Who May/Should Preside Over Former President Trump’s Second Impeachment Trial?

Posted in: Constitutional Law

The Senate has announced that when it convenes later this month for the second impeachment trial of former President Donald J. Trump, Patrick Leahy, Democratic Senator from Vermont, will preside in his capacity as Senate President Pro Tempore. But is President Pro Tem the best person for the job?

The Constitution gives the Senate “the sole Power to try all Impeachments” but it says very little about how impeachment trials must be conducted. (We note that this “power” doesn’t even impose on the Senate a duty to hold a trial at all; political pressure and the Senate’s own internal rules—which govern the body until a majority changes them—account for the Senate’s decision to hold trials for both of Trump’s impeachments when the result of each has been known to a high degree of certainty from the start.) Under the Constitution, the Vice President, now Kamala Harris, is the designated “President of the Senate,” empowered to run all Senate proceedings—which presumably includes impeachment trials. The “President pro tempore,” says the Constitution, shall preside when the Vice President is “absent” from the Senate. But there is one important exception to this arrangement. The Constitution specifies that when the President of the United States is tried, “the Chief Justice shall preside.” This clear textual command explains why, at Trump’s first impeachment trial in early 2020, John G. Roberts presided in the Senate—just as Chief Justice William Rehnquist presided over the Senate trial of President Bill Clinton in 1999.

It is not hard to see why the Vice President must temporarily step aside when the sitting President is on trial. If the President is convicted and removed from office thereby, the Vice President becomes President (and recall that before ratification of the Twelfth Amendment in 1804, the Vice President was not likely to be the President’s running mate but instead the runner-up in the presidential election, and even today the Constitution does not in any way prohibit the election of a President and Vice President from opposing parties.). And Vice Presidents who are not imminently angling for (or perhaps want to avoid) promotion are likely to be loyal to the President or at least concerned about the impact presiding over an impeachment trial would have on their own political future. So either way the veep has a stake in the outcome. Or so the public might conclude—and appearance of bias can cast doubt on the fairness of proceedings and potentially generate criticism of or even destabilizing resistance to a trial and its outcome.

Substitution of the Chief Justice for the Vice President comports with other provisions of the Constitution that promote impartiality in impeachment trials. Notably, the Constitution requires that when senators are “sitting” to try impeachments, “they shall be on Oath or Affirmation.” Senators, like all other government officials, take the Article VI oath when they enter office. In imposing the additional oath requirement upon senators before trial, the Constitution signals a shift in their status. When senators try impeachments, they are no longer legislators deliberating on bills but rather judges and jurors. The specific oath that the Senate has adopted (acting under its Article I power to “determine the Rules of its Proceedings”), reflects this shift. That oath (which, with a few modifications, is the same language the Senate approved in 1798) requires senators to swear or affirm that at the impeachment trial they will “do impartial justice according to the Constitution and laws.”

Also, the Incompatibility Clause of Article I (preventing members of Congress during the time for which they were elected from serving in executive or judicial positions created or enhanced during their congressional terms) and the Twenty-Seventh Amendment, which governs when congressional pay raises take effect, reflect and seek to address concerns over stark constitutional conflicts of interest.

In all of this, a puzzle has long occupied the attention of constitutional law scholars: if the Constitution only subs out the Vice President when the President is on trial does that mean that if the VP is tried she presides over her own case? Most scholars have concluded that she would not because of concerns of partiality—this time not stated in the text but taken for granted as a deeper structural operating principle reflected, but not exhausted, in the provisions mentioned above.

All this brings us to the upcoming trial of Trump. As with vice-presidential impeachment, the Constitution says nothing about who presides at the trial of a former President. And there is no clear historical precedent to go by because in addition to being the only President to have been impeached twice Trump is the only former President to face trial in the Senate after leaving office. Let’s consider several possibilities.

One is that the Chief Justice presides because we read the Article I text to include former as well as current Presidents. This wouldn’t at first seem an easy sell. Even though former Presidents often go by and are routinely referred to as “President __,” Articles I and II refers to “the President,” on trial, just as multiple other provisions of the Constitution refer to “the President” in the singular. (None of the powers of Article II, for example, are enjoyed by persons who used to be in the White House.) On this account, there is only one person, the current President, whose trial triggers a presiding role for the Chief Justice.

