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Reports: Chief Justice John Roberts Will Not Preside At Upcoming Trump Senate Trial

Reports: Chief Justice John Roberts Will Not Preside At Upcoming Trump Senate Trial

Democrats have twisted themselves into logical and constitutional knots, simultaneously claiming the FORMER President can be tried as if he’s the current President, but holding a trial without the Chief Justice presiding, who under the Constitution must preside at the trial of the President.

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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Paul In Sweden | January 25, 2021 at 2:02 pm

Scream!!! The downward spiral has exceeded LUDICROUS SPEED.

Hanging Judge Leahy instead.

    Paul In Sweden in reply to oldschooltwentysix. | January 25, 2021 at 3:01 pm

    I still own property and vote absentee out of Vermont. So I have Leahy and Bernie… Leahy’s office wrote me back once on the issue of providing special protection against litigious litigation heaped upon the firearms industry. Leahy’s office retort from what I recall made sense in a perfect world but we are far from a perfect world. Leahy is a very bright man but it is obvious to me that he sold his soul many many years ago. Bernie from my NYC is so worthless that he even got the boot from the Hippie Communes in Vermont.

    Somebody please resurrect the Sons of Liberty…

Sen. Rand Paul says Roberts refused on the grounds discussed in Professor Jacobson’s post.

2smartforlibs | January 25, 2021 at 2:06 pm

He has not jurisdiction neither does Congress at this point. Impeachment is political.

Maybe the tea leaves from SCOTUS dismissing the whackadoodle emoluments cases should be our guide?

They mooted these cases, including the cases still in lower courts because DJT isn’t the sitting President. That and the cases were hot garbage.

    Sherwood in reply to CommoChief. | January 25, 2021 at 5:32 pm

    Precisely. SCOTUS today Bitch-Slapped Pelosi and Schumer regarding their impeachment hoax.

    DaveGinOly in reply to CommoChief. | January 25, 2021 at 9:10 pm

    Not the same. Once out of office, there’s no possible claim against Trump upon which the court may grant relief. What was done has been done. It is not undoable and there was no other relief available except during his term as president.

    The impeachment is different. Although he can’t be removed from office he still may be barred from holding office in the future.

    But because impeachment is a political process, can it be undone by a future Congress? Even judicial processes can be undone by commutation and pardon. Criminal records can even be expunged. Most political processes can walked back – legislation can be repealed, executive orders can be cancelled or countermanded. (And criminals can be re-tried, especially when new, or ignored, evidence is introduced.) A future Congress has every authority the current Congress has. Could a future Senate retry Trump and find him not guilty? Could the Senate simply rescind or reconsider an earlier Senate’s conviction? The Constitution gives the basics for conducting an impeachment. It doesn’t say that it can’t be reconsidered, so there’s no constitutional bar to same. Maybe all it would require is a change to Senate rules? Maybe it doesn’t even require that. I’m asking. Does anybody know?

      CommoChief in reply to DaveGinOly. | January 26, 2021 at 9:43 am


      We can disagree.

      The role of the trial in the Senate is to secure a ‘conviction’ for the acts stated in the Articles of Impeachment sent by the HoR. The conviction provides the Senate the ability to remove from office and other measures.

      The whole point is to provide a constitutional way to remove an elected, sitting President from office. That is a very large step. It isn’t a supercharged version of a censure.

      Removal from office. DJT, is not in office.

      That seems to me to make this moot. Especially when the HoR delayed delivery of the articles until the new President was inaugurated and the Senate is delaying the beginning of the trial for an additional ten days or so.

      Impeachment is a political power and a political act. If the folks pushing for this have refused to submit their acts to the will of the voters in the composition of the Senate while DJT was in office and could have been removed they are not,IMO, acting in a Constitutional manner.

      If they felt he needed to be removed die to some immediate danger they could have argued for invoking the 25th Amendment. They attempted to do pressure that route and failed.

      Everyone endorsing this process of using an impeachment against someone after they leave office is endorsing an endless tit for tat based upon which political party holds power. This is a horrible idea.

      Lots of people disagree with my assessment. That is fine, we can disagree without being disagreeable.

So whatever the Dems want to call it, it’s clearly not a Constitutional impeachment trial.

