It Won’t Be Roberts’ Rules

Is a judge really a judge if 51% of the jury can overrule them? Will the impeachment trial in the Senate really be a trial? With those questions in mind let’s explore.  

If things have gone the way I anticipate at the time of this writing President Trump has been impeached and the matter is moving to the Senate next month. The basic rules are that after impeachment in the House the trial phase moves to the Senate where the 100 Senators act as the jury. Unlike in normal operations the Vice President is not President of the Senate; the Chief Justice of the Supreme Court is the presiding officer. This, of course, gives the appearance of a trial. The Senator/jurors are supposed to weight the evidence in the case and render a verdict. If two-thirds (67) or more vote to remove the President is ousted. Any lesser number and the President remains in office. That is a high bar and in today’s Senate it would necessitate at least 20 Republican Senators to vote to remove Trump.

I know I haven’t spent 10 hours in courtrooms in my life. I am not a lawyer and did not attend law school. Even with that extremely limited experience I know most judges rule the roost in their courtroom! They determine what evidence is admissible and dictate behavior of counsel, witnesses and the gallery. Volumes of law are their guide and only constraint. Their rulings can be appealed but the reality is that upper courts are reluctant to overrule a lower court decision.

Chief Justice John Roberts will be the presiding officer during the impeachment trial but it will be much different than if he were in a regular courtroom as the sitting judge. In the first place the basic rules in force are the rules of the Senate. The specific “ground rules” for this proceeding will have been agree on before commencement by Majority Leader Mitch McConnell and Senate Minority Leader Chuck Schumer.

Now here is the quirk that is the most irregular. Since we are operating under the rules of the Senate not regular laws any ruling Roberts makes can be overridden by a vote of 51 Senators. You read that correctly; a majority of the “jurors” can overrule the judge. With a 53-47 split favoring the Republicans if you assume partisanship (which is a fairly safe assumption these days) the Republicans can render Roberts not superior but superfluous.

Carry that a bit further and Roberts needs 50 votes from the jury to sustain any contested ruling he makes. My understanding of the rules is that Roberts’ ruling will stand in a 50-50 situation since he, not the Vice President, is the presiding officer and therefore is essentially the tie breaking vote.

While I am among the many that have used the indictment-trial metaphor to describe the process in reality the trail is not a trial, the jury is not a jury and the judge is certainly not a judge. There is concern that a fair trial will be conducted. With a 19 vote cushion and the stacked jury effectively making the rulings I like Trump’s chances. The only way I see things changing significantly is if Republican public opinion experiences a drastic change between this writing and “verdict time”.

This article was written well ahead of publishing in order to accommodate my year end hiatus and is the property of Its content may not be used without citing the source. It may not be reproduced without the permission of Larry Marciniak.