, 25 tweets, 7 min read
THREAD: The Dread Justice Roberts (Tl;dr – the Chief Justice may be Trump’s Senate trial nightmare just by being fair)
1/ The point made by @Peggynoonannyc that a long Senate trial could be bad for Trump got me thinking. wsj.com/articles/the-i…
2/ “Under Article I, Section 3, Clause 6 of the Constitution, the Chief Justice presides over the Senate impeachment trial if the President is being impeached.” senate.gov/reference/reso…
3/ Does anyone think it’s great for Trump to have a serious person who has publicly expressed institutional independence - Chief Justice John Roberts - playing this important role?
4/ One day someone may write a book called “Judging Trump” about his decades as a litigant in court. My guess is the book will show judges despise the man (apologies, Trump biographers, maybe you’ve already written this.)
5/ Don’t you think the book will show judges don’t take his BS? Because before he became President, Trump was relentlessly litigious, often ran afoul of judges, and worse.
6/ Newsweek: “Over the course of decades, Donald Trump's companies … systematically destroyed or hid() thousands of emails, digital records and paper documents demanded in official proceedings, often in defiance of court orders.” newsweek.com/2016/11/11/don…
7/ As President, there have been countless times when Trump has made racist, false, ignorant, inciting, contemptible comments about judges and the judiciary. Don’t you think judges have noticed?
8/ The most notable example of a Judge standing up to Trump was, of course, Roberts. He struck back. Has there ever been a similar SCOTUS rebuff of a sitting President?
9/ “We do not have Obama judges or Trump judges, Bush judges or Clinton judges ... we have ... an extraordinary group of dedicated judges doing their level best to do equal right to (litigants) ... The independent judiciary is something we should all be thankful for.”
10/ @adamliptak - “That blunt statement may represent a turning point in the relationship ... which … had been characterized by slashing attacks from the president and studied restraint from the chief justice.”
11/ Senate impeachment trials of presidents have few experts or precedents. Clinton lawyer Greg Craig: “When the Senate decided what the rules were going to be for our trial, they really made them up as they went along.”
12/ Still, it seems clear the Chief Justice has the power to issue evidentiary rulings while presiding over the trial.
13/ “The Senate has not adopted (impeachment) rules of evidence ... The Presiding Officer (has) authority to rule on ... evidentiary questions ... (and) may ... put ... (them) to a vote ... ... any Senator may request ... vote(s) (on evidence rulings)." senate.gov/reference/reso…
14/ Leading Con Law prof/former SG @WalterDellinger has opined that Roberts would hope to avoid substantive rulings but could be drawn into disputes over the admission of evidence or other matters.
15/ "While they may be overturned by the vote of the Senate," Dellinger says, the chief justice's rulings "nonetheless would come with some moral force."
16/ A key matter in the law of evidence is “relevance” (ask any second-year law student). For Twitter purposes, relevance means “is the evidence on-point to the elements of the matter charged or is it extraneous BS?”
17/ So many of Trump’s proffered defenses to the Ukraine scandal have been total BS. I’m thinking particularly about his personal, partisan, unfounded attacks on the whistleblower and his incoherent rambles about the MemCon/partial “transcript.”
18/ (Btw, you can have your own “perfect” call with Trump @TheDailyShow -

And read a good @Popehat lawsplainer re whistleblower identity - )
19/ I’m smiling as I tweet thinking about how Roberts might handle relevance objections if Trump tries to present some of his BS in a Senate trial. Judges indulge criminal defendants on relevance but Trump might find that when it comes to his BS John Roberts is no Jeanne Pirro.
20/ John Roberts in the chair may mean Trump’s BS is not going to fly in the Senate. Is Roberts likely to “let them play” and not make ticky-tack calls? Yes. Can the Senate vote to overturn evidentiary rulings by the Chief Justice? Yes.
21/ Does removal still require a 2/3 vote constrained more by politics than law? Yes. Is the authority of the Chief Justice ultimately a bit opaque? Yes -
22/ Could Roberts in the chair be a nothingburger like Rehnquist at the Clinton trial? Yes: "I took a leaf out of [the Gilbert & Sullivan comic opera] Iolanthe and … did nothing in particular, and did it very well.”
23/ But the record developed by a lengthy public trial overseen by a GOP-appointed, anti-choice CJ will have a notable impact on public opinion. Maybe on Senators, too.
24/ Merely by doing his job fairly and impartially like countless Trump judges judging Trump before him, Chief Justice John Roberts may do more than anyone to seal Trump’s fate. END
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