Subotai Bahadur | January 25, 2021 at 2:27 pm

You gotta realize that we are way down the rabbit hole. The Constitution and the laws do not apply when they might restrict the Left that controls all three branches of government.

1) Constitution or no, there will be a trial.
2) To be honest, I rather expected that Roberts would gladly have presided and done as he was told.
3) I would not be surprised if they draft Nancy Pelosi to preside.
4) One does have to wonder if there is a line that Americans will not cross.

Subotai Bahadur

    Is it possible that Roberts has some vanishing shred ofi integrity left? We dare not hope …

      MattMusson in reply to FOAF. | January 25, 2021 at 3:09 pm

      There have now been 4 Impeachments in the history of the Republic.
      NONE have removed a sitting President.

      Impeachment is a Paper Tiger.

      artichoke in reply to FOAF. | January 25, 2021 at 5:12 pm

      No. If he had any integrity, he would preside, entertain a motion for dismissal on one of the many available grounds listed by Ted Cruz, and grant the motion.

      Never ever suspect Roberts of having integrity.

We live in a pretend world now. We had a pretend election. Biden now pretends he is president. We will have a pretend impeachment with a pretend impeachment trial and a pretend non conviction. The MSM will pretend the 75 million Trump voters disappeared into thin air now they can’t hear them. Google will pretend it’s not evil. Later we can all pretend this will end well.

Bucky Barkingham | January 25, 2021 at 2:30 pm

It has been reported that Sen Leahy will preside, he who voted to convict Trump at the first show trial. Why not pick TV personality Captain Kangaroo to preside. That would be appropriate.

Justice for Ashli Babbitt!

‘Splain to me. If the reason for impeachment of a President is removal from office, and the object of impeachment is not the President, what are we doing? What other punishment is there?

So when Trump wins in four years, the Evil Ones will try again to impeach.

    The whole reason the Evil Ones want to conduct Sham Trial II is their belief that a conviction will prevent Trump from running for president in future elections.

      randian in reply to jpwcpa. | January 25, 2021 at 9:23 pm

      The whole reason the Evil Ones want to conduct Sham Trial II is their belief that a conviction will prevent Trump from running for president in future elections.

      It think it equally likely that they’re doing it to remove his secret service detail.

      Lucifer Morningstar in reply to jpwcpa. | January 26, 2021 at 8:25 am

      The whole reason the Evil Ones want to conduct Sham Trial II is their belief that a conviction will prevent Trump from running for president in future elections.

      No, a conviction in and of itself wouldn’t prevent Trump from running for the office of president in a future election. That’s a whole separate issue the Senate would have to consider in the punishment phase of the kangaroo court impeachment process.

      But it’s all a moot point since this isn’t a constitutional impeachment but simply the actions of vindictive democrats that simply cannot let their hatred and derangement against Donald Trump go.

    Those who are still alive…

Taiwanese Lady | January 25, 2021 at 2:44 pm

What’s become quite rare, if non-existent, is a Democrat who takes his/her Article VI oath seriously.

“Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” John Adams.

Right one we have a government “of any other.”

    American Bolsheviks ignore the Constitution when it is not useful. When it might prevent them from advancing The Cause. Because The Cause is paramount. Above all other things. Above traditions, conventions, morals, ethics, laws, and the Constitution. There is nothing more important than The Cause.

Democrats are intent on destroying Republicans, especially outsiders.

They are even going after FORMER Mich gov Snyder over the Flint water crisis. No love lost on him but still- just another proof that dems can’t win on policy or in a fair election so this is their only recourse. Sad that any Republicans go along with this nonsense.

JohnOfEnfield | January 25, 2021 at 3:04 pm

Please help me understand the Alice in Wonderland World you live in: Will Leahey (as both judge & jury, both President of the trial & a senator) have a vote? Given the requirement of 2/3 majority & the need for seventeen Republicans to vote for impeachment this might be important. Or does he just have a casting vote? Or none?

I know these are rather “stupid” questions but given where your ruling party have positioned themselves they might be important.

I realise it is not my country (British) or my problem but I would be interested in your response.

