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Impeachment Problem? Chief Justice Roberts May Not Have Constitutional Authority To Preside At Trial Of FORMER President

Impeachment Problem? Chief Justice Roberts May Not Have Constitutional Authority To Preside At Trial Of FORMER President

The Constitution says “[w]hen the President of the United States is tried, the Chief Justice shall preside” — but Trump will not be “the President” during the upcoming trial. If Roberts refuses to preside at upcoming Senate trial as beyond his constitutional authority — as he should — that will render the “impeachment” trial not an “impeachment” trial at all.

https://youtu.be/geepb1ggJ5A

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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Comments

They’re going to do it anyway and dare the SCOTUS to do something about it.

    MattMusson in reply to Olinser. | January 16, 2021 at 8:07 pm

    The Chief Justice did back flips and intimidated Jurists to keep from having to exercise his constitutionally proscribed duties. So, clearly the Constitution does not mean Jack to Roberts.

      henrybowman in reply to MattMusson. | January 16, 2021 at 8:49 pm

      Right. This entire article is written as if there were even a chance of anything ever being more important to John Roberts to do the constitutional thing, rather than the thing that most convenient to his career.

      RoyalWulff55 in reply to MattMusson. | January 17, 2021 at 4:00 am

      Especially given that he has been effectively blackmailed.

    mrtoad21 in reply to Olinser. | January 17, 2021 at 7:52 am

    They’ll just make a new law, pass it through “unanimous consent” or some other super secret legislative process. Then they’ll stick it on Quid’s desk and wait for Dr Jill, Goddess of the Harvest or whoever is going to sign these things for Quid, to sign these things for Quid.

    And it will all be “for the children”.

    Then, we’ll all receive fundraising letters from Ronna Romney-McDaniel (who will have recently re-added the Romney to her name) pleading for funds because we’re all doomed…DOOOMED!! if we don’t re-elect the RINOs.

    clayusmcret in reply to Olinser. | January 17, 2021 at 11:26 am

    Roberts won’t refuse. It’ll round out the legacy he’s been working so hard to create.

    Blackgriffin in reply to Olinser. | January 17, 2021 at 1:13 pm

    The SCOTUS will help them do it.

D’oh!

A real $hitshow. Our Founders would be appalled.

    artichoke in reply to MAJack. | January 17, 2021 at 2:16 am

    Our Founders would say we should have shot the bastards and gotten new bastards several times already. All kinds of exercising of the Constitution happened in its early days, but all our lives has been very tame in that regard until now.

    It seems maybe more frightening now because we’re the world’s leading power with all the space-age weapons etc. But it was probably frightening then too.

No way they get 67 votes to impeach in any event.

People miss the entire point of impeachment and conviction of a sitting President. It is not about adjudicating guilt or innocence. There is NO significant penalty for conviction following impeachment, except removal from office. The person impeached is not imprisoned or fined, merely removed from office.

I would argue that once the official is out of office, the impeachment is moot. If it was based upon legitimate criminal acts, which were a violation of law, then criminal charges can be proffered and, if accepted, the official, sitting or not, can be tried, criminally. If impeachment and trial were for the purposes of establishing criminal guilt [high crimes and misdemeanors], acquittal would activate double jeopardy. And, it does not.

    Milhouse in reply to Mac45. | January 16, 2021 at 8:20 pm

    Except that that’s not how people viewed it in 1788 when the constitution was written, and when it was common to impeach former officers. Nor is it how former president J. Q. Adams viewed it a half-century later, when he said he could be impeached for the rest of his life. Nor is it how the Congress itself viewed it a half century after that, when the house impeached and the senate tried William Belknap. (The senate voted 37-29 that it had jurisdiction.)

      Mac45 in reply to Milhouse. | January 16, 2021 at 10:16 pm

      Impeachment IS for life. Just as an indictment is for life. But, there is a difference between impeachment and indictment and conviction. As to the Congress voting itself powers and authority, which is may not have, this is pretty gall dern common, in this country. How many time has the SCOTUS ruled that the Congress did not have the Constitutional authority it exercised. What is important, is that the courts have not ruled that a former official can be impeached and tried {without a trial, an impeachment is irrelevant}.

      Now, Belknap was a defining case. However, even though there was strong evidence to support conviction, too many of the Senators did not think that the Senate had the authority to try an official who was not a sitting official and voted against convicting Belknap. Belknap had been indicted, in NY, for the same actions, prior to his Senate trial. The charges were politically squashed. If the state court had convicted, double jeopardy would not have applied, as the cases were in different jurisdictions.

      So, IMHO, whether the Congress has the authority to impeach and/or try an official who is no longer in office, is very much undecided. And, a strong case can be made that impeachment is a political means of removing an official from office for violating the trust of the American people. Hence the additional condition of barring the convicted individual from holding future government office.

