John Roberts is facing a moment of truth. It appears increasingly possible that the Senate will split 50-50 on calling witnesses to testify in the trial of President Donald Trump. While Senate Majority Leader Mitch McConnell has done all he can to get Republicans to toe the party line, Sens. Susan Collins, Lisa Murkowski, and Mitt Romney are raising conscientious objections that may lead them to join 47 Democrats to call for witnesses, which would result in a tie vote.
It would then be up to Roberts to decide whether, as presiding officer, he will break the tie. Speaker of the House Nancy Pelosi on Thursday called on Roberts to fulfill his constitutional role and obligation to the rule of law. “I would hope that the Senators—if it comes to a tie, or if there’s a question of hearing testimony or receiving documents—would leave it up to the chief justice of the Supreme Court,” Pelosi said. “I would think that they would have confidence in the chief justice of the United States.” In fact, the decisive precedent for such a tie-breaking vote was established during the impeachment trial of Andrew Johnson. As presiding officer, Chief Justice Salmon Chase broke ties at two turning points in the proceeding.
Chase’s actions had a firm foundation in the constitutional text, which allows the vice president, who is the Senate’s normal presiding officer, to remain in the chair when other governmental officials are impeached. In these and all other situations, the Constitution explicitly states that the vice president “shall have no Vote, unless [the Senate] be equally divided.” If the vice president regularly breaks ties on less consequential matters, surely Chase was right to assert tie-breaking authority when presiding over Senate deliberations on Johnson’s fate.
Moreover, the Senate rules confirm this point by explicitly granting the chief justice the sole authority to “direct all the forms of proceedings” at the trial. If there is a tie on witnesses, it would be up to Roberts to issue a “direction” stating that 50–50 means “yes” or “no.” Without his ruling on this issue, the trial cannot “proceed” to the witness stage (“yes”) or to a final vote on conviction (“no”).
In facing up to his constitutional responsibilities, Roberts will then have no choice but to confront Alan Dershowitz and his assertion that the House’s charges do not add up to an impeachable offense. If Roberts believes that Dershowitz is right, there is no point in hearing any more witnesses, and he should send the matter onwards for a final vote.
But Dershowitz is dead wrong. Despite his claims to the contrary, if he had “done his homework,” he could never have reached a conclusion which is so out of line with serious scholarly opinion.
According to Dershowitz, the trial of Andrew Johnson serves as an authoritative precedent to support his view that the mere “abuse of presidential power” is an insufficiently grave charge to warrant impeachment.
But Dershowitz has failed to dig deep enough into the facts to recognize that the crucial impeachment article against Johnson did more than containing free-floating allegations of “abuse.” It contains two particular charges that have remarkable parallels to those made by the current House against Trump.
The first charge against Johnson asserted that he “attempted to prevent” the enforcement of a congressional resolution ordering him to allow Edwin Stanton to retain his position as Secretary of the Army. The key word here is “attempted.” In fact, Johnson tried, but failed, to discharge Stanton, but the secretary refused to obey his order, and insisted that he should follow the instructions issued from Capitol Hill.
Trump is charged with making the same kind of “attempt” in connection with Ukraine. But in his case, the managers have a great deal of evidence supporting their claim that—in contrast to Johnson—Trump succeeded in removing officials who tried to prevent him from forcing Ukraine’s president to investigate the Bidens.
The second charge advanced in 1868 is even more relevant today. It attacked Johnson for “unlawfully devising and contriving” to manipulate funds appropriated by Congress “for the support of the army for the fiscal year ending June 30, 1868” in ways that abused his fundamental obligation “to take care that the law be faithfully executed.” This is almost identical to the charge advanced against Trump for manipulating “the release of $391 million of United States taxpayer funds that Congress had appropriated” in order to force Ukraine to intervene in the forthcoming election.
Dershowitz has never confronted, much less refuted, these facts. Yet they led 35 out of 56 senators to convict Johnson of “High Crimes and Misdemeanors” in 1868—one vote shy of the two-thirds required to remove him from office. Moreover, historians have compellingly established that the vote of Sen. Edmund Ross, who provided the decisive ballot for acquittal, was purchased in a blatant act of bribery.
Dershowitz hasn’t confronted this fact either. He insists that the purchased acquittal of Johnson serves as a decisive precedent to block the Senate from seriously considering the charges against Trump.
To put it mildly, John Roberts finds himself in a very different position from the president’s lawyers. He has a high obligation to recognize that there is indeed a solid foundation for the view that the charges against Trump are well within the class of abuses that the Constitution condemns as “High Crimes and Misdemeanors.” Nor is there any fair question about his duty to break a tie if Senators can’t resolve the witness question on their own.
Up to the present time, the chief justice has struggled mightily to preserve the Supreme Court’s reputation as a body that can rise above politics at moments of polarizing conflict. Will he rise to this challenge again?