The Justice Department’s “Interesting” Comments on the Chief Justice’s Role in an Impeachment Trial

The Constitution mentions the chief justice for one purpose only, and apparently it is so he can serve as Charlie McCarthy to Liz McDonough’s Edgar Bergen. Or so one would understand from the Department of Justice’s brief in In re Application of the Committee on the Judiciary, United States House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, currently pending before the D.C. Circuit.

As you may recall, the House Judiciary committee is seeking access to certain grand jury material underlying the Mueller report. It relies on Rule 6(e)(3)(E)(i), which authorizes a federal court to release grand jury material “preliminarily to or in connection with a judicial proceeding.” The Department of Justice, contrary to its own longstanding position stretching back at least to Watergate, opposed the committee’s application on the ground that an impeachment trial is not a “judicial proceeding” under the rule, and, after its new position was roundly rejected by Chief Judge Howell, appealed to the D.C. Circuit.

To bolster its argument, DOJ stresses the “enormous differences” between a Senate impeachment trial and more familiar judicial proceedings in federal or state court. See DOJ Br. at 27-28. An impeachment trial, you see, is conducted by the Senate, not by an ordinary court. The impeachment court consists of senators, not federal or state judges. The decision to convict or acquit is made by senators, not a (conventional) jury. The judgment issues from the Senate, not from . . . well, you get the idea. It turns out that the “enormous differences” are just a longwinded way of saying that, in DOJ’s opinion, a proceeding in the Senate can never be a “judicial proceeding” no matter how much it otherwise resembles a judicial proceeding. See DOJ Br. at 28 (“regardless of how much court like procedure the Senators adopt, the Senate impeachment process is inescapably a congressional one”).

Sure, DOJ concedes, maybe “the Constitution borrows terms from the judicial sphere to describe impeachment proceedings.” DOJ Br. at 27.  Sure, maybe an impeachment trial “can be characterized as adjudicative in nature in some general sense.” Id. (emphasis added- somebody knows how to google a synonym for “judicial”). Sure, maybe there are “some ‘judicial’ trappings in a Senate impeachment trial.” Id. (Putting “judicial” in quotes is a nice touch, but using air quotes at oral argument may be awkward.) Sure, maybe “the Senate in some sense acts as a ‘court’ or exercises ‘judicial’ functions.” Id. (yep, both “court” and “judicial” are in quotes). But none of that matters because “[t]he adjudicative ‘nature’ of impeachment proceedings has little bearing on [the meaning of Rule 6(e)].” Id. (I have no idea why “nature” is in quotes.).

What DOJ is actually arguing is that while an impeachment may be a “judicial proceeding” as a general matter, the term “judicial proceeding” in Rule 6(e) should be interpreted in a narrower fashion. To use the classic “no vehicles in the park” hypothetical, DOJ contends that an impeachment trial is not the kind of “vehicle” the drafters of the rule had in mind. Whatever the merits of this argument, it is not advanced by denying the judicial nature of an impeachment proceeding (which, as the House points out at pages 21-23 of its opposition brief, is clearly established by the constitutional text, the Federalist Papers, and various judicial decisions).

Nevertheless, DOJ persists. It trivializes the role played by the chief justice at a presidential impeachment trial, contending “the Chief Justice’s role is purely administrative, akin to a Parliamentarian.” DOJ Br. at 28. Notably, it provides no citation for this assertion. (On the bright side, it doesn’t put “Chief Justice” in quotation marks.).

The Framers, however, seemed to have attached rather greater importance to the chief justice’s role. Indeed, the only mention of the chief justice in the Constitution is in the following clause:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

U.S. const. art. I, §3, cl. 6 (emphasis added).

To be sure, it could be argued that the chief justice presides at a presidential impeachment trial for largely symbolic reasons: to highlight the solemnity of the occasion, to remind senators of the importance of their oath, and to avoid the appearance of a conflict of interest that would exist if the vice president (who would be next in line of succession) presided. But even if these were the only reasons, they would underscore rather than contradict the judicial nature of the proceedings.

