Chief Justice John Roberts will swear in Joe Biden on January 20 as the next president of the United States. But that historic ritual on the West Front of the US Capitol will not free Roberts of Donald Trump.
The nation’s 17th chief justice, who has tried to shield the Supreme Court from the politics of the day, seems destined to be entangled with the destructive 45th president for years to come.
Most immediate, there is some chance Roberts would have the unwelcome task of overseeing – for the second time – a Senate impeachment trial of Trump. This one based on the deadly insurrection Trump instigated at the Capitol on January 6.
Even if that Senate possibility does not materialize for Roberts because of timing or other factors, the chief justice and judicial colleagues could face a barrage of Trump litigation caused by his final actions in office and lingering cases dating to his 2016 campaign.
The President has asked White House lawyers about his power to pardon himself, CNN reported last week. The constitutionality of such action is untested and would likely end up in the courts. Trump has already expansively invoked his power to pardon and grant clemency, notably on criminals who have been loyal to him.
Separately, multiple Trump lawsuits, some tied to his financial records and alleged misconduct before he was elected in 2016, are underway in lower courts and could culminate with the nine justices.
Roberts has avoided confronting the reckless president, and only once, in November 2018, provided any off-bench remark rebuking Trump, after the President criticized a jurist as an “Obama judge.” Roberts countered with a statement that began, “we do not have Obama judges or Trump judges” and that was intended to assert judicial integrity.
In recent weeks, Roberts steered the ideologically divided court through thorny post-November 3 election litigation without major controversy. On December 11, in their last significant action, the justices unanimously spurned a meritless lawsuit brought by the Texas attorney general and heartily endorsed by Trump.
That Supreme Court order effectively separated the nine justices, six of whom were appointed by Republicans (three by Trump), from other Republicans in Washington voicing baseless claims about voter fraud and a “stolen” election.
The next day, Trump said in a series of tweets: “This is a great and disgraceful miscarriage of justice. The people of the United States were cheated, and our Country disgraced.”
Trump may be banned from Twitter, but in the legal realm, Roberts and the high court will not soon escape his clutch.
Possible impeachment trial
Last Wednesday, pro-Trump supporters stormed the Capitol, which sits directly across from the columned Supreme Court building, leading to five deaths, several injuries and serious damage to the domed symbol of US democracy. The assault occurred as Congress began counting the Electoral College votes for president and has triggered efforts to drive Trump, who falsely asserts he won over Biden, from office.
Members of Congress have been pressuring Vice President Mike Pence and the Cabinet to invoke the 25th Amendment to remove the President. House Democrats led by Speaker Nancy Pelosi plan to introduce an impeachment resolution this week. Senate Majority Leader Mitch McConnell has said a Senate trial would not begin while Trump is president because senators are not scheduled to return to regular session before January 19.
The US Constitution dictates that the Senate has the sole power to try all impeachments after House action, and, “When the President of the United States is tried the Chief Justice shall preside.” The implication is that the chief justice oversees trials only for sitting presidents. Senate Majority Leader McConnell said in a memo to senators outlining a possible trial timeline that whether Roberts would preside “after President Trump ceases to be President on January 20 … is unclear.”
“I think Vice President (Kamala) Harris would preside,” said University of North Carolina law professor Michael Gerhardt, an expert on impeachment, referring to the vice president’s role as president of the Senate. “The chief justice presides when sitting presidents are impeached, and Donald Trump would no longer be president.”
‘Under happier circumstances’
Roberts and other eight justices will return to scheduled oral arguments on Monday and hear cases this month through January 19.
Separately, they are still weighing an October request from Trump lawyers trying to prevent the Manhattan district attorney from obtaining his tax returns. That case stems from an investigation tied partly to hush-money payments in 2016 to cover up alleged Trump affairs. (Trump has denied the affairs.) A federal appellate court in October rejected Trump’s arguments that a state grand jury subpoena to his accounting firm for his financial records was overly broad and issued in bad faith.
The Roberts Court has in some protracted Trump litigation taken as little action as possible, perhaps waiting for his tenure to expire and elements of cases to become moot.
Based on the past 10 days, it is difficult to believe that the next 10 would pass quietly. All expectations over the past year have been crushed.
When Roberts, in fact, finished presiding over Trump’s impeachment trial in 2020, he told senators he looked forward to meeting again “under happier circumstances.”
It may be a while, however, before the circumstances improve.
