Margaret Taylor of Lawfare is wondering about the role Chief Justice Roberts will be playing at the trial of Donald J. Trump – and whether he may find a way to permit new evidence to be introduced:
Here’s how this might play out: McConnell would introduce the organizing resolution and seek to pass it with 51 votes. If efforts to amend the resolution are unsuccessful, a Democratic senator would then make a point of order on the basis that 67 votes are required. And it would then be up to Roberts to rule on the point of order—presumably with the advice of the Senate parliamentarian, who will be at his side throughout the trial.
How Roberts handles this issue will likely be the first glimpse of what we can expect from Roberts in the trial going forward. He could rule with vigor—or timidity. Senators could accept the ruling—or any one senator could ask for a formal vote. Alternatively, Roberts could put the vote to members of the Senate without making a ruling or recommendation.
There has been a great deal of speculation on what role Roberts intends to play in the Senate trial. Will he engage actively, like Chief Justice Salmon Chase in the impeachment trial of Andrew Johnson, or will he largely sit back and let the Senate do as it wishes, like Chief Justice William Rehnquist during Bill Clinton’s trial? Perhaps, thanks to McConnell, we may have an answer to that question as soon as the trial begins.
And Roberts has been riled in the past by President Trump. Will that influence a Roberts ruling on the matter? The trial starts on Tuesday, following the not-insignificant Martin Luther King, Jr. Federal holiday. This could prove very interesting, especially in the light of Professor Dorf’s suggestion that the Chief Justice may be a NeverTrumper.