        Mac45 in reply to Mac45. | January 16, 2021 at 10:27 pm

        Correction:

        Belknap as indicted by the USAG, not the state of NY. Therefor, if the charges had gone to trial, we might have found out if double jeopardy applied. But, that did not happen. So, here we are.

        Milhouse in reply to Mac45. | January 17, 2021 at 2:24 am

        Impeachment IS for life. Just as an indictment is for life.

        Mac, Adams said that as long as he lived he could still be impeached. That was how he understood it, and his father was one of the framers.

          alaskabob in reply to Milhouse. | January 17, 2021 at 1:05 pm

          So what Presidents say is cannon. Hence the Jefferson letter on separation of state and religion becomes de facto law. When K. Harris says she is President for Life…it is.

          Mac45 in reply to Milhouse. | January 17, 2021 at 1:12 pm

          I always love it when legal arguments are based upon the intent of the body drafting or passing legislation. This usually indicates that the argument is not buttressed by the actual wording of the legal document.

          Now, I based my argument that the “intent” of the impeachment clause was for the purpose of removing a government official, from office, for having committed specific high crimes and misdemeanors, on the text of the Constitution.. Here is the original wording of Article II Section 4:

          “Section. 4.

          The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

          Note that it only species REMOVAL from office for impeachment for and conviction of the specified crimes.

          Article I Section 3 reads as follows:

          “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.

          Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

          Note the wording here. Judgement shall NOT extend further than removal from office AND disqualification to hold future office, et al. And, also,, note that it specifies that the party CONVICTED, not merely impeached, shall be liable and subject to criminal indictment.

          So, from these two articles, it certainly appears that impeachment and conviction are only for the purpose of removing an official from public office AND disqualifying him from holding future office. However, the AND seems to require removal from office, before a person can be disqualified from holding future high office. Once removed, through conviction, the official can be subject to further criminal action, through indictment for violation of the law.

          So, once again, IMHO, impeachment was only to be used for the purpose of removing an official from office. Also, disqualification from holding future high office seems to require that the official impeached and convicted actually be in office, at the time of his conviction. Once out of office, the former official can not then be “removed” from office, a seeming prerequisite for future disqualification. And, as conviction, by the Senate, is specifically cited for future indictment and trial for criminal acts which led to impeachment, this would seem to leave double jeopardy very much on thee table, should the Senate fail to convict on those charges.

      sfharding in reply to Milhouse. | January 17, 2021 at 1:55 am

      People have as many “views” and opinions of things as there are people. What is relevant and operative is the actual language of the Constitution, agreed upon and formalized as written. The Constitution is explicit and unambiguous that impeachment is applicable solely for the removal of a civil officeholder from office. Period. J.Q. Adams “viewpoint” notwithstanding.

        Milhouse in reply to sfharding. | January 17, 2021 at 2:23 am

        Both J. Q. Adams and the congress that impeached and tried Belknap were very familiar with the constitution, more famliar than you, and they were closer to the time when its public meaning matters. And they both took the view that it does allow impeachment of former officials. Also, you cannot deny that in 1788 the term did apply to former officials, because in the UK that was what was happening.

      countrylaw in reply to Milhouse. | January 17, 2021 at 5:49 am

      Your puerile and myopic faux legal analysis does not address the the prohibition and long history prohibiting the Senate from issuing “bills of attainder”. The Senate has no authority to impose a “penalty” including the penalty of disqualification from office on a private citizen.

        Milhouse in reply to countrylaw. | January 17, 2021 at 10:37 am

        The same constitution that prohibits bills of attainder permits impeachment of officers, and does not limit it to ones that are currently serving. Because impeachment is not a bill of attainder. It does not impose any criminal penalties.

      caseoftheblues in reply to Milhouse. | January 17, 2021 at 7:50 am

      Gee Milhouse…so NOW it’s important to you about how it was viewed rather than than how it is actually written…what happened to to your worshiping every comma and tense and shall and shall not. Your screams of that’s not what it clearly says are not suddenly missing…odd that

        You moron. What any law, including the constitution, says is what the words meant at the time it was enacted. How an ordinary person would have understood the words at that time.

        The constituiton doesn’t say only currently serving officers can be impeached. And that did not go without saying, because everyone at the time was familiar with impeachment, and it was used for former officers. The constitution limited impeachment in several ways, but this was not one of them.

          Mac45 in reply to Milhouse. | January 17, 2021 at 1:24 pm

          When the Constitution was written, impeachment was a hold over from English Common Law. It was also a judicial proceeding, not merely a political one. Impeachment and conviction, in England could result in fines, imprisonment and other criminal penalty. It was also not reserved for those persons occupying an office, but could be applied if the official was no longer in office.

