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By Jana Kalyan Das

With the acquittal of Donald J. Trump by the senate the impeachment trial saga of the American President has ended. In the aftermath, however, several uncomfortable questions continue to linger. Was it the intention of the founding fathers to completely isolate the Chief Justice of the Supreme Court from any meaningful participation, as presiding officer, in the impeachment trial of the president?

Was it further the intention of the founding fathers of the American constitution to make the Chief Justice of the Supreme Court neither a driver, nor a brake but only, at best, a spare wheel who can exercise a casting vote in the event of a tie?

American political and constitutional history shows that impeachment trials of presidents have been seldom. President Trump’s impeachment trial was only the third, the two others being those of Andrew Johnson and Bill Clinton. All trials resulted in acquittal.The Indian Constitution, unlike the American Constitution mercifully, does not contain any provision for trial of our president by the Rajya Sabha for impeachment and removal from office.

The American Constitution specifies only four provisions about the Senate impeachment trial i.e.:(1) The Senate “shall have the sole power to try all impeachments”, (2) when sitting as a court of impeachment, senators “shall be on oath or affirmation”, (3) conviction of any accused officer requires “concurrence of two thirds of the members present”; and (4) when the president is the accused, “the Chief Justice shall preside.”

The framers of the US Constitution therefore vested the senate with the sole power to try all impeachments. Possibly,they believed that senators would be better educated, more virtuous, more wise, more high minded than members of the House of Representatives for the responsible task and would not be swayed by partisan considerations. Study of American Constitutional History further suggests that the views of Alexander Hamilton ascontained in the Federalist paper no.65 was the guiding spirit behind such a conclusion. It would therefore, be profitable to quote the words of Alexander Hamilton and his views  on the subject of impeachment as well as the choice  of senate as the forum for the same from the Federalist paper No. 65 –“Where else other  than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENT ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives.

A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquility. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.

These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender.

After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial.

The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?

Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable?

To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.

Over the years however, with the coming into force of the Senate Standing Rules relating to impeachment there has been a complete dilution of all judicial character in the impeachment proceedings. The Chief Justice as the presiding officer originally was excepted by the founding fathers to at least give his views on matters of procedure i.e. issuing summons (subpoenas) to witnesses, the production of witnesses and questions relating to admissibility of evidence. The Impeachment Rules theoretically  therefore, gave the presiding officer, i.e. the Chief Justice, considerable power, which included the power to issue “orders, mandates, writs, and precepts” (Rule V), to “direct all the  forms of proceedings while the Senate is sitting for the purpose of trying  any impeachment’ (Rule VII), and to “rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence’(Rule VII).

However, while exercising such powersthe authority of the Chief Justice has come to be subjected to the absolute caveat and critical limitation that the presiding officer may only act in accordance with the will of the Senate. For example, if the presiding officer makes a ruling on the relevancy of evidence proffered by either the House managers or counsel for the president, that ruling can be questioned by any senator and overruled by a simple majority vote (Rule VII). The senators are hence, the final arbiter on every procedural or evidentiary question.

All Chief Justices of the Supreme Court therefore, while acting as presiding officers in an impeachment trial of the President have consciously chosen to steer clear of all political controversies to avoid any humiliating experience and have played safe by referring any and every issue of law and procedure to vote by the senators rather than expressing their individual views, opinion and findings on the same.

The extent of the helplessness of the Chief Justice in an impeachment trial was best illustrated during the impeachment trial of President Bill Clinton in 1999 when Chief Justice Rehnquist asked the senate sergeant how to turn on his micro phone and was replied ‘you don’t.  ‘We control that’, thereby leading finally to the chief justice lamenting ‘I did nothing in particular. And did it quite well’.

It is therefore now,increasingly felt that the hopes and aspirations of the founding fathers of the US Constitutions like Alexander Hamilton, Thomas Jefferson and John Jay (the first Chief Justice of the Supreme Court of USA) have been frustratedby the Impeachment Standing Rules framed by the senate and further amended from time to time to ensure impotency of the presiding officer.

The Chief Justice of the Supreme Court in the eyes of the constitution makers was made the presiding  officer to avoid a potential and possible conflict of interest, in as much as, allowing the vice-president to preside over impeachment trial of the president would appear to be politically and ethically inappropriate. The vice-president under the constitutional scheme presides over all impeachment trials except the trial of the president. The original intention was never to make him a mute spectator and be on the pleasures of doing nothing.

What is now most disturbing is the complete absence of the semblance of any principle of ‘fair procedure’ or ‘due process’ in the proceedings as warranted under the rule of law. It is no doubt true that in all democracies with political parties, the rule of ‘politics in command’ prevails in the final reckoning. Nevertheless, neither Hamilton nor Jefferson nor John Jay  who wrote the Federalist Papers had ever visualized the senators to abandon all cannons of fair procedure and due process which they felt could only be  ensured by giving the Chief Justice a more assertive and activist role, at least in matters of procedure.

Senators of a mature democracy like the USA have a solemn duty to educate and inform the people of the American Nation as well as the world at large about every aspect touching upon a significant issue like impeachment of the president. Putting the Chief Justice as the presiding officer in an impeachment trial was always intended to inject a sense of discipline and decorum amongst senators to carry out their plenary duties i.e. meaningful discussions and deliberations on the various nuances of the grounds of impeachment such as ‘high crimes and misdemeanor’ etc. and to have the benefit of the wisdom and sagacity of a trained judicial mind like that of the Chief Justice of the Supreme Court.

The final authority of the senate in all matters of impeachment was in any event non-negotiable and could not be interfered with by any other branch of the government.The decisions of the senate has also been held to be beyond judicial review. In the case of Nixon Vs. United States (1993), when Nixon a Federal Judge, had challenged the collection of evidence by the senate trial committee, the US Supreme Court held that every decision of the senate in an impeachment trial is a ‘political question’ and is therefore, non-justiciable.

Discerning students of law and politics therefore, have failed to understand that when the constitution of USA has remained silent about the role of the Chief Justice as the presiding officer in an impeachment trial of the president   why the Standing Rules of the senate relating to impeachment  trial of the president has not been amended  so far to at least give the Chief Justice  of the Supreme Court, as the presiding officer,some elbow room to maneuver and give the benefits of his views and opinion to the senators to  enable them to arrive at a meaningful determination of the issue. The need to amend the Standing Rules of the senate relating to impeachment of the president has become more pronounced now with Chief Justice John Roberts, the presiding officer of the Trump trial, stating that there is no clarity and certainty as to whether the Chief Justice in an impeachment trial of the president can exercise a casting vote in the event of a tie.

The writer is a senior advocate practising in Supreme Court of India.

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