The most important person in the impeachment trial is missing. It isn't Trump.
Why John Roberts' refusal to preside is more significant than many have acknowledged
For more than two hours on Wednesday afternoon the senators at Donald Trump's second impeachment trial were addressed by a congressman best known for farting on live television and falling for a Chinese honey trap.
Why Democrats would choose Rep. Eric Swalwell to help present their case is a question for Mr. Owl. His role is a perfect illustration of what makes these proceedings so tedious. We are solemnly assured that the trial is the most important thing happening in the world, yet nothing of interest can be said about it. The participants on either side are engaged in a rote mechanical exercise; the outcome is not remotely in doubt.
Two persons who will not be appearing at the trial could have made it a more memorable affair. One of them is the accused himself, whose testimony would at least have been entertaining. The other is Supreme Court Chief Justice John Roberts, whose refusal to preside is more significant than many observers have acknowledged.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
As law professor Gregory Mark has pointed out, the Chief Justice's absence not only provides the former president with a specific and at least somewhat plausible legal remedy in the unlikely event that he is not acquitted; if Trump chose to run for office again after being convicted, it would also put the Supreme Court in a very uncomfortable position. "The fates lead the willing and drag the unwilling."
Ever since United States v. Nixon, the high court has made it clear that it considers impeachment a purely political matter that is beyond the purview of its authority. In theory, a conviction by the Senate would not be subject to any kind of legal challenge, much less adjudication by Roberts and his fellow justices.
But if Trump were convicted in this case, he and his lawyers would almost certainly argue that the trial was unconstitutional precisely because Roberts did not preside, directly in contradiction of the plain words of the text, rendering the judgement and the penalty of disqualification from office void. I, for one, am less interested in whether this is a compelling argument than I am in the fact that in what Democrats consider an ideal outcome it would almost certainly be made and would thus require an answer. The precise legal mechanism that would signal such a challenge — the refusal of the Federal Election Commission to file paperwork on behalf of his presidential campaign, a primary ballot access lawsuit — does not matter. Sooner or later, probably long before any actual voting, the courts would have to rule on the question of whether the Senate trial was conducted in a legitimate manner.
I cannot begin to guess how the Supreme Court would rule in such a case (with the exception of Roberts, who would obviously recuse himself). I also suspect that the justices would do almost anything to prevent themselves from having to rule one way or the other. If it had appeared possible even for a moment last month that Democrats were close to the 67 necessary votes to convict Trump, making future Supreme Court litigation on impeachment a near certainty, would Roberts have made the same decision? I doubt it.
Why then did Roberts refuse to participate, creating a highly improbable but logically possible scenario in which Trump would be able to void a Senate conviction? It seems to me unlikely that the Chief Justice had some nefarious motive here. Rather than a sly attempt to preclude the possibility of Trump's conviction and disqualification from office, Robert's decision not to participate strikes me as a tacit rebuke of the process itself, an extra-legal ruling of sorts.
This is not as strange as it might sound. Roberts, whom Trump criticized repeatedly, is probably as ready as millions of other Americans to put the last administration behind him. What he is not so subtly suggesting is that holding a second impeachment trial in as many years is a waste of his time and the country's. It is hard to disagree with the Chief Justice's verdict here.
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
Matthew Walther is a national correspondent at The Week. His work has also appeared in First Things, The Spectator of London, The Catholic Herald, National Review, and other publications. He is currently writing a biography of the Rev. Montague Summers. He is also a Robert Novak Journalism Fellow.
-
The long road ahead to rebuild life in Gaza
The Explainer As the Israel-Hamas ceasefire takes effect, Palestinians return to find 90% of homes destroyed, health and water infrastructure in ruins, and acute food poverty
By Elliott Goat, The Week UK Published
-
Why trout is the new salmon
The Week Recommends Oven-roasted, hot-smoked or topping a jacket potato, trout is winning favour over salmon for its sustainability and delicate flavour
By Irenie Forshaw, The Week UK Published
-
The never-ending wonder of Pompeii
In The Spotlight A luxury bathhouse is the latest treasure to be uncovered at the 'gift that keeps on giving'
By Chas Newkey-Burden, The Week UK Published
-
'The world is watching this deal closely'
Instant Opinion Opinion, comment and editorials of the day
By Justin Klawans, The Week US Published
-
South Korea arrests impeached president
speed read Impeached South Korean President Yoon Suk Yeol has been detained, making him the first sitting president to be arrested in the country's history
By Peter Weber, The Week US Published
-
North Carolina Supreme Court risks undermining its legitimacy
Under the radar A contentious legal battle over whether to seat one of its own members threatens not only the future of the court's ideological balance, but its role in the public sphere
By Rafi Schwartz, The Week US Published
-
Trump sentenced after Supreme Court rejection
Speed Read Chief Justice John Roberts and Justice Amy Coney Barrett joined the three liberal justices in the majority
By Peter Weber, The Week US Published
-
Chief justice warns against defying Supreme Court
Speed Read Supreme Court Chief Justice John Roberts noted that public officials keep threatening to ignore lawful court rulings
By Peter Weber, The Week US Published
-
Failed trans mission
Opinion How activists broke up the coalition gay marriage built
By Mark Gimein Published
-
South Korea impeaches president, eyes charges
Speed Read Yoon Suk Yeol faces investigations on potential insurrection and abuse of power charges
By Peter Weber, The Week US Published
-
South Korean president vows to fight removal
Speed Read Yoon Suk Yeol defended his martial law decree and said he will not step down, despite impeachment efforts
By Peter Weber, The Week US Published