          The Framers of the US Constitution severely restricted the English practice and reserved it for the removal of an official from office and disqualification from holding future office.

          caseoftheblues in reply to Milhouse. | January 17, 2021 at 1:26 pm

          My point still stands….you are very slippery when it comes to what the actual text states and what conflicting documents may or may not say was the intent….seems you take the view of whatever is most convenient for your view of that issue at the time because we all have sure heard you screaming about the sanctity of what actual text states enough times. And how do we know I’m right…you’ve resorted to name calling …tsk tsk tsk.

          I really enjoy and learn from discussions here. But then you have to come up with crap like “You moron, …” and ruin the civility of it all.

      Publius_2020 in reply to Milhouse. | January 17, 2021 at 1:25 pm

      In both of the (two) Senate trials of former government officials, the defendants expressly raised the jurisdictional bar to impeachment and trial of former officials. In the case of Blount, the Senate dismissed the proceeding based on lack of jurisdiction. In the case of Belknap, they voted to continue (and then acquitted him). No court has ever had to test the issue.

      It seems like a stretch to conclude that the impeachment of ex-Presidents or other officers was a commonly accepted understanding of the Article II impeachment clause under those circumstances. It may be, as you state, that some officials accepted that interpretation. But a universally held view?

      To accept that view would allow the Congress to unilaterally impeach and bar any person who has previously held an office from any future office. Thus, in 1799, the federalists could have impeached and barred Jefferson, Burr, Madison, Monroe and basically everyone in the opposing party, had they the control of the Senate to accomplish it. This seems like an unlikely interpretation, and runs contrary to the basic decision to limit the jurisdictional power of the impeachment process.

        mark311 in reply to Publius_2020. | January 18, 2021 at 5:15 pm

        Interesting points, from a legal perspective I think you are probably right. I wonder though if the prism is wrong ie the lense is not a legal one but a political one. Impeachments purposes is to remove someone for a crime so great that they should no longer be allowed that office (now or in the future) so what is the bar for that happening;not legal arguments but political ones. Provided that Congress and the senate approve (and in the senate’s case by 2/3rds ) then that political crime can be punished. Now what’s to stop people endlessly impeaching well I’d say the voters. Whilst the senate is nominally a juror so is the public and they know it. Is the public going to agree with that decision, if it’s a marginal decision or not viewed as just then the public will vote against that party next time. The reason I make this argument (tentatively its true) is that the constitution makes the power of impeachment solely in the purview of congress and the senate. In other words even if the senate drifts into non constitutional territory can the supreme court actually act to remedy?

Well, good luck with the evidence they they provided from the House Investigation.

If anyone thinks that roberts will not willingly preside over the impeachment, please contact me asap.

I have some waterfront property near the Grand Canyon that you might be interested in purchasing.

    CommoChief in reply to ceh9876. | January 16, 2021 at 8:34 pm

    Well that’s me for one. Roberts is too concerned about the image of the court and his personal legacy to allow himself to be manipulated into presiding over this farce.

    Maybe I am wrong, but maybe not.

    If you do have waterfront property in the grand canyon, fyi there is water in the canyon that’s why it’s a canyon, you should probably hold on to it. Maybe sell to B Gates? He is apparently buying up land these days.

    henrybowman in reply to ceh9876. | January 16, 2021 at 8:51 pm

    Pretty sure the Indians own all that. But they’ll let you raft it for a fee.

Don’t forget, they’re going to stack the court too.

    Milhouse in reply to maxmillion. | January 16, 2021 at 8:21 pm

    Manchin says he won’t let them.

      Olinser in reply to Milhouse. | January 16, 2021 at 8:30 pm

      BREAKING NEWS

      Manchin is a liar.

      artichoke in reply to Milhouse. | January 17, 2021 at 2:11 am

      The same Manchin who wants to try the impeachment even if Trump is no longer in office? He was only pretending to be moderate at all, he’s actually a fire-breathing leftist with a very smooth act.

        mark311 in reply to artichoke. | January 17, 2021 at 7:56 am

        You didn’t actually answer the question of when Manchin lied? You seem to have drifted of point. He may have a different perspective which is an entirely different question fine. But calling someone a liar on the basis that they hold a different view point well that just smacks of dishonesty

        Milhouse in reply to artichoke. | January 17, 2021 at 10:42 am

        Yes, that same Manchin says he won’t let them pack the court. I see no reason not to believe him. When has he lied?

          retiredcantbefired in reply to Milhouse. | January 17, 2021 at 11:44 am

          I don’t think we even need to document Joe Manchin’s past tergiversations.

