United States Supreme Court Chief Justice John Roberts' refusal to preside over this week's Senate impeachment trial is turning out to have been a huge disservice to the nation.
Had he assumed that role, America could have been spared hour-after-hour of video "evidence" of rioters storming the Capitol building, and an ad nauseam replay of former President Trump's tweets and speeches.
Late last month Roberts announced that he had no interest in presiding over what has become a free-for-all kangaroo court, bearing as little similarity to a legal proceeding as Jerry Lewis had to opera singing.
After choosing not to participate, the Supreme Court declined any further comment to the press.
Roberts certainly had every right to refuse.
The Constitution provides that the chief justice shall preside over any impeachment trial of the president, and as of January 20, 2021 that person is Joe Biden.
But events would have changed dramatically if Roberts had only agreed to take on that role. It could have been over before it had even started.
All he would have had to do was agree to preside, adding that before the actual trial got underway, he would entertain motions — beginning with those from the defense.
That would have been a clear invitation to Trump's lawyers to file a motion for dismissal, on the basis that (a), impeachment in this case is unconstitutional, and (b), the House impeachment managers failed to claim that Trump met the elements of "treason, bribery, or other high crimes or misdemeanors" necessary to impeach.
On the first issue, Article I, Section 3, Clause 7 of the Constitution provides that "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States."
The Senate clearly can't remove Trump from office. His term ended as of noon, January 20. The Democratic Party, however, wants to prevent him from running in 2024 — whether he has an interest in seeking a second term or not.
But the above provision clearly states that judgment upon conviction shall be "removal and disqualification," indicating that the framers intended both removal and disqualification to serve any future office as the penalty.
Had it said "or," then it could have been either removal or disqualification or both.
That argument is bolstered further by Article II, Section 4, which provides that "The President … of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
As to the second issue — whether the House impeachment managers had alleged an actionable offense — former Florida state prosecutor and First Amendment scholar KrisAnne Hall concluded they had not in a well-reasoned opinion.
Brandenburg v. Ohio, 395 U.S. 444 (1969), developed a two-prong test for incitement, and the former president failed to meet either prong.
That test provides:
- The speech is "directed to inciting or producing imminent lawless action."
- The speech is "likely to incite or produce such action."
Hall opined that a clear reading of the transcript of Trump's January 6 speech indicates that Trump met neither prong, and concluded that "because the criminal elements of incitement are not met, Trump cannot, under the law and the Constitution, be convicted for incitement by the Senate at trial."
The chief justice's reluctance to get involved in what is essentially a political dispute, as opposed to a legal one, is understandable — even if it has legal implications.
The last time the Supreme Court did that was in 2001, when it decided Bush v. Gore, 531 U.S. 98 (2000), and handed George W. Bush the keys to the White House.
The public, one could argue, resented the court deciding the election.
Five years after that decision, the Georgetown University Law Center found that of the nation's most widely circulated newspapers, 18 editorials criticized the decision, while only six voiced approval.
The Supreme Court had the opportunity to alter the result of the 2020 election when the State of Texas filed a lawsuit against four other states because of their failure to meet constitutional standards when administering their own elections.
The court declined to hear the case, claiming lack of jurisdiction, with Justices Clarence Thomas and Samuel Alito dissenting.
Accordingly, the die was cast.
But had Roberts mustered the fortitude Monday to make a one-hour appearance in the Senate chamber, this clown show would have been over — and maybe America could have begun to heal and get back to work.
In 1956, the future President John F. Kennedy wrote, "Profiles in Courage."
Had he been alive today and written a sequel, Roberts' name would have been absent.
Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter, who can often be found honing his skills at the range. Read Dorstewitz's Reports — More Here.
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