Would John Marshall, our most influential Chief Justice (1755-1835), have stood for a trial without witnesses?

Under the Constitution, the Vice President presides over the Senate — except during presidential impeachment trials. The Vice President would inherit the President’s position if the trial led to conviction, so the Founders feared the VP’s bias. Who then? An obvious choice would be the President pro tempore of the Senate: the Senator who presides in the Vice President’s absence. Or the Senate could elect another Senator. But instead of those natural choices, the Founding Fathers reached out of Congress and chose the Chief Justice of the United States. Why?

If the Founding Fathers had wanted presidential impeachments run by a non-entity, with no authority, they would have chosen a Senator. They chose the nation’s highest judge because they wanted the presiding officer to ensure justice and faith in the process, the way judges do.

The Senators are essentially jurors, while the Chief Justice runs the case. Except on the final question of conviction, which the Constitution reserves to the Senators, the Chief Justice can choose whether to enforce Senate votes and follow Senate rules.

A good judge does not exercise more power than necessary. The Chief Justice has accepted the Senate’s procedures and decisions, until today. Today, he must have felt an exercise of power necessary, when he refused to allow Senator Rand Paul’s questions about the whistle-blower. (Roberts presumably sought to maintain legally-required protection of the whistle-blower’s identity.) Chief Justice Roberts can also refuse to enforce a GOP vote to exclude witnesses. And he should, to ensure a fair trial and faith in America’s government.

© 2020 by David W. Tollen