Multiple news organizations are reporting that Supreme Court Chief Justice John Roberts will not preside at the upcoming Senate impeachment trial of Donald Trump.

CNN reports:

The contours of former President Donald Trump’s second impeachment trial are starting to take shape, with the Senate’s longest-serving Democrat expected to preside over the trial.

Chief Justice John Roberts will not be presiding like he did for Trump’s first impeachment trial, according to two sources familiar with the matter. Instead, Sen. Patrick Leahy, the President pro tempore of the Senate, is expected to preside, the sources said. The Constitution says the chief justice presides when the person facing trial is the current president of the United States, but senators preside in other cases, one source said.

Axios reports:

Sen. Patrick Leahy (D-Vt.) is expected to preside over former President Trump’s second impeachment trial, a Senate source tells Axios. CNN first reported Leahy’s role.

Why it matters: The Constitution requires the chief justice of the Supreme Court to preside over a sitting president’s impeachment trial rather than the vice president — who has the title of president of the Senate — to avoid a potential conflict of interest. However, there is no precedent for a former president.

It is not clear from the reporting if Roberts refused, or was not asked. In either case, as I previously wrote, Impeachment Problem? Chief Justice Roberts May Not Have Constitutional Authority To Preside At Trial Of FORMER President:

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.” ….

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.

If the news reports are true, and Roberts will not preside, then it is not a legitimate presidential impeachment trial. You can’t have it both ways, saying the former President can be tried as if he’s the President, but then have a constitutionally-authorized trial without the Chief Justice presiding. Sure, Democrats can have a trial, but it’s not a legitimate “impeachment” trial.

Josh Hawley has it right:

“There’s only one constitutional process for impeachment and it is of the president, not a president,” said Sen. Josh Hawley (R-Mo.). “It requires the chief justice to preside.”

For prior legal analysis, see my prior posts:

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


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