Many commentators have said they believe Chief Justice John G. Roberts Jr. should play a largely honorific role in presiding over the Senate’s impeachment trial of President Donald Trump. They point to Bill Clinton’s trial, in which then-Chief Justice William Rehnquist, for whom Roberts clerked, famously said, “I did nothing in particular, and I did it very well.”
But this argument overlooks the role the founders intended the chief justice to play in impeachment trials. While the Constitution doesn’t offer much detail other than that “the Chief Justice shall preside,” a review of the Federalist Papers shows that the founders in fact wanted the chief justice to be much more than a ceremonial officer or a potted plant. They wanted him or her to play an important, substantive role, as one who presides in the sense of a judge overseeing a trial, or even the vice president presiding over the Senate.
This has major implications for Trump’s trial as it gets underway. If Roberts takes an activist approach as the framers intended, he could rule on requests for witnesses and documentary evidence directly or break 50-50 ties in the event that the Senate votes on witnesses or documents. That means Democrats would only need three Republicans to join them in a call for witnesses, if Roberts agreed.
The founders need to be consulted here, though it takes some effort to tease out their reasons for injecting the chief justice into the Senate trial. Out of concern that publicity could undermine free and full debates, the proceedings of Constitutional Convention of 1787 were held in private. We have James Madison’s notes and the recollections of other participants as to what transpired. But, on the whole, we know little about the full deliberations, as there are gaping holes in Madison’s notes. As a result, one of the primary sources most scholars and lawyers consult to understand the founders’ intent is the Federalist Papers—published anonymously at the time but, as we now know, written largely by Alexander Hamilton, who managed to marshal arguments in favor of the Constitution’s various provisions more or less as they emerged in final form from the convention in Philadelphia.
Federalist 65 is the most important paper for understanding the role intended for the chief justice in an impeachment trial. Writing in the spring of 1788 to “the People of the State of New York,” Hamilton laid out the considerations that went into making the Senate the body to try impeachments, and, in a couple of very important sentences, he explained why the chief justice would preside over the trial.
Federalist 65 begins with a debate about the composition of what Hamilton consistently called the “court of impeachments.” We know that the House of Representatives was to have the “sole power” to impeach or accuse. Note that there is no provision for any other branch of the government to take part in the House’s impeachment inquiry; the founders did not insert, for example, a member of the Supreme Court or an officer from the executive branch. That is not true with impeachment trials; the founders intentionally inserted a representative of the judicial branch, namely, the chief justice, into a process taking place in the legislative branch—a not insignificant imposition. This is the first clue that the chief justice was meant to play a substantive, not just ceremonial, role in the “court of impeachments.”
Secondly, when it came to the composition of the impeachment court, the founders considered various alternatives to the Senate. They started with the idea to use the Supreme Court in full, but that was rejected. Another popular proposal was to have the Senate and the Supreme Court (both smaller in number at the time) sit together as one body when trying impeachments. This sort of conglomeration was the model followed by the state of New York at the time, Hamilton noted in Federalist 66.
The arguments Hamilton made against having the Supreme Court act as the impeachment court were three-fold: 1) the members of the tribunal were not seen as “endowed with so eminent a portion of fortitude” as the senators; 2) it was doubted whether the justices “would possess the degree credit and authority” among the people as would elected representatives; and 3) the court was expected to be too small in number to make the profound decision of impeachment.
Having set down these concerns, Hamilton turned to another objection. Because impeachment called for a political remedy—removal from office and potential disqualification from holding public office in the future—an impeached officer might still face criminal charges after impeachment. This would create a conflict of interest in that the Supreme Court would be the ultimate arbiter of both the political punishment and the criminal punishment.
This is where Hamilton zeroed in on injecting the chief justice into the equation. He noted it could be desirable to have a union of the Supreme Court and the Senate but that the potential for a conflict of interest prevented the creation of such an impeachment court. Nonetheless, he felt it was desirable to inject the judicial branch into the trial, and he framed it as follows in Federalist 65:
“To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.”
What is clear from this passage is that the founders wanted some sort of “union” between the Senate and the Supreme Court in the impeachment body, though in a limited fashion. This doesn’t sound like a purely ceremonial matter, in which the chief justice was just being borrowed to sit and watch the proceedings. What’s more, Hamilton pointedly referred to the chief justice as the “president of the court of impeachments.” This provides context to the phrase in the Constitution, “the Chief Justice shall preside.” What sort of president has no authority? What sort of president can be overruled by a simple majority vote of the body over which he presides and still be considered the president of the body? In that case, the impeachment body itself presides.
In this respect, I think the Senate’s rules allowing the senators, by a majority vote, to overrule the chief justice are blatantly at odds with what Hamilton described in Federalist 65. He or she “presides,” not the senators. Such a subservient role for the chief justice might even border on being labeled unconstitutional.
The precedent set in the only two previous impeachment trials in our history are of limited help. During Andrew Johnson’s impeachment, then-Chief Justice Salmon Chase did play a substantive role, even breaking some ties. That the Senate overruled him on some procedural rulings suggests mostly that it was a time of immense national crisis and uncertainty—no one challenged what the Senate did. In Clinton’s impeachment, the substance of the trial was of such insignificance to national security or constitutional integrity that it made total sense that Rehnquist would utter his famous line about doing nothing and doing it well.
As Hamilton outlined, Roberts has a substantive role to play in deciding the admissibility and relevance of evidence in Trump’s trial, including the calling of witnesses and the admission of documents. This is a court of impeachment, and he is the president of that body. Hopefully, he will not follow the precedent of his late mentor, Rehnquist, and will set precedents of his own.