The NPR Politics Podcast - How Chief Justice Roberts May Preside Over Senate Impeachment

Episode Date: January 10, 2020

House Speaker Nancy Pelosi is expected to hand over articles of impeachment to the Senate next week and when the trial begins, Chief Justice John Roberts will be in the center chair. But how much power will he have? If past is prologue, the answer might be... not much. Plus, what Bill Clinton's impeachment might tell us about what to expect from the Senate trial. This episode: White House correspondent Tamara Keith, legal affairs correspondent Nina Totenberg, and senior editor and correspondent Ron Elving.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Ron Elving, Editor-Correspondent. I'm Neanne Totenberg, and I cover the Supreme Court. And for those of you wondering why this isn't our weekly roundup, it's because another group of our team is in Chicago recording it live on stage. And that will be in your podcast feeds on Saturday afternoon. So in lieu of our regular weekly roundup, we are going to talk about impeachment. But we're going to talk about history. We're going to talk about how it works. And we have two of NPR's greatest legal minds

here to talk about this. Nina, are you of two minds? No, but Ron, you edited Nina for a long time. So I think that counts, right? And I actually, actually, my first month at NPR was the trial of Bill Clinton in the Senate in his impeachment proceedings. And I was co-anchoring those impeachment proceedings. For NPR. For NPR. Okay, so there's still a lot of stuff that we don't know about how this Senate impeachment trial is going to work. We know that the House has impeached the president. We know there's a lot of disagreement. Before we get into this, Ron, just the basics.

How does a Senate impeachment trial work? What does this look like? The Senate convenes and the senators sit at their desks and they listen to the proceedings as the rules have decided those proceedings will proceed. And we don't know the rules yet, so we can't see exactly what it's going to look like. But it's going to be unusual in that you almost never see all the senators in the chamber at the same time. Even when they're voting, they kind of come and go. And so it is an echo chamber most of the time. It's the cave of wins, as some people have said. But in this instance, it's going to look more like a classroom with a lot of overgrown grade school children, boys and girls, sitting

in their places with bright, shiny faces and being very serious and being presided over by Chief Justice John Roberts. And that's because the Constitution says that the chief justice shall preside over the Senate trial of a president. Okay, so that is not normal. The chief justice of the United States does not typically step foot in the Senate chamber, but there he will be. So this sounds like a really important role, presiding over this trial. Well, it could be, but in modern history, it has not been. We've had three Senate impeachment trials in our history. The first was Andrew Johnson in 1868, and the chief justice then was perfectly willing to tip the scales a little bit if he could, but it didn't quite work. Andrew Johnson, by one vote, was not convicted

and removed from office, remained in office for the rest of his tenure, elected tenure. But we didn't have another impeachment trial until Bill Clinton's in 1999. And then Chief Justice William Rehnquist did preside. And we know that, you know, it says in the Constitution, you're going to preside. And we're all going to see the Chief Justice up there, right there, above everybody else, on this dais-type thing where he will sit with a gavel. But we also know that if passed as prologue in modern times, he's not going to have much power and he's not going to want to have much power. Chief Justice Rehnquist had this driven home for him rather precisely when he asked the Senate Sergeant at Arms, James Ziegler, how he would turn on his microphone. He asked me, well, how do I turn on my microphone?

And I looked at him and I said, you don't. We control that. Okay. And I looked at the video yesterday. I looked at it. And very often he begins to speak and his microphone is not on. So, Ron, there's this word, presiding. You know, I have images that are conjured in my mind of like on Law & Order where the judge, you know, determines like there's an objection.

No. Sustained. Or Judge Judy. Yeah, maybe that's the image I really have in my mind. The other end of the spectrum. We have the idea that a judge rules in that judge's courtroom. And that is, generally speaking, the way things work in the judicial system. But this is a very special case.