The chief justice’s actual power at an impeachment trial, moreover, is far greater than DOJ suggests. The Senate impeachment rules give the presiding officer power which goes well beyond the “purely administrative,” including the power to rule in the first instance “on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions.” Senate Impeachment Rule VII. It is true that these rulings are subject to appeal to the full Senate, but the fact that a decision may be overturned on appeal hardly can be said to change its judicial nature. If Chief Justice Roberts chooses to rule on controversial issues, such as whether Hunter Biden can be subpoenaed to testify, he could have an enormous impact on the course of the trial, and it is by no means clear that there would be a determined majority prepared to overrule him on such issues.

It is also noteworthy that some of the chief justice’s rulings may be insulated from review by a simple majority. To the extent he determines that the Senate rules mandate a particular result, he may conclude (as Chief Justice Rehnquist did during the Clinton impeachment trial) that it would take a two-thirds vote to amend or waive the rules in that instance.  While it has been suggested that the Senate majority leader might attempt to invoke the nuclear option to circumvent such a ruling, it is by no means clear that the chief justice is required to abide by a Senate procedure which is itself illegal under the Senate rules.

One can imagine other situations in which the chief justice and the Senate could be at an impasse. Although DOJ correctly notes that as a general matter the Senate retains ultimate authority over both the procedural rules and substantive standards governing an impeachment trial, DOJ Br. at 28, this proposition is not necessarily without limit. Cf. Nixon v. United States, 506 U.S. 224, 253-54 (1993) (Souter, J., concurring) (hypothesizing situation in which the Senate might act in a manner “so far beyond the scope of its constitutional authority” as to require judicial intervention, such as by deciding impeachment trials by coin toss). At the end of the day, the chief justice is not the Senate parliamentarian, but an independent constitutional officer who must carry out his responsibilities in accordance with his understanding of his own constitutional oath.

This brings us to the most confounding part of DOJ’s assertions about the chief justice’s role. Not only are they inaccurate and largely irrelevant, but they are beyond the scope of DOJ’s own authority. There are only two constitutional actors that matter in defining the proper role of the chief justice in a presidential impeachment trial, and neither of them is the Department of Justice (or, for that matter, the D.C. Circuit).

DOJ’s willingness to opine on this issue exposes the hollowness of another argument it makes in its brief. It contends that the term “judicial  proceeding” in Rule 6(e) should be narrowly construed in order to avoid intruding into Congress’s sole power of impeachment. See DOJ Br. at 49-50. The logic is that allowing the House (or Senate) to apply for access to grand jury material puts the court in the position about making judgments regarding the congressional need for information “in the context of a proceeding exclusively committed under the Constitution to the legislative branch.” Id. at 50.

It seems counterintuitive, to say the least, to suggest the judiciary should respect Congress’s power of impeachment by denying it access to information that would be accessible in connection with far less significant matters. See In re Report & Recommendation of June 5, 1972, 370 F. Supp. 1219, 1230 (D.D.C. 1974) (Sirica, J.) (“it seems incredible that grand jury matters should lawfully be available to disbarment committees and police disciplinary investigations and yet be unavailable to the House of Representatives in a proceeding of so great import as an impeachment investigation”). DOJ claims there would be “constitutional hazards” in interpreting Rule 6(e) to allow congressional access to grand jury material in connection with impeachment proceedings, but the opposite would seem to be true. The constitutional hazards lie in interpreting the rule so as to absolutely bar congressional access, no matter how critical the requested material is to the performance of this vital constitutional function. See House Br. at 15 (“The Court would create, rather than avoid, constitutional problems by denying Congress the right to obtain grand jury material to which every other litigant is entitled.”).

DOJ’s inconsistency on this score is evidenced by its acknowledgment “[t]here is no doubt that a federal court could preside . . . over a federal criminal prosecution of a witness for perjury in an impeachment hearing.” DOJ Br. at 48. But such a prosecution would require making determinations about the materiality of the alleged perjury to the impeachment trial, precisely the same type of determination DOJ claims would present “constitutional hazards” in connection with Rule 6(e).

DOJ’s attempt to portray itself as a guardian of constitutional propriety here border on the laughable. Far from respecting the constitutional process of impeachment, it is pulling out all the stops in an effort to obstruct it. In belittling the chief justice’s role in an impeachment trial, it is not only wrong, it is entirely out of its lane.

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