PS Given that the SC has mentioned the Magna Carta 300+ Occasions in judgements it has made since 1776 would you like an up-to-dater copy?/sarc
PPS Does Pres. Joe Biden realise how pokey & inaccessible the hotel is that has been proposed for the G7 summit? Boris is taking the Mickey.

    That is an excellent question. When a President is Tried by the Senate the Chief Justice presides but has no vote as a Juror. This is “breaking new ground” and may, when all is said and done, head for the SCOTUS on the issue of constitutionality of trying a private citizen in an Impeachment. Possible not when the Senate returns a Not Guilty verdict. It is interesting to consider that for other than Presidential Impeachment, the Senate has decided in the ’80s that a committee may try the case. So when a President is Impeached and subsequently the Private Citizen Tried, what then? Particularly when the Founders rejected the then English system of Parliamentary Impeachment and Trial being proper for anyone other than the Monarch.

    We live in interesting times, and sadly they are commensurate with the supposed Chinese curse.

      Edward in reply to Edward. | January 25, 2021 at 4:20 pm

      P.S. I firmly believe the only “stupid question” is the one you have and don’t ask. That is what I told the trainees in my class when I was an Army Instructor and what I have also told our children.

      Brave Sir Robbin in reply to Edward. | January 25, 2021 at 10:54 pm

      Trump will not be convicted, therefore the issue would be found moot, even if it went to the Supreme Court.

      I hope the Republicans draw this out for four years. Think how much terrible legislation this would tie up in the Senate. Think of all the appointments slowed to a trickle.

      If I were the Trump defense, I would just play all the vile and much more inciteful things the Democrats have been saying over the last several years. I would play the audio of the Bernie bro trying to gun down all the Republican members of Congress. I would play film of Democrats attacking Republicans walking away from the Republican nominating convention in downtown DC. Just stand up and read aloud all their hateful and violent rhetoric, and film of all the attacks on Republicans and Trump supporters. Show film of all the buildings burning from last summer.

      Remind the world who and what THEY are.

    Just a guess but with Leahy out that leaves 99 senators, 2/3 of 99 is 66 so the Ds need one fewer R to convict.

      felixrigidus in reply to Perfesser33. | January 25, 2021 at 5:12 pm

      Well, they might try to argue that, after all, why should they respect “two thirds of the Members present” if they don’t bother to follow the constitution in the first place?

        randian in reply to felixrigidus. | January 25, 2021 at 9:29 pm

        why should they respect “two thirds of the Members present”

        If they’re going to do that why even have the Republicans in the chamber? Have them removed and the “members present” will vote to convict.

          felixrigidus in reply to randian. | January 26, 2021 at 4:46 am

          Maybe they think the optics of Democrat henchmen in brown shirts physically preventing Senators from being present would be too inflammatory.

      66-49 = 17, which is the same as 67-50.

        ConradCA in reply to JLT. | January 26, 2021 at 4:18 am

        Except the Leahy is a member of the Senate and he is present. His vote for conviction will be counted.

      It also leaves the Republicans with a 50-49 effective majority. I can’t see any way Schumer would let that stand.

        Brave Sir Robbin in reply to txvet2. | January 25, 2021 at 11:07 pm

        As they vote, you will see on the CSPAN screen votes for acquittal suddenly turn into votes to convict. Then, there will be a watermain break in the Capitol, and it will need to be evacuated and vote counting suspended until the morning. Then during the night, 2,333,091 convict votes will turn up around 3AM. Around 10AM some Republicans will complain pointing out there are only 100 members of the senate, after which uniformed troopers from Twitter will storm in and round up the Republicans and send them to a Facebook re-education camp for asserting the vote was rigged, followed by Google Goon squads descending upon Republicans, conservatives, and even libertarians across the country to cancel them first physically, then virtually. After that, Dr. Fauci will emerge and declare 2 weeks of no breathing to slow the spread of COVID. The Blue states and progressives will snap too, and do as commanded. Two weeks later, a Central American immigrant caravan will cross the border and wonder where everyone is.

        That’s my prediction.

Is this action not a Bill of Attainer?