          He’s come out in favor of invoking the 14th Amendment to expel Ted Cruz and Josh Hawley from the Senate.

          Packing the Supreme Court is an easier stretch than that.

      Evil Otto in reply to Milhouse. | January 17, 2021 at 7:22 am

      The same Manchin who wants to kick Cruz and Hawley via the 14th Amendment?

      Don’t be naïve. Manchin will do whatever is politically expedient at the moment. If it benefits him politically to support court packing he’ll flip his position in a millisecond.

      caseoftheblues in reply to Milhouse. | January 17, 2021 at 8:05 am

      Manchin also says he open to statehood for DC and Puerto Rico so yah sure keep thinking he’s a firewall against court packing.

        So? He’s open to those things, so they might happen. He’s not open to packing the court, so it won’t happen.

          caseoftheblues in reply to Milhouse. | January 17, 2021 at 1:29 pm

          I think the additional 4 Democrat Senators from DC and Puerto Rico that Manchin supports will have something to say about that…but keep dreaming

Connivin Caniff | January 16, 2021 at 8:11 pm

It could be real fun if defendant The Donald has the following: 1. A decent legal team; 2. Right to discovery; and 3. Right to subpoena and confront witnesses.

    Spoiler Alert: He won’t.

    They’re working hard to intimidate the entire legal profession to prevent the first, and he’ll only get the other two if 51 Senators vote to allow it. Which they won’t.

There’s no reason the VP can’t preside if it’s a former President. It’s longer a conflict of interest.

Yeah, this whole path is fraught with untenable positions.

1. PDJT is ‘accused’ of committing an impeachable act
2. HoR completed their ‘inquiries’ and adopted article of impeachment.
3. HoR voted in favor of impeachment.
4. HoR sends article of impeachment to Senate… not yet.

So we have an intermission prior to the impeachment trial? WTF is up with that? Sure politically but ethically? Legally?

The current Senate will not take up the articles and we are supposed to wait until Biden is inaugurated and the next Senate takes office. Okey doke.

At that point the issue is moot. I suppose Roberts has a choice but he isn’t going to choose to preside over this farce. Which then gives the d/progressive a choice:

A. We tried but Cocaine Mitch and Roberts wouldn’t let us complete the work.

OR

B. F it, the VP will preside. It’s a political act anyway so why not?

OR

C. Both of the above.

I would like to say Pelosi and Schumer have the sense to let this drop, do some fundraising and move on. Unfortunately I believe they may be propelled by their base to move ahead.

This means they hold a bs kangaroo court with the VP K Harris presiding while simultaneously using Roberts failure to sit as the presiding officer as ammunition to pack the court. If the r object then they use that as ammunition to end the filibuster rule.

I hope I am completely wrong. Either way it’s important for all of us to get to work on ballot integrity issues in our municipal, county and state elections. Please don’t sit on your hands or pout in the corner because our guy lost. Hell, until Trump I was a libertarian, my guy always lost. Get over it, ruck up and march towards the ‘sound of the guns’; 2022 midterms and any off year local elections.

    c0cac0la in reply to CommoChief. | January 16, 2021 at 10:14 pm

    Keeping up appearances and advancing the narrative is paramount to leftists. So I’m not so sure they will listen to reason/logic and drop the matter. I’m more inclined to say they will do a show trial whether or not it has any tangible effects just to advance the narrative. They’ll play it up in the media and to their followers.

Easy out: Just deny that Congress has standing. It’s every bit as plausible as it was in the Texas et al case.

Things are such BS right now. They could have literally had no evidence hearing and no trial and the votes would turn out exactly the same. There is no more good faith process.

Subotai Bahadur | January 16, 2021 at 8:43 pm

First, I find it hard to believe that Roberts would do anything that would upset the Democrats. They would sic ANTIFA on him.

Second, what is this Constitution of which you speak, because no Democrat [and many of the Republicans] do not recognize it.

Subotai Bahadur

Any other Chief Justice would refuse. Any other Chief Justice would have done any number of things differently than Roberts has done them.

The second fake impeachment is taking place so when PDJT releases more evidence of uniparty corruption, they can scream and howl an “impeached” President has no authority to execute such releases. They will claim it is “tainted” evidence, using the “fruit of the poisonous tree” doctrine. What are they going to do, hold a third fake impeachment for daring to act within his authority after the second fake impeachment? They are Baghdad Bob at this point, or that cnn guy standing in front of a burning city, calling it a mostly peaceful protest.

Remember, everyone: this whole thing – from ‘Russia’ to Covid – are swamp scams to keep the focus off of swamp corruption. Trump exposed it all.

