Chief Justice Roberts Navigates Shoals Of The Impeachment Trial

Jan 31, 2020
Originally published on January 31, 2020 5:41 pm

Updated at 8:34 p.m. ET

Like it or not, Chief Justice John Roberts finds himself drawn into impeachment controversies perhaps more than he anticipated. Over a 24-hour period, he has twice refused to put a question from Sen. Rand Paul, R-Ky., to the House impeachment managers and lawyers for President Trump.

In each case, Chief Justice Roberts refused to submit the question. There is no indication precisely why, but Paul was trying to ask a question about an unproven conspiracy theory related to the whistleblower who sparked the investigation leading to Trump's impeachment; the question included the name of an individual Paul later maintained could, in fact, be the whistleblower.

According to sources, Roberts indicated to Senate Majority Leader Mitch McConnell's staff in advance that he would not read a question that contained the individual's name. Roberts likely was supported in his view by the Senate parliamentarian, who has been routinely advising the chief justice.

An agitated Sen. Paul abandoned his post as a juror, leaving the Senate floor to hold a press conference, where he complained about the Roberts ruling, and named the individual once again.

He also has tweeted several versions of a question that asks whether the individual had "a close relationship" with a former National Security Council staffer who now works for the House Intelligence Committee. The House committee is chaired by Rep. Adam Schiff, the California Democrat who is leading the presentation of the case against Trump in the Senate.

Under the whistleblower law, it is illegal for inspectors general or their staffs, who are charged with investigating these complaints, to reveal a whistleblower's identity. In addition, there are other laws that protect the identity of intelligence officers.

Paul said he thought Roberts had made "an incorrect finding."

In the period leading up to the impeachment inquiry, the Inspector General for the Intelligence Community, Michael Atkinson, found that the information in the whistleblower's complaint "appeared credible."

In the Clinton impeachment trial then Chief Justice William Rehnquist relied on the parliamentarian to guide him through the proceedings, much as Roberts is doing now. But unlike the 1999 Senate trial, there is no bipartisan agreement on how to proceed, and the two parties have been consistently at odds over whether to call witnesses.

Indeed, on the first day of the trial, past 1 a.m., as the House managers and the President's counsel were spitting nastiness, Roberts stepped in "to admonish both the House managers and president's counsel in equal terms to remember that they are addressing the world's greatest deliberative body." As an example of the kind of civility for which the Senate is typically respected, Roberts described an objection in a Senate trial that took place in 1905 to the use of the word "pettifogging."

"I don't think we need to aspire to that high of standard," said the chief. "But I do think those addressing the Senate should remember where they are."

That interjection, like Roberts' decision about the Paul question, did not appear to be unplanned. It was carefully researched, with a reference to 1905, and may have been prompted by a complaint about tone sent from Sen. Susan Collins, R-Maine, through the Senate staff.

Neither did a response to a question Friday from Senate Minority Leader Chuck Schumer who asked if the chief justice would vote to break a 50-50 tie on a resolution.

"If the members of this body, elected by the people and accountable to them, divide equally on a motion, the normal rule is that the motion fails," Roberts responded. "I think it would be inappropriate for me, an unelected official from a different branch of government to assert the power to change that result so that the motion will succeed."

Roberts has always believed in meticulous preparation, and when Sen. Paul sent his question up to Roberts to read, the chief justice and the Senate staff had the parliamentary response at the ready so that it all happened very seamlessly. He simply said: "The presiding officer declines to read the question as submitted."

There was a bit more drama on Thursday, prompted by a question from Sen. Elizabeth Warren, D-Mass. While the chief justice likely viewed the question as an attempt at intimidation, he read it with a poker face:

"The question from Sen. Warren is for the House managers: 'At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court and the Constitution?"

Replying to Warren's question, the lead House manager, Adam Schiff, had a way better answer, given the circumstances: "Senator, I would not say that it contributes to a loss of confidence in the chief justice. I think the chief justice has presided admirably."

