If what we hear about the vote for witnesses is true, it’s likely we may have a 50-50 tie. Harry Litman discusses the role that the Chief Justice might play in such a scenario:
In fact, text, structure and history — all the legal tools of the trade — point strongly toward a substantive role at trial for the chief justice.
The Constitution speaks sparingly to the contours of an impeachment trial but specifies unambiguously that the chief justice must “preside.” The Senate rules, which incorporate this command, make no distinction between the chief justice’s role as presiding officer in this context and the vice president’s in all others. There is no apparent reason the presiding officer’s responsibility would include breaking 50-50 ties in one context but not the others.
A presiding officer presides; that means keeping order and moving proceedings along, at least somewhat analogous to the role of a district court judge. The reason the chief justice and not the vice president plays this role in an impeachment of the president alone is that the vice president would have an automatic conflict of interest. If the presiding officer had no substantive role to play, there would be no conflict. It’s precisely because the presiding officer might make substantive decisions that the chief justice must step in.
Finally, the chief justice played a substantive role in both previous impeachment trials of the president. Most notably, Chief Justice Salmon Chase twice broke ties in the Andrew Johnson trial.
For all these reasons, Harvard Law School professor Laurence Tribe told me he “agree[s] strongly that the role is not solely honorific or purely decorative.”AD
There is one glaring way in which Roberts’s duties will be different from his accustomed judicial role: His rulings are not final. In the Wild West world of the Senate as trier, a majority of the body can always impose its will. And all political precedent indicates McConnell would do exactly that if he felt it served the president’s purposes.
But by the same token, if Roberts casts the 51st vote in favor of, for example, the issuance of a subpoena to Bolton, there is no judicial recourse. (Trump could always try, of course, but the courts would swiftly rebuff him.) And in that event, it’s hard to see where and how the McConnell camp would secure 51 votes to overrule Roberts, whose vote carries an extra measure of stature and authority.
So as the trial looms, we should all be counting to three and in particular keeping eyes (and pressure) on Collins, Murkowski and Romney. They have it in their power to serve up important decisions to Roberts, which as things are developing may be the best the Democrats can hope for.
Roberts is the only person in that arena who has a lifetime appointment. He is insulated from the wrath of the Trump cult and he has the responsibility every day of his working life for weighing evidence and arguments and making a decision. This is the easiest ruling he would ever have to make on the merits. Of course the trial should have witnesses.
But I will be stunned if he does it. Beyond stunned. But never say never. And whatever he decides it will be quite a dramatic moment if it comes to that. Close to that moment when the Court announced that they’d put their thumbs on the scale for George W. Bush, proving once and for all that they were a bunch of partisan hacks. I suspect Roberts will remain true to that tradition.