Pelosi’s entire family has generational corruption, tied to 4 families that have run CA for 80+ years:
https://prepareforchange.net/2020/10/03/pelosis-entire-family-has-generational-corruption-tied-to-4-families-that-have-run-ca-for-80-years-like-game-of-thrones/

As I recall, when other “civil officers” have been impeached, the Chief Justice has not presided. Further, the entire Senate might not need to be present for the impeachment trial. Per Wikipedia:

Beginning in the 1980s … the Senate began using “Impeachment Trial Committees” pursuant to Senate Rule XI. These committees presided over the evidentiary phase of the trials, hearing the evidence and supervising the examination and cross-examination of witnesses. The committees would then compile the evidentiary record and present it to the Senate; all senators would then have the opportunity to review the evidence before the chamber voted to convict or acquit. The purpose of the committees was to streamline impeachment trials, which otherwise would have taken up a great deal of the chamber’s time.

From this, one might imagine a Democratic-dominated impeachment trial committee with a final vote of all the Senators.

Who would preside? Again, per Wiki: “As President of the Senate, the Vice President would preside over other impeachments. If the Vice President did not preside over an impeachment (of anyone besides the President), the duties would fall to the President pro tempore of the Senate.” So a Vice President Harris might preside. She’d like that.

This is probably why the military is really in DC

How can Donald Trump mount an effective defense while no longer president? How can he access information and resources of the executive branch? Who will supply legal counsel? Who will pay the bills?

It seems to me the answer to each of those is different as a private citizen versus a president still in office.

The president-elect vs. the president-eject? If Roberts chooses to preside over a Senate trial that results in a conviction of the former president, would Roberts have to recuse himself if and when Trump’s challenge to the conviction inevitably reaches the Supreme Court? The can of worms the Democrats have opened will become a fine kettle of fish.

I think a more interesting scenario is: the Senate goes ahead, and Trump files a court case and gets a TRO.

Since the Senate must suspend all other business to have an impeachment hearing, does that stop the Senate from doing anything until the courts hash it out?

If so we could have a couple of months where no cabinet members are confirmed.

    mailman in reply to thad_the_man. | January 17, 2021 at 3:56 am

    How much time do you reckon they will spend on this given they’ve already decided he was guilty? At most it will be a day.

    Publius_2020 in reply to thad_the_man. | January 18, 2021 at 9:45 am

    No one is getting a TRO.

    Between the political question issue (see Walter Nixon), and the lack of any urgency (there is no issue of removal, only the prospective bar from office – which is years down the road), there is no reason that any court would intervene.

    The only question is whether the high Court would conclude, after the fact, that the Senate lacked jurisdiction to act under Article II.

When you see the word “shall” in the constitution, it’s not a request. The word may have become muddied by lawyers in the last couple of hundred years but the meaning, at the time of the ratification, meant “must”.

It’s not an impeachment trial, regardless of whether Roberts wants to punish Trump because now we know he didn’t want that SOB to get reelected, as he told Breyer.

I’d say it’s bad that respect for the court is now much diminished, but it’s better than when we trusted them more than they deserved. At least now we know what they’re worth.

    Roberts claims he’s done what he’s done to preserve respect for the Court, and yet respect for the Court has plummeted in no small part because of what he’s done.

    A sane man would consider trying something different. I don’t think he’s being blackmailed, I think he’s just plain nuts.

      artichoke in reply to McGehee. | January 17, 2021 at 4:38 pm

      I’m sure he’s lying and corrupt. I don’t give him any medical excuse. His saying “respect for the Court” is just another way of telling his subjects to kneel before his arbitrary rulings.

      I just think it’s good that the velvet glove is off the fist and we know what we’re dealing with.

Bucky Barkingham | January 17, 2021 at 7:17 am

This charade is all about Leftist politics not black letter law, so what’s to prevent the Left from fixing the trial so that Trump is convicted? The Constitution states: “And no Person shall be convicted without the Concurrence of two thirds of the Members present.”Schumer can concoct some pretext to exclude from the session Roll Over Party Senators likely to not vote to convict: Covid, 14th Amendment, or maybe just bully boy tactics by not letting them in. Seem farfetched? No more so than the entire pretense of convicting an ex-President on an article of impeachment.

Justice for Ashli Babbitt!

Off topic, but would someone please explain how the Dems control the Senate? There will be 50 members from each party. Harris as VP will become the president of the Senate, but not a member. While she will have the ability to cast a tie breaking vote, does this also apply to the rules of the Senate? I thought only members of the respective houses could formulate the rules for each body.