While the question kerfuffles played out, so too did a far less serious question: Was the chief justice wearing a Patek Philippe watch with an estimated value in the tens of thousands of dollars?

Watch bloggers posted photos of Roberts' wrist watch, partially hidden by his cuffs, with breathless observations as to why this was the real deal and not a knock-off.

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As the Senate impeachment trial nears a final vote, the man at the center who continues to make news - probably despite his best intentions - is the chief justice of the United States, John Roberts. NPR legal affairs correspondent Nina Totenberg joins me now, and, Nina, you had predicted he would keep a very low profile.

NINA TOTENBERG, BYLINE: He has kept a low profile. You know, the chief justice makes almost a fetish of being well-prepared. He never makes a public appearance where he has not prepared some kind of delightful historical story that's exactly on point. And even in the Supreme Court chamber, he tries to keep order so that - to make sure that the lawyers get a chance to answer one justice's question before another one piles on. And watching him during the impeachment trial, it seems he's not seeking the limelight, but he's not afraid of it, either. So last week, at roughly 1 in the morning of a very late night, when he had two major adversaries from the trial before him spitting nastiness, he intervened, and here's what he said.


JOHN ROBERTS: In the 1905 Swain trial, a senator objected when one of the managers used the word pettifogging, and the presiding officer said the word ought not to have been used. I don't think we need to aspire to that high a standard, but I do think those addressing the Senate should remember where they are.

KELLY: I remember, Nina, I was hosting live coverage at that moment, and you could hear the room fall silent. And we were all going, wow, what is pettifogging? Quick - look it up.

TOTENBERG: (Laughter) Making false claims.

KELLY: Yes. Things got hotter from there.

TOTENBERG: Yes, things got hotter when Senator Rand Paul this week, trying to get an unproven conspiracy into the record, sent up a question to the desk for the chief justice to read naming a person who Paul said could be the whistleblower. And here's what happened.


ROBERTS: The presiding officer declines to read the question as submitted.

KELLY: What was your take on that moment, Nina? Do you think John Roberts was surprised...


KELLY: ...By this attempt?

TOTENBERG: No. I think he undoubtedly thought somebody was going to try to do this. He relies enormously on the parliamentarian. They were ready for this. The identity of the whistleblower is protected by the Whistleblower Protection Act, as you well know, Mary Louise. And if that individual is a member of the Intelligence Community, there are other laws that make it illegal to reveal his identity, so they were ready.

KELLY: Which does not mean that Senator Paul was happy...


KELLY: ...About how this played out.

TOTENBERG: He was very unhappy, agitated - stormed out of the Senate chamber, abandoning his post as a juror to hold a press conference in which he said that Roberts made an incorrect ruling. He said the question had nothing to do with the whistleblower, and then he proceeded to read aloud the name of an individual.

KELLY: So a couple of the more dramatic moments where we saw John Roberts step in here, but you have reported his objective in overseeing this trial was, I need to protect the Supreme Court.

TOTENBERG: That's exactly right. But he also is the face of the judiciary, the third branch of government, and he is a graceful wearer of that crown. So while I think he likely thought the question that I'm about to play for you was an attempt at intimidation, he had a total poker face when he read it.


ROBERTS: Question from Senator Warren is for the House managers. At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court and the Constitution?

TOTENBERG: And way, way smarter than Warren's question is the answer that came immediately from Adam Schiff, the lead House manager.


ADAM SCHIFF: Senator, I would not say that it contributes to a loss of confidence in the chief justice. I think the chief justice has presided admirably.

TOTENBERG: In other words, don't ask such a foolish question.

KELLY: So headline - do you think he will come out of this reputation unscathed?

TOTENBERG: Yeah, I think so.

KELLY: That was NPR legal affairs correspondent Nina Totenberg.

Thank you, Nina.

TOTENBERG: Thank you.

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