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Politics His role ceremonial so far, Roberts’ views could still impact impeachment trial

22:30  24 january  2020
22:30  24 january  2020 Source:   sfchronicle.com

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As Chief Justice John Roberts presides over President Trump’s impeachment trial and listens as Democrats argue for access to witnesses and evidence, he might be reminded of something he wrote as a law student more than 40 years ago.

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As managing editor of the Harvard Law Review in 1978, Roberts took issue with a recent Supreme Court decision denying a request by San Francisco public television station KQED for access to Alameda County’s Santa Rita Jail in Dublin. The court ruled that access to the jail, and to sites or information controlled by the government, is not protected by the First Amendment.

The ruling “should not be considered as standing for the proposition that there is no First Amendment right of public access to government-controlled institutions,” Roberts wrote. He said constitutional standards could be defined for “limiting the right of access within workable bounds” in such cases.

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The article was unearthed recently by William Bennett Turner, who represented KQED in the 1978 case. Now a lecturer in media studies at UC Berkeley, Turner was then teaching at Harvard Law School, though Roberts was not one of his students.

“It would be nice if he could recapture his enthusiasm for the public’s right to know,” Turner said. “He’s got an opportunity in presiding over impeachment” and in Supreme Court cases that also involve Trump.

Roberts has played a largely ceremonial role in the Senate impeachment trial, which began Tuesday. He intervened briefly to admonish representatives of both sides to “remember where you are” after each accused the other of lying.

Later in the session, Senate Republicans, by a party line 53-47 vote, defeated a Democratic proposal to allow Roberts, rather than the Senate majority, to decide whether to subpoena witnesses and documents.

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But the issue may still wind up in Roberts’ lap. After opening arguments by both sides conclude next week, the Senate is scheduled to vote on whether to call witnesses, which ones to call and whether they should testify in public — particularly former national security adviser John Bolton, a critic of Trump’s dealings with Ukrainian leader Volodymyr Zelensky that led to the House impeachment vote.

Administration officials previously indicated that Bolton, if called as a witness, would have to testify behind closed doors. Trump said Wednesday that Bolton should be barred from testifying because of his knowledge of state secrets. Democrats would likely challenge any such restrictions before Roberts, whose ruling — if he chose to issue one — would require a Senate majority vote to overturn.

If Republican leaders “were to get too far out of bounds — for example, refusing to allow the full Senate to consider evidence that is plainly relevant or attempting to introduce evidence that plainly has no relevance at all — the chief justice is there to make judge-like rulings,” said Rory Little, a law professor at UC Hastings in San Francisco and a former Supreme Court law clerk.

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Disputes over witnesses could also reach Roberts’ court. A federal appeals court is considering the Trump administration’s attempt to prevent a House committee from questioning former White House Counsel Don McGahn about Trump’s alleged interference with Special Counsel Robert Mueller’s investigation of Russian involvement in the 2016 presidential election, an issue that could lead to further impeachment charges.

The Supreme Court is also scheduled to hear arguments in March on whether House committees and Manhattan prosecutors can obtain tax records and other financial documents that the president has refused to disclose.

The chief justice presides over a court with a 5-4 conservative majority. But Roberts occasionally changes sides and votes with the more liberal justices, as he did in the 2012 ruling that upheld most of President Barack Obama’s health care law.

And as Turner, the Berkeley law professor, pointed out, Roberts told a law school audience in Nashville last year that “I’m probably the most aggressive defender of the First Amendment” on the court. “Most people might think that doesn’t quite fit in with my jurisprudence in other areas,” he said. “People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.”

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He didn’t convince Erwin Chemerinsky, the UC Berkeley law school dean, who has argued several cases in Roberts’ court.

“I am skeptical that he is the biggest free-speech defender on the court,” Chemerinsky said when shown Roberts’ comments. “I also don’t know whether his views from 40 years ago in a different context matter much here.”

He cited Roberts’ vote with a 5-4 majority in 2006 that found no First Amendment protections for government employees speaking on workplace issues, and his 5-3 ruling in 2007 that upheld the suspension of a high school student for carrying a banner that read “Bong Hits 4 Jesus” at an off-campus event.

Roberts’ court has supported free expression in other cases, such as the 8-1 ruling in 2010 that overturned a federal law banning “animal cruelty” videos, and an 8-1 ruling in 2011 striking down California’s ban on the sale of violent video games to minors.

The court also cited First Amendment rights in two of its most important rulings of the past decade: the 2010 Citizens United decision allowing unlimited corporate spending in elections, and the 2018 ruling that allowed nonunion government employees to refuse to pay fees to unions for the costs of representing them at the bargaining table.

Commentators have noted that the court showed more sympathy for the free-speech claims of corporations and nonunion members than for similar claims by a left-leaning nonprofit that proposed to offer human-rights training to two groups on the U.S. terror list. Roberts’ 6-3 ruling in 2010 allowed the nonprofit to be criminally prosecuted.

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But Democrats with few other options in the impeachment trial might have some hope of redress from a justice who publicly describes himself as a free-speech advocate.

And Roberts could play a crucial role if the Senate deadlocks.

When senators are evenly divided, the Constitution says the vice president, as presiding officer, can cast the tie-breaking vote, an option that has been used 269 times in history, according to Senate records.

The Constitution designates the chief justice as the presiding officer in presidential impeachment trials — which means, according to Joel Paul, a constitutional law professor at UC Hastings, that Roberts could cast the decisive vote if the Senate were to split 50-50 on calling a witness or taking testimony in public.

Roberts is “very much of an institutionalist, who is likely to defer to the Senate in the way in which the trial is being conducted,” Paul said. But in a 50-50 vote, he said, the chief justice “might be forced to take a position,” and “I think his inclination would be to vote in favor of public access.”

A previous version of this story misstated William Bennett Turner’s position at UC Berkeley. He is a lecturer in media studies.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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