    Christopher B in reply to NJ observer. | January 17, 2021 at 12:24 pm

    From a Constitutional perspective, she is a member of the Senate just a non-voting one except in case of a tie vote. The Speaker of the House is also a Constitutional office and there’s no indication in the Constitution that the Speaker of the House needs be an elected member of the House. The only thing the Constitution says about it is that the House elects the Speaker.

    You have to spin back to the Framers and recognize that they wanted to craft a *non-partisan* government, they generally loathed direct democracy, and that we’ve changed how various offices are filled over time. There is a certain symmetry to the President of the Senate (VP) and Speaker of the House in the original document. Senators were originally chosen by the state legislatures, and the President of the Senate (VP) was also chosen indirectly by electors from the states. The House was directly elected by the people, and would directly elect its own leader. I suspect that the position of the President of the Senate was seen as a more important than the Vice-Presidency at the time. As our system became more partisan, the partisan leadership positions accumulated more power. Since the Speaker can be elected from among the House members, the party leadership and House leadership can be congruent. The position of President of the Senate atrophied and the Majority Leader became the primary leader because that couldn’t happen in the Senate, and the 12th Amendment further cemented the position of VP as President-in-waiting by having them elected on the same EC ballot.

      NJ observer in reply to Christopher B. | January 17, 2021 at 2:50 pm

      Christopher

      Thanks for taking the time to respond. As someone new to the site and to posting, it is refreshing to be able to have an intelligent discussion. I asked the question because I have not seen it discussed anywhere and was hoping someone enlighten me.

      With regard to both house it seems pretty clear that they make the rules that govern their proceedings. The agenda in the House is under the control of the speaker (elected by the members, but if I am correct, need not be a member of that body and would not have a vote) and that position (speaker) is called for in the constitution.There seems to be no equivalent position in the senate.

      I assume that it is by tradition or rule making that the party in the majority governs the agenda in the senate which brings me to my question. With 50 members from each party, who sets the agenda? It seems to me that a similar situation occurred and a power sharing agreement was reached.

      As for Harris as VP and president of the senate I cannot see her role in this. She will be a member of the executive branch and therefore is not and cannot be a “member” of the senate. Therefore, I cannot see her being able to provide any vote in regard to the rule making or agenda of the senate. Per the constitution as provided by Blackgriffin she would only be able to vote in matters of treaties, nominations or legislation should there be a tie.

    Blackgriffin in reply to NJ observer. | January 17, 2021 at 1:12 pm

    “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided” (U.S. Constitution, Article I, section 3).

smalltownoklahoman | January 17, 2021 at 8:41 am

If they can impeach Trump after he’s out of office then if R’s (or some new party that rises from their ashes) retake congress they can go after Obama for the things he did while in office, and he’s been out for years. Oh man the howls of outrage if that were to happen!

Ya know Dems (if you happen to read this) it might just be better to leave some things be rather than continuing to pursue them. Unlikely given your party’s vengeful streak but it’s something you should consider.

    Yes, the next Republican-led House can impeach 0bama. And should, as retaliation for this impeachment.

      I like that idea

      Brave Sir Robbin in reply to Milhouse. | January 17, 2021 at 4:01 pm

      “Yes, the next Republican-led House can impeach 0bama. And should, as retaliation for this impeachment.”

      “An eye for an eye, and a tooth for a tooth, pretty soon everyone is eyeless and toothless.”

      I would be better that the Democrats do not go for either an eye or a tooth. BTW, MAC45 had the superior argument regarding the meaning and limitations impeachment contained in the USC. The language is fairly plain, and differ immensely from common law precedent, and therefore, one should rightly conclude that common law precedent was not the intended guide.

      It would be a horrible precedent for congress to impeach and try private citizens. So let’s do everything we can to avoid it, including parsing language in such ways to allow it when such language seems quite contrary to the purpose.

      Also, trust Joe Manchin at your peril. Trust any politician at your peril, but especially Joe Manchin.

      Just saying….

      lawgrad in reply to Milhouse. | January 19, 2021 at 5:16 pm

      The House of Representatives voted to impeach DJT a week before his term ended. The House of Representative never voted to impeach Obama. There is an important difference there, so the House cannot go back to impeach 8 years after leaving office.

FWIW, I am just a jaded old person,, but that guy Roberts, it doesn’t look like he gives a sht about our Constitution… Just like the DOJ/FBI doesn’t give a sht about laws.

Truthfully, I don’t really understand the difference between impeachment and an indictment, other than the players,, one is a House of Congress and one is a grand jury… but in my mind they seem similar..I know it is more than that,, but sorry, I am thinking our VSGPotus is a ham sandwich in Chief, of sorts.

    Milhouse in reply to amwick. | January 17, 2021 at 10:44 am

    The difference is only in the kind of proceeding it is, and the maximum penalty if convicted.

