Donald Trump no longer will be president as of noon on January 20, 2021, when Joe Biden is sworn in. At some point after that, possibly just hours, the Senate under control of Democrats will initiate an impeachment trial of the then-former president.

As detailed in a prior post, there is no constitutional basis for the Senate trying a former president, Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office.

But there is one question about a trial I had not thought about, and was raised in a column by Prof. Jonathan Turley.

First, Turley starts by pointing to the weakness of the case against Trump, then goes on to reject the notion that a former president can be tried by the Senate:

Article I [sic – II], Section 4, of the Constitution states that the sole purpose of an impeachment trial is whether “the president, vice president and all civil officers of the United States, shall be removed from office.” While the Senate can later add a disqualification from holding federal office again, that is only after removal is decided — because it is a question of the penalty, not the purpose of the proceeding.

The Constitution refers to a present-tense status of “the president.” That status is key to other provisions bestowing official powers and privileges, which do not linger after leaving office. No one would argue that Trump could continue to exercise those powers once President-elect Biden is sworn in. Yet a Senate trial would insist that, while Trump has no continuing powers, he remains subject to continued penalties tied to the office. Moreover, the stated purpose of the impeachment trial is whether a president “shall be removed.” Thus, the only person constitutionally subject to an impeachment trial would be the sitting president, Joe Biden.

He then debunks a couple of the historical “precedents” many people point to, and raises the issue of whether Chief Justice John Roberts even would preside:

It is unclear, for example, if Chief Justice John Roberts would be called upon to preside. After all, the Constitution stipulates that when “the President of the United States is tried, the Chief Justice shall preside” — but the president will be Biden, not Trump.

Here is the wording of Article 1, Section 3, provides (emphasis added):

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Assuming an ex-President can be tried as if “the President” for impeachment purposes, then the Constitution requires that “the Chief Justice shall preside.”

Those who believe there is no restriction on putting an ex-President on trial in the Senate say of course Roberts can preside, playing word games that both allow an ex-President to be treated as a President for the purpose of justifying trial, but treat him as an ex-President for the purpose of Roberts presiding:

On the first theory, the Chief Justice need not preside. An ex-President being tried is not the President, and the Senate’s jurisdiction does not depend on his former official status.

Roll Call presents the problem this way:

There’s no clear answer to whether Chief Justice John G. Roberts Jr. or a Democrat would preside over a second impeachment trial for President Donald Trump, which could determine how the nation perceives the fairness of the proceedings….

Constitutional and congressional experts have no certain answer.

The situation has never come up before — like so many other legal issues in the Trump era — and the nation’s founding document is silent about it.

“I really have no idea what is correct, but my instinct is that this is totally novel, so the current actors will likely set the precedent,” said Matt Glassman, a senior fellow at the Government Affairs Institute at Georgetown University….

“Whether the Chief Justice would actually preside over the trial after President Trump ceases to be President on January 20, however, is unclear,” McConnell wrote.

The answer could come from Roberts and his reading of his role in the Constitution, or whether he wanted to honor the invitation anyway. Or, the Senate could agree on something different.

On that last point, how could the Senate agree on something else? The Constitution is clear that “the Chief Justice shall preside” at an impeachment trial.

This gets to the issue of whether “shall” means “shall” or just means can if he wants to.

The arguments in favor of Roberts presiding are mostly political arguments, again as summarized by Roll Call:

Jamal Greene, a Columbia University law professor, said he would argue that the chief justice should still preside.

“An ex-president is not an officer of the United States, and so the trial would rest on a legal fiction,” Greene tweeted. “Might as well keep the fiction going. Also less partisan that way.”

Steve Vladeck, a law professor at the University of Texas, said the question should be whether Trump was president at the time he was impeached.

“Here, he was, so Roberts presides,” Vladeck tweeted. “If nothing else, it’s an object lesson in how ambiguous so much of the Constitution is (and always has been).”

So it may be up to Chief Justice Roberts. He has been a stickler for the limited role of the federal courts, and the Supreme Court in particular, as was witnessed in the Order rejecting standing for Texas in its suit against several other states regarding the election. He also took a very circumscribed view of his own power at Trump’s 2020 Senate trial:

Will Roberts preside? If he does, he needs to address this constitutional issue. After all, he is Mr. Nitpicky on not expanding the role of Supreme Court Justices.

If Roberts refuses to preside over the trial of an ex-President as beyond the Chief Justice’s jurisdiction under the Constitution — as he should — then that will render the “impeachment” trial not an “impeachment” trial at all.

[Featured Image: Chief Justice at January 2020 Senate impeachment trial.]


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