    DaveGinOly in reply to steve_gosney. | January 25, 2021 at 9:25 pm

    No. Because it’s not an action based on a “bill,” that is “legislation.” An impeachment is a political process, conducted in most cases by a legislative body, but it is not based on a statute, it is usually based on the rules of the conducting body, and, in the case here in the US, some particular stipulations (e.g., setting limits on the punishment of a president who is successfully impeached) are in the Constitution. Any statutes that may be referenced (as having been transgressed by the subject of the impeachment) are likely not bills of attainder themselves. A bill of attainder is legislation tailored to mete out punishment to a particular individual or individuals, and not to have a general applicability to all.

    The bar to bills of attainder goes hand-in-hand with the bar on ex post facto laws, so that a criminal law cannot be devised after an act has occurred, and then employed to prosecute the actor.

If they are to try President Donald J. Trump, I’d like to see the Republicans call as witnesses Kamala Harris, Nancy Pelosi, Maxine Waters, Omar, AOC, Tliab, Pressley, et al, who have used violent rhetoric to make inciteful remarks, and question them after playing video clips of them using such language. Likewise, clips of Dems being asked to condemn Antifa/BLM violence and refusing to do so. Then one by one, refer each of them to impeachment for inciting a riot, violence, insurrection, sedition, etc.

Also, since each of those ignorant dip$h!ts made their remarks before Trump’s alleged incitement on 1/6, INSIST the Democrats try their own members BEFORE they try Trump. After each such witness, move to dismiss Trump or to table impeachment until AFTER each of the democrat creeps are tried.

But I doubt many of the Republicans have the stomach to use such a tactic.

It’s not a slam of the dems. The Chief Justice presides instead of the Vice President because the Vice President has a conflict of interest (he becomes President, namely).

In the case of a former President, there’s no conflict of interest and the VP can preside, as he does in other impeachments.

    sorry but the VP cannot preside over the impeachment ‘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’

    it says ‘the Chief Justice shall preside’ no quibbling, no room to maneuver, it’s the chief justice or no trial, one more thing did you see the word former any place in that statement.

      rhhardin in reply to ronk. | January 25, 2021 at 8:30 pm

      Yes but they’re not trying the President. Biden is the President.

        Trump won. So they are trying the duly elected President. Biden is a fraud, and not president. So Roberts must preside, or it’s unconstitutional, and Trump is not convicted, regardless of how the traitors vote.

        TheOldZombie in reply to rhhardin. | January 26, 2021 at 1:43 am

        If they aren’t trying a President than what are they doing?

        They can’t put a private citizen on trial. Trump is a private citizen at this point.

        If it’s your claim that the acts he is alleged to have committed were done while he was President than shouldn’t he be tried as if he was still a President for the sake of the trial? In other words the Chief Justice must preside over the case.

    diver64 in reply to rhhardin. | January 27, 2021 at 1:33 pm

    The Constitution is quite clear on who presides in any trial in the Senate of any officer of the US including Presidents. Only the Chief Justice is named. Schumer can’t change it because he doesn’t like it. A Republican Senator should take this to SCOTUS before anything else happens and that’s why the Dems are in such a hurry

I say, should the GOP ever take the House and Senate again, we immediately begin demanding the impeachment of Obama.

Trump should DEMAND a lengthy witness list of Democrats from all the places the steal took place and force them to lie on the witness stand. Of course the video of Trump’s speech at the now infamous rally will show that he never incited the “storming” of the Capitol.

So Roberts won’t do his constitutional duty. Impeach him!

All those idiots can impeach each other. Let’s impeach a bunch of senators too. I like peaches, peach will be the flavor of 2021!

I can no longer take this stuff seriously. With SCOTUS refusing to hear evidence of election fraud, they’ve been thrown on my mental scrap heap. The WH and Congress can join them there. We have a garbage pile for a government.

Leahy? Really? That would be quite a circus. Last time I saw him (Barrett hearings?) he looked slower than Biden and with worse dentures.

We have certainly gone down the rabbit hole, through the Twilight Zone and into the theater of the absurd.

    artichoke in reply to NJ observer. | January 25, 2021 at 5:19 pm

    He couldn’t go too hard on Barrett. Female you know.

