Jurisprudence

No One in the Senate Is Going to Follow the Rules on Impeachment. Try This Instead.

Mitch McConnell is a nihilist who is impossible to hold to account. But John Roberts may yet be swayed.

Senate Majority Leader Mitch McConnell is flanked by reporters holding out smartphones and asking him questions.
Senate Majority Leader Mitch McConnell on Monday in Washington. Samuel Corum/Getty Images

Last Thursday, Sen. Mitch McConnell told Fox News’ Sean Hannity that he plans to directly coordinate the Senate impeachment trial with Donald Trump’s White House defense: “Everything I do during this, I’m coordinating with White House counsel. There will be no difference between the president’s position and our position as to how to handle this to the extent that we can.” This is a shocking statement, but it seems have surprised almost nobody. Sen. Lindsey Graham put it even more bluntly. “This thing will come to the Senate, and it will die quickly, and I will do everything I can to make it die quickly,” he said. “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.” McConnell has followed up his pledge by insisting that no witnesses will be called, reversing his own position from 1999.

Lawyerly Democrats and principled Republicans have already expressed their outrage at McConnell’s decision to marry the Senate impeachment trial to the president’s tactical defense effort. A close reading of the special oath senators must take, as provided in the Constitution itself, underscores the right to outrage—Rule XXV of the Senate rules in impeachment trials states “I solemnly swear (or affirm) that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.” Yes, there it is, right there, in the rules. And therein lies the problem we seem to be having. Three years after Merrick Garland was denied a hearing and vote, we continue to believe that the norms, or even the rules mean anything. Yes, Senate “rules” suggest that senators should behave as unbiased jurors. But rules are not enforceable if nobody cares to enforce them, which is why McConnell has just announced that the Bill Clinton impeachment rules will not govern the Trump impeachment trial.

To hyperfocus on the obligations around the Senate oath—as opposed to the broader constitutional problem of a Senate pressed into the president’s personal service—is to fall into the same trap that has beset impeachment proponents from the outset. It’s like explaining to the American public that the Mueller report contained multiple counts of obstruction of justice by pointing to the page numbers and footnotes in his 400-page tome, while the White House and attorney general release a false two-pager that boils down to the assertion that “he didn’t do anything wrong.”

It’s like explaining to the public that asking Ukraine to produce false opposition research on Joe Biden and Russian election interference is wrong (something most Americans agree on) by hyperfocusing on the definitions of legal words like quid pro quo and bribery. In other words, it’s a massive mistake to obsess about the words in an oath laid out in Senate Rule XXV. If we have learned anything about forests and trees and the cult of Donald Trump, it’s that micro obsessions about whether “collusion” and “conspiring” mean the same thing is utterly beside the point when the war is being waged on Fox & Friends.

Many of the Framers were lawyers, true, but the Constitution is not a lawyerly document, and the system of government it contemplates requires no technical legal expertise or knowledge. Three separate branches of government have independent obligations to check one another. Congress checks the president through the power of impeachment. Americans who may not be completely up to speed on the arcane language of Senate oaths, or the complexities of Trump’s pay-to-play Ukraine scheme, are nevertheless well aware that if the Senate throws the impeachment trial to the White House counsel, something has been profoundly broken in this framework of constitutional democracy. Once the framework is dissolved the “rules” are mostly just hood ornaments.

This is why all eyes are now on Chief Justice John Roberts. The “rules” suggest that he is in charge of how the Senate trial will go, but no one knows if he will opt to take the Senate trial proceedings firmly in hand or allow Mitch McConnell to use them for more smash-and-grab–style looting. Roberts has every reason to keep his head down and let McConnell do whatever he wants; it would keep both himself and the high court above the ugliness that is sure to come. Chief Justice William Rehnquist, for whom Roberts once served as a law clerk, famously said of his own role presiding over the Clinton impeachment, “I did nothing in particular, and did it very well.” Roberts would surely like nothing more than to follow suit. It is also true, as my friend Sonja West has urged, that the chief justice of the United States has a constitutional duty to behave as more than just a “potted plant in a fancy robe” in this process. The Framers installed the chief justice as the person to preside over the Senate impeachment process because, despite McConnell’s claims, impeachment is not a mere partisan political effort.

We have no idea how Roberts plans to both stay off the front pages in the coming weeks while also doing right by an institution he authentically reveres. And it’s not just the scope of his oversight of the Senate impeachment trial, either—there’s also the tax returns appeal the court has just agreed to hear that will determine whether Trump finally has to reveal his financial history to the public. What Roberts must do, in order to protect the institution for which he is now the sole public face and steward, will involve the most complicated game of constitutional Jenga ever seen. The docket is already full of bombshell cases that will land in June, the impeachment trial will surely be destination television this winter, and the tax cases will not be the end of a long line of cases probing Trump’s laughable legal assertions of presidential supremacy. Roberts needs to decide how many 5–4 partisan decisions he can afford in one term. He is an institutionalist where McConnell is a nihilist.

Some of the editorializing about what Roberts will or will not permit in the coming months read like special pleading from people who hope he will put the needs of the republic before even his own conservative political preferences; we all still put a lot of stock in the fact that there are “rules” and “precedents” without accounting for the fact that the rules are sparse, arcane, and largely unenforceable. But John Roberts is not immune to appearances. He will experience precisely as much political pressure to oversee a fair Senate trial as we demand of him, which means that the American people still have as much a role to play in the coming months as McConnell.

If Roberts is, as West notes, set up to be the hapless potted plant who will play a merely ceremonial role in impeachment, he might accept that diminished obligation. But if we hold him to an independent constitutional duty to ensure that the power and prestige of the courts play a meaningful role in overseeing the impeachment process, and if we talk and write about that independent duty as if it were more than merely a “rule” or purely aspirational, the chief justice will care that we are watching.

If you are closely scrutinizing the impeachment process mining for clues about the technical rules at work you’re missing the real action here. Forget it, friends, it’s Chinatown. Parsing the language of formal oaths or inchoate claims about what “preside” really means ignores what we all know in our bones already: A Senate trial is still a trial, senators have a duty to hear evidence and testimony and render a decision, the chief justice has a role to play in ensuring that happens. And the failure of these elements is a failure of democracy.