    CommoChief in reply to amwick. | January 17, 2021 at 11:11 am

    amwick

    An indictment flows from a grand jury as part of our criminal justice system. It is a ‘legal’ act.

    An impeachment flows from the HoR and is analogous to the grand jury. It is not a ‘legal’ act it is wholly a political act. The HoR is empowered by the constitution to choose to act or not. The voters get to exercise their oversight of the HoR in the next election.

    That’s about as good a description for anyone other than true legal scholars. The rest is theory, conjecture and interpretation of a very limited number of examples.

    IMO, each act of impeachment in the HoR and each trial in the Senate are independent from any previous acts. The constitution doesn’t lay out anything like a code of procedure other than the basic organization and form.

    Since impeachment and the accompanying trial are political act not legal acts, IMO each is autonomous and unbound by ‘precedent’. The voters eventually get to have their say on the matter in subsequent elections.

retiredcantbefired | January 17, 2021 at 11:04 am

John Roberts is not a stickler for anything Constitutional. He’s a political trimmer of the first order. When presiding over the last impeachment trial, he made sure the sacred name of the “whistleblower” was never uttered.

He’ll decline to preside over a trial of this impeachment if he thinks presiding will get him into hotter water than not presiding.

With due respect to our host, Mr. Turley, and other legal scholars offering their opinions, this seems to be an instance where those of us who are not lawyers find the debate to be a bit maddening. I understand the ambiguity of the wording of the Constitution but it certainly seems that the ambiguity is being allowed to swallow up a reasonably logical set of distinctions among impeachment, conviction, and the status of office holders.

I’m not sure why the Impeachment clause can’t be read as specifying that the *only way* to remove a President, VP, or other officer of the US prior to the end of their term or their resignation is by impeachment and conviction. Simply passing a bill ejecting them or abolishing their office doesn’t get it done. In this case so long as the office is occupied at the time of impeachment, the actions of the House should be valid. It appears to me, and I think a lot of other people, that the trial portion in the Senate does not depend on the impeached party continuing in office since the penalty for impeachment includes denial of holding further office, and could be read to include removal from *subsequent* office. In other words, a President could not make a deal with the VP that he would resign to avoid conviction so long the VP appointed him to powerful Cabinet position. Once impeached, it seems to me that a trial can go forward whether or not the impeached person is still in office. As far specification for the Chief Justice presiding in the case of the impeachment of the President, it seems fairly obvious that this is intended avoid the conflict of interest that would arise if the Constitutional leader of the Senate, the VP, was presiding over the trial of the President while he was still in office. Once the impeached President is no longer in office, there is no conflict of interest and no reason for the Chief Justice to preside over the trial.

    CommoChief in reply to Christopher B. | January 17, 2021 at 1:18 pm

    Christopher,

    Granted on the confusion. IMO, the key points ate:
    1. The purpose of impeachment is to remove from office. It isn’t and.wasn’t intended to be a higher form of ‘censure’.

    2. Impeachment by the HoR is followed by a trial in the Senate. Thus there are two parts of the process. One distinct role for each of our bicameral Congress.

    3. DJT will not be in office when the article of impeachment is even sent to the Senate from the HoR.

    Taken together, IMO this moots the process. The Senate can’t accomplish the first objective of impeachment; removal from office therefore they can’t simply skip that and move on to impose a ‘punishment’.

    Others disagree. That’s fine. There isn’t a huge body of precedent here, in fact because the entire process is an exercise of political authority not legal authority, IMO each impeachment in the HoR and each trial in the Senate is unique and unbound by prior events.

    Certainly one Senate could choose to follow previous examples and bind themselves to those examples but they are not required to do so. The Constitution is largely silent other than the outline of the process and the grant of political authority to act to accomplish a primary objective: removal from office.

    I covered this in detail in an answer above. But, the answer lies in the wording of the to impeachment clauses. In Article 1 Section 3, the penalty for conviction under the articles of impeachment, is removal from office AND, not OR, disqualification from holing future office. This seems to require that the person impeached actually be in office at the time of the conviction before he can be disqualified from holding future office.

    And Article 2 Section 4 specifies only removal from office upon conviction.

    This would strongly suggest that:
    1) the impeached official would have to be in office at the time of the Senate trial, for one to be conducted and
    2) that disqualification would require removal, before it could be imposed.

    The problem is that we have no court cases on this issue.

When did Roberts start caring about the Constitution? Really, at this point, there are only two on the Supreme Court who do. The others, including Kavanaugh and Barrett, are corrupt.