    He’ll be brutal and as unfair as he wants if he presides here. He’s a crafty far-leftist. Been in the Senate so long that Bernie Sanders is the *junior* senator from Vermont! Full of the usual far-leftist anger.

    But I cannot see how the proceeding would have any meaning. It does not fit the constitution requirements.

      NJ observer in reply to artichoke. | January 25, 2021 at 5:31 pm

      So what’s up with the air and water in Vermont? There must be something going on for the voters to keep sending these two loons back again and again.

Even Roberts knows it’s an unconstitutional sham.

At this point, Trump should just refuse to participate in any manner in this Star Chamber BS. With Leaky Leahy acting as judge and he who bang-banged Fang-fang presenting the case, there is zero chance of any level of justice in this farce.

Chitty chitty bang bang

Trump should go to District Court to get an injunction to prevent the trial from taking place.

The issue would most likely be resolved by the Supreme Court.

So the Democrats want to “try” a private citizen for the purpose of keeping him from being eligible to be president. Sounds like a Bill of Attainder to me.

I’m all for impeaching the president. Just look at the crap biden has been involved the last several years. Definitely impeach him.

Clearly Roberts is saving the Republic by ensuring that crazed Trump voters won’t riot if ‘His Court” actually has to do it’s job.

He may also be recognizing that Leaky Leahy has a higher American Bar Association rating than he does.

This is also relevant (anti-trumpers involved in the riot supposedly incited by Trump):

Without a Supreme as judge a trial in the Senate is meaningless.

I’m against this because Trump is a private citizen at this point and the whole point of impeachment, removal of someone from office, has already happened making things moot.

That said having Leahy be in charge is great. He’s such an ass that it’s going to make great campaign commercials.

    Lucifer Morningstar in reply to TheOldZombie. | January 26, 2021 at 10:00 am

    . . . because Trump is a private citizen at this point and the whole point of impeachment, removal of someone from office, has already happened making things moot.

    Removal from office is only one of two punishments that the Senate can impose if they find the president guilty. The other is to disqualify the convicted president from holding “any office of honor, trust or profit under the United States.”. And that’s what the democrat party is aiming to do as they simply cannot permit any chance that Trump will run again in 2024. Of course, whether or not that would be legal is a whole other question that needs to be answered.

      TheOldZombie in reply to Lucifer Morningstar. | January 26, 2021 at 1:06 pm

      “Removal from office is only one of two punishments that the Senate can impose if they find the president guilty. The other is to disqualify the convicted president from holding “any office of honor, trust or profit under the United States.””

      This is inaccurate.

      There are not two punishments. There is only one.

      Removal from office. If 2/3rds of the Senate find POTUS guilty he is automatically removed from office.

      Now if a president is removed from office the Senate than has the option to vote by a simple majority to prevent holding any future office. That option however requires that the person be removed from office. If you don’t remove them you can’t implement the prevention of holding future office.

      The person on trial can not be barred from future office if he is not convicted and removed from office.

      Constitution Article I Section 3 Number 7: “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.”

      There is no ‘OR’ in that statement. It’s an ‘AND’ meaning the prevention of holding future office requires a conviction and removal of office.

      President Trump is no longer President. He can not be removed from office since he’s already no longer in office.

      Nor can he be barred from holding future office.

      Not the way I read it. And I note Rep.Hastings was once Judge Hastings before impeached, tried and removed.

And, since it’s unconstitutional to impeach a private citizen, I don’t think Trump will be there at that hearing either!

This “Impeachment Scam” is a practical demonstration of the fear the Dims and their masters have of Trump. And they very well should fear him. He is the only national personality that could show up in Two Egg, Florida and draw a crowd of 25,000 committed supporters. Any Dim that tried in a major population center will only entertain the MSM and their “news” crew. If I were Trump I would pray for a Senate “removal” and then run again for POTUS and see if the Swamp could oppose the Peoples Choice.

John’s visiting State College, Pennsylvania, location of Penn State, the ‘Sanctuary City for Pedophiles’, instead.

I think Roberts is sending the insane Dems a very loud warning of what will happen if this farce ends up before SCOTUS.

Ultimately, I think the news story will say: Upcoming Trump Senate Trial Will Not Preside At Upcoming Trump Senate Trial.