that rescued obamacare but for the most part He has moved the supreme cream court in an incremental way toward a more conservative direction. But he's not somebody who sees the limelight. There's been some suggestions that the The reputation tation of the court the kind of standing of the Supreme Court in American life ways on John Roberts a little bit you go back. Twenty years the Bush Gore decision Asian that Kinda settled the two thousand election the politicization of the Supreme Court it becomes an issue in in presidential elections. We hear about Donald Trump appealing to the conservative -servative base by promising. Hey somebody from this list will go on the Supreme Court the idea you know they did a lot of folks look at the court now is there are democratic. Justices in Republican. Justices hates that way him in. Does that affect how he would handle something like this. Well yes and no I mean he. I'm sure he goes in there not intending to be anybody's servant he's not going in there to push the proceedings in either a Republican or Democratic Direction. He certainly not going to be the Republicans judge judge but the other thing is even if he wanted to be he couldn't he doesn't have that much power that's the other part of it. The Senate really has all the control over this you the Mitch. McConnell the majority leader. He's talked a little bit about his expectations for how a trial would go including last month How he thought Roberts would handle this? The way this will work is is I would anticipate the chief. Justice would not actually make any rulings he would simply submit motions to the body A and we would vote was McConnell trying to deliver any message there. Well I don't know whether McConnell was trying to tell chief you know just lie back and let us run the thing but in fact that's really how it works now. I don't think he's GonNa Dodge every single question and leave it to the Senate. I think he will have to make some rulings there'll be some procedural angel rulings and by the way A lot is going to depend on whether the Senate calls live witnesses. They did not do that. In the Clinton impeachment they they had had witnesses that were interviewed before the trial when the house managers presented their case. They brought monitors onto the Senate floor and played little videotape excerpts. oops if they have live witnesses on the floor of the Senate. I can't imagine they're going to do that. They seem to not to want to but if they did then I think there would be a lot more or call for the chief to rule on whether certain statements are admissible or not if it were to come to John Bolton or some other live witness testifying vying in a Senate trial. Obviously that would be a difference from what you got in the Clinton trial in one thousand nine hundred ninety nine. What are the variables that Roberts the John Roberts presiding over this would then face that rehnquist didn't have to face back in ninety nine well It's just like in a normal trial. Where a lawyer asks a question and Council Salon the other side says objection is irrelevant? It's immaterial it calls for speculation it's hearsay or whatever and then Roberts is going to have to make rulings rulings now. The federal rules of evidence don't directly apply in a Senate impeachment trial And the rules. Don't really say much about relevance. It just says that the presiding officer gets to decide whether let's see. I'm looking at the rules right now. He may rule on all questions of evidence including but not limited to questions of relevancy materiality and redundancy of evidence an incidental questions which shall stand as the judgment of the Senate unless it's some member of the Senate. She'll ask that a formal vote. Be Taken so in theory. He has the authority to rule on these objections. But in fact the Senate has the ultimate say so if they want an answer they're gonna hear it so again. It's it's that prospect of the jury overriding the Josh. Gosh exactly right. They don't see that one law and order no so yeah last question. I mean again this. This idea that this will be the third impeachment trial in history history. folks looking back twenty thirty fifty years from now. Maybe longer would always see John Roberts name as part of this process if there's a Senate trial But it sounds like the way you describe it. He doesn't want that well he doesn't want it. And in fact he just as Salmon Chase and William Rehnquist before fell be footnotes in the history of these impeachment trials because their role is really as I say largely ceremonial in theory. They've got a lot of power in fact they you don't alright. NBC Justice correspondent. Pete Williams. Pete really appreciate your doing this. Thank you my pleasure. Article Michael to inside impeachment is produced by Isabel. Angel Max Jacobs Clear Tie Aaron Dolton Pref- Iverson Alison Bailey. Adam Novoa and Barbara Rab. Our Executive Producer user is Ellen. Franken Steve League tie the executive producer of audio. I'm Steve Kornacki. We back on Monday. Folks thanks thanks Pitas in from Germany By the made the press. Chuck Todd Cast. It's an insider's take on politics the twenty twenty election and more candid conversations with some of my favorite reporters about things. We usually discuss off camera. Listen for free wherever you get your podcast.

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