And the rules are clearly being made by the politicians, by the senators, by the people who are on the floor and not by the judge, who is really there only to make judgments with respect to rules of evidence, perhaps. But even then, those rules are going to be set by the senators and then enforced by the God. Because the Senate, by simple majority, can overrule any decision by the Chief Justice. So they set the rules out at the beginning and at the end. Okay, but so practically, on a day-to-day basis, what is the chief justice of the United States going to be doing in the Senate chamber? He's going to be keeping order. The senators are actually not supposed to speak. In 1999, there were a couple of times where they had objections. Those could have been overruled by simple majority vote after the Chief Justice made a decision, but they were not of the decide that he's going to make some sort of a ruling that is significant.

The Republican majority leader, Mitch McConnell, would face a tough choice in sort of going up against him. So there is a certain inherent but very limited power that the chief justice ultimately could have, though I think it's not terribly likely. We've talked about the role. We've talked about the job. But now let's talk about the guy who is doing the job, Chief Justice John Roberts. Nina, he's been on the court for about 15 years. You've been covering him that whole time. He's a very smart, very conservative, very buttoned down, but charming guy. And he has a very interesting relationship with the president of the United States, Donald Trump, because Trump, during his campaign, blasted Roberts for being a disgrace, a disaster, a nightmare, all because he had cast the deciding vote upholding the mandate in Obamacare.

And notwithstanding that, he occasionally will switch sides and vote with the court's more liberal justices. But I would say you could count on less than one hand the number of times that has happened. So to have him castigated that way is really a commentary on our times and the relationship the two men have. And then, you know, our president likes to tweet. His comments about lower court federal judges have frequently been very derogatory, and he characterizes them as Obama judges or Clinton judges or Democratic judges or so-called judges if he doesn't like what they did. And finally, it got to Roberts and he issued a statement saying, we don't have Obama judges. We don't have Bush judges.

We don't have Trump judges. What we have are people who work very hard trying to do the jobs they're supposed to do. Yeah, Ron, it seems like he has been trying, and it is definitely not an easy thing to do, to try to say, no, the judicial branch is not part of the politics branch. And it is difficult because people have increasingly seen the courts as political. They see the judges as being the servants of one party or the other. So at some point during this trial, Roberts could be called upon to make a decision that the president of the United States may or may not like. There could be tweets. There could be complaints from others that he's favoring the president or not. Like, does this process help his cause of trying to make the court above it all?

Not any way I can figure. And I think he's probably going to try to avoid being the one who makes those decisions. He might, of course, be faced with a situation where he simply had to make a decision and the Senate could then override him. Let's take a quick break. And when we get back, how this trial is likely to be different than the last one, which you both covered. This message comes from NPR sponsor Warby Parker, creating boutique quality eyewear. Warby Parker offers eyeglasses, sunglasses, and now contacts, including Scout, their very own comfortable, breathable, and affordable daily contact lens. Every Warby Parker frame includes custom-cut, scratch-resistant lenses with UV protection and anti-reflective coating at no additional cost. Try on five frames at home for free at warbyparker.com slash politics.

NPR's Life Kit wants to help you make changes that actually stick this new year. From how to do dry January to how to start a creative habit. We've got new episodes all month to help you start the year off right. New episodes every Tuesday and Thursday. Listen and subscribe to Life Kit. It's the baseball player trying to get a pay raise, the prisoner building a blockchain out of cans of mackerel. Planet Money from NPR. Listen now. And we're back. And as I have said before, there is a very small sample size here when it comes to impeachments and processes. And so quite frequently we look back on the Clinton impeachment because that is the one that we remember and both of you covered. Butks that nobody else had access to. Trent Lott and Tom Daschle decided

from the very beginning that they needed to work together. And in an interview I did with the two of them, here's Lott talking about it. And I said, well, Tom, this thing, whether we like it or not, is sitting in our lap and we've got to figure out how to deal with it. So that's the first big difference. Next, they were very determined to work out some procedures that they could all agree on. And they met for hours and hours in the old Senate chamber where they normally don't meet. It's mainly a tourist destination. And they met behind closed doors. But wait, who is they? Is it the entire Senate? It's not just these two dudes working it out. It's the entire Senate.

