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Elizabeth Warren Makes Chief Justice John Roberts Question His Own Legitimacy

Senators at President Donald Trump‘s impeachment trial have used the question-and-answer portion of the trial, which took place Wednesday and Thursday, to reveal their own partisan leanings and often subtle clues about their decision-making process—if, of course, they were even able to ask them at all. But during Thursday’s trial session, Senator Elizabeth Warren‘s question focused in on a new target: Chief Justice John Roberts, the man presiding over the historic trial. Warren submitted a question on the Senate floor that directly called the chief justice’s own legitimacy into question—and thanks to Senate rules that prevent senators from reading their own questions aloud, Roberts himself had to be the one to read it.

“At a time when large majorities of Americans have lost faith in government, does the fact that the Chief Justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the Chief Justice, the Supreme Court, and the Constitution?” Roberts read aloud, seemingly pursing his lips at Warren’s maneuver to get the Supreme Court justice to inadvertently criticize himself. But Roberts didn’t stay in the spotlight for long. In his response, impeachment manager Rep. Adam Schiff refused to put the blame on Roberts, saying that he “would not say that it contributes to a loss of confidence in the chief justice,” and that Roberts “has presided admirably.”

Instead, Schiff painted the trial’s potential failure to call witnesses as a failure of the Senate and American democracy more broadly, saying that the onus was on “all of us.” “Yes we are a more than fallible democracy and we don’t always live up to our ideals. But when we have a president that demonstrates corruption of his office . . . unlike other countries, there’s a remedy,” Schiff said. “I don’t think a trial without witnesses reflects adversely on the chief justice; I do think it reflects adversely on us. I think it diminishes the power of this example to the rest of the world.” The Democratic lawmaker noted that “this will be the first trial in America that the defendant says at the beginning of the trial that if the prosecution’s case is so good, then why don’t they prove it without any witnesses.” “That’s not a model we can hold up with pride to the rest of the world,” Schiff said.

Schiff did agree with Warren that a failure to call witnesses would damage the public’s faith in American government, however, saying that the move “will feed cynicism, about this institution, that we may disagree on the president’s conduct or not, but we can’t even get a fair trial. We can’t even get a fair shake for the American people.” The lawmaker pointed to the Senate’s potential refusal to even call John Bolton to testify, exclaiming, “God forbid we should hear what a relevant witness has to say.” “Hear no evil. That cannot reflect well on any of us,” Schiff added. The lawmaker closed by emphasizing his belief that “right matters. I think a fair trial matters.” “And yes senator,” Schiff told Warren, “if they don’t get that fair trial, it will just further a cynicism that is corrosive to this institution and to our democracy.”

Warren’s question once again highlighted Democrats’ argument for the importance of witnesses during the impeachment trial, even if Trump will ultimately still be acquitted at the end. But it also appeared designed to put pressure on Roberts and highlight his own role in the impeachment trial—the day before the chief justice potentially provides the deciding vote on whether to call witnesses. Should only three Republican senators defect and vote in favor of witnesses—which still remains a distinct possibility—the vote would result in a 50-50 split, leaving it up to Roberts to decide if he’ll weigh in and break the tie either way. And while the chief justice has yet to make clear how his potential decision would unfold, Democratic senators have speculated that he could be feeling the same pressure that Warren’s question suggests. “I don’t know what John Roberts is thinking, but it’s got to bother him that one side is saying no witnesses, no evidence,” Democratic Sen. Sherrod Brown told reporters Thursday morning, noting that he’s “not a lawyer, but I understand you’ve got prosecution, you’ve got the defense, and you have witnesses, testimony and evidence.” “That this is so violative of that, it’s got to unnerve the Supreme Court chief justice,” Brown said.

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