“If Roberts refuses to preside over the trial of an ex-President as beyond the Chief Justice’s jurisdiction under the Constitution”

Why exactly would it be beyond his “jurisdiction”? It would be beyond the MANDATE of the Constitution, but why jurisdiction? The Constitution plainly contemplates that someone should preside in “all other cases” — perhaps the Vice-President, perhaps someone else, so what part of the Constitution would deprive Roberts of the ability and choice to preside if invited?

It seems to me that the conundrum envisioned here only happens if Roberts declines the invitation, which he can only do if he is prepared to rule that Trump is not “the President” for purposes of such trial. My guess is that Roberts does not decline the invitation, because he will seek to avoid creating a Constitutional issue in the first instance.

The interesting question (for me) is whether Schumer is prepared to risk this issue in setting a trial. He would probably try to sluff the question by giving notice to the Chief in which he ambiguous refers to Trump as President Trump, or in which he simply conveys the Articles (which naturally refer to President Trump in that manner). And that places the impetus on the Chief to respond.

    CommoChief in reply to Publius_2020. | January 17, 2021 at 1:28 pm

    So in your example you have the Senate Majority leader, Schumer, informing the Chief Justice of SCOTUS that DJT is in fact the sitting President of the United States?

    Impeachment is a political not legal act. Your submission is stating that DJT is the President not Biden. That is a Constitutional crisis in the making. The Chief Justice will have just sworn in Biden or observed the oath of office by Biden. I don’t see how he can ignore that reality.

    I don’t think Roberts wants to go down the rabbit hole to preside over the ‘impeachment trial’ of a former President. That is a hugely problematic commitment to future payback from political actors. Very bad idea, IMO.

      Publius_2020 in reply to CommoChief. | January 18, 2021 at 9:52 am

      No, in my example, I imagine that Schumer will send the Articles of Impeachment to Roberts c/o SCOTUS with a statement that says “Please be advised that the House has delivered the enclosed Articles of Impeachment to the Senate. Trial is schedule to commence on such-and-such day.”

      The Articles themselves call Trump “President,” because he was, in fact, President on the day that they were voted out by the House. Schumer will sluff the issue by simply referring to the Articles themselves. He won’t take any position on the question of whether the Chief is constitutionally compelled to preside; he will instead let the Chief take the initiative on that (at least from a formal notice standpoint).

      I would imagine that this will trigger a telephone conversation, which will not be on the record. Schumer will say “please come over.” The Chief will have to decide what to do.

Close The Fed | January 17, 2021 at 2:47 pm

Quote from Miss Lindsey in Breitbart today:

“And to my Republican colleagues in the Senate, if we embrace an unconstitutional impeachment of Donald Trump after he is out of office, it will destroy the party,” he continued.

“The Republican Party wants to move forward. President Trump’s going to be the most important voice in the Republican Party for a long time to come. He’s going to accept responsibility for his part on January the 6th. But impeaching him after he leaves office is not only unconstitutional.

From a Republican point of view, it would destroy our party. I hope the Republican Senators know that because it is a reality. And it will not help the country, the most important thing. Impeaching him after he leaves office will be disastrous for this country and our party.”

There are a number of former Presidents that perhaps should be impeached from Nixon to LBJ to FDR and most especially Wilson.

“Cry ‘Havoc!’, and let slip the dogs of war.”

artichoke wrote about Harris being Biden’s “insurance policy”. The Democrats have learned well – just as Biden was Obama’s “insurance policy”. Who will be Harris’ “insurance policy” Joaquim Castro ? Elizabeth Warren? AOC ? Ouch!

I think that the analysis leading to the conclusion “then it is not an impeachment” is oversimplified. In general, the Chief Justice does not preside at impeachment trials before the Senate. (This has been the case when impeaching judges, etc.) However, since the VP will take over if the President is removed from office, he has a conflict of interest if he were to preside over the trial of a sitting President. Since Trump will no longer be the sitting President, there is no reason from Roberts to preside. Instead VP Harris can preside, and there will be two votes at the end: 1) convict and 2) prohibit from holding office.

I do not see anything in the Constitution that says the President must be in office at the time of the trial. He was in office at the time the House voted to impeach.

If Republicans try to press a twisted interpretation of the impeachment clause, Congress could then resort to the 14th Amendment to bar Trump from future office.

So they are going to hold a trial in the Senate for the impeachment of the President. Or so they think. But given that President Trump will no longer be president at that time wouldn’t they actually be constitutionally trying and convicting the current president which would be Biden*?

Now wouldn’t that be a hoot?

Somebody should really point that out to these morons.

Milhouse. The President or VP are not “Officers”. They are elected officials who appoint Officers. Section 3 does not apply.

Milhouse. The President or VP are not “Officers”. They are elected officials who appoint Officers. Former President Trump is now a civilian so cannot be impeached as he is not the President nor has he ever been an officer.

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