The entire Senate. They meet. There's no formal record of it. And Tom Daschle said that the difference in the conversation between what they did in public versus what they did in private was night and day. And oddly enough, it was Senator Ted Kennedy, a very liberal senator from Massachusetts, and Phil Graham, a very conservative senator from Texas, who suddenly found that they agreed on what they thought that overall procedures should be. And the two leaders looked at each other and said, we might have something here, let's do it. And they sent their staff then to write up the rules. And it punted a bit what they were going to do about witnesses down the road.

One thing I don't understand about the Clinton impeachment was, OK, they started without agreeing on witnesses. And then at some point they agreed, yes, we'll have witnesses. Well, the House managers were very insistent that there should be some witnesses. So finally, they said, okay, but we're not going to do it the way you want in the well of the Senate with Monica Lewinsky testifying about all the lurid details of what the president's conduct was. We're going to have Lewinsky and two other witnesses you want off-site. We'll do a formal testimony. We'll have the managers question them. There'll be people from the Senate who can question them. And then the House managers, as they present their case, can use whatever excerpts they want, video excerpts. And they brought in these like jumbotron-like things onto the Senate floor for them to do that.

Highly unusual procedure in the Senate floor for them to do that. Highly unusual procedure in the Senate. So at some point, the Republicans sort of forced the issue. How could it work this time? This is a little different situation because in this case, the president's party controls the Senate. It's the Republicans in charge in the Senate. And the Republicans were in charge back in 1999, but that was a Democratic president. So there you had a majority who theoretically, at least, were not sympathetic to the president. Here we have a clear majority that is, at least officially, in total sympathy with the president here. And we don't really have anybody breaking from that, although a couple have made some sort of interpretable remarks, ambidextrous remarks, if you will.

And aside from that, you have a pretty strong phalanx of Republican support for Mitch McConnell, enough so that he feels he can bull ahead. So that's a little bit different situation. It was clear, I think, in 1999, and correct me, Nina, if you have a different impression, but there was a kind of impatience with the whole thing on the part of many of the Republican senators in the majority. In the end, neither of the articles that came to the Senate back in 1999 got even a majority of the vote in a majority Republican Senate. Well, remember that the difference also is that the Republicans had just had their heads handed to them in an election where the Republicans were counting on adding 20 House seats to their majority. And instead, they lost half a dozen seats.

And plus, of course, and this is important to note, there was only about 30% support in the polls for that impeachment proceeding. 30%. Now, you can argue just where the public support is for removing Trump from office, but some polls have had it north of 50% by a little bit. Again, this is very different. And in that interview with Lott and Daschle, Lott said there was no way that they were going to be able to remove Clinton. They knew that. And what they wanted was to escape this process with their dignity and with the dignity of the Senate intact.

One thing that stood out to me, Nina, from one of the stories that you've done about this is a Republican Senator John Warner from Virginia talking about just the weight of the impeachment. This is the John Warner who was eventually the chairman of the Armed Services Committee, who's now in his 90s. And the way he talked about it, you had the sense that this really was a very serious matter to him and many others. We're in our cocoons. And as time went on, the significance of it was so great. I felt that every breath I drew, I had to reassure myself, this is exactly how you feel about it. I guess the question I'm left with from that is, is it such a different time that that weightiness, that that feeling, somehow is it going to spring up when the Senate trial starts? Or is this just pure politics now? We'll have to see. But one speculates that the kind of partisanship that Nina's been describing

is now more powerful than the sense of the Senate and the overpowering, we must be our own image of the Senate at its best, that we saw in 1999. We are going to leave it there. Eventually, we will know how this all works out. But for now, that's a wrap. But that's not it for this week. Our weekly roundup will be in your feeds tomorrow when we post our live show from Chicago. And we've got more shows coming up. Head on over to nprpresents.org for more information. I'm Tamara Keith. I cover the White House. I'm Ron Elving, editor correspondent. And I'm Nina Totenberg, legal affairs correspondent for NPR.

And thank you for listening to the NPR Politics Podcast.