But perhaps in Trump’s upcoming trial there is a wrinkle that argues for a different textual reading. We might construe Article I’s reference to “the President” who is being “tried” in conjunction with the impeachment itself in his case. Recall that the House impeached Trump on January 13 while he was still in office as “the President.” Perhaps that’s what counts. Note in this regard that Article I refers to the Senate “try[ing] impeachments,” not trying individuals who have been impeached. The impeachment pending in DC these days was, when approved by the House, plainly impeachment of (sitting) President Trump. Indeed, the single article of impeachment, delivered to the Senate after Trump had left office, reads: “Article of impeachment . . . against Donald John Trump, President [not former President] of the United States of America.”

Broader reasons of impartiality—the sort that would preclude the VP to preside at her own trial—might also point to the Chief Justice presiding at Trump’s trial. If the sitting President’s VP must be disqualified for actual or perceived bias, a new VP presiding over the trial of a just-exited President might raise some related concerns—especially in the case of a President who served one term and may be planning to run again for the White House in the very next election if he is not convicted by the Senate and disqualified from future office.

A thought experiment about timing may also generate helpful instincts. If the House had immediately sent its impeachment article to the Senate and the Senate had begun its trial before Trump’s term expired, the Chief Justice would have presided (and likely would have presided to conclusion even if the trial continued on after President Biden took office). Should delay matter? A commitment to impartiality could well suggest that the House should not be able to delay transmission of impeachment articles—or that the Senate should be able to delay trial—so as to fence out the Chief Justice and give the presiding role to the Vice President. Reading the Constitution to require the Chief Justice to preside at least if the impeachment occurred when the President was in office heads off this possibility. Consider another scenario. Let’s say Trump had resigned before his term was over. Mike Pence would have become President and named a new Vice President (subject to congressional approval). It is hard to imagine that VP presiding over the impeachment trial of former (because resigned) President Trump, free from concerns of partiality.

And yet, if veeps are tainted by concerns of partiality concerning once (and possibly future) Presidents, why wouldn’t the same be true for other senior members of the veep’s party? If Senator Elizabeth Warren (who, like Kamala Harris, ran for President in 2020 and might do so again) were President pro tem, would her presiding create less of an appearance of bias on the part of the public? And, for that matter, if the Republicans controlled the Senate, and Ted Cruz were President pro tem, would not some people be skeptical about his presiding over Trump’s trial, given the very real possibility that he, like Democrats, could be a Trump rival for the White House in 2024 if Trump is not disqualified after an impeachment conviction?

As a matter of reality on the Hill at this point, it appears clear (at least for now) that Chief Justice Roberts will not preside at Trump’s second trial. Roberts himself has said nothing about the matter. But Senate leader Chuck Schumer reported in a television interview with MSNBC’s Rachel Maddow: “The Constitution says the chief justice presides for a sitting president. So it was up to John Roberts whether he wanted to preside with a president who’s no longer sitting — Trump. And he doesn’t want to do it.”

This statement raises some issues of its own. It strikes us as unlikely that Roberts isn’t presiding because he doesn’t “want” to preside (he might not have wanted to preside the first time around either). More likely is that he concluded the Constitution does not give him that role. We cannot, of course, expect a judicial ruling to that effect: there is no case before the Court that could easily generate such a ruling. Nonetheless, it would be helpful—if senators have approached Roberts about presiding or he has independently conveyed his own position to the Senate—for Roberts to issue a public statement announcing his position—in the same way judges (and occasionally justices) issue statements on their recusal decisions.

Schumer’s comment raises a further intriguing possibility: while the Chief Justice “shall”—that is must—preside when the President is tried, perhaps the Constitution does not prohibit the Chief Justice from presiding in other circumstances. In other words, perhaps the Chief Justice may preside if the Senate invites him and he accepts the invitation (and perhaps if the Vice President agrees to step aside). We don’t know if Roberts sees things that way (we also don’t know if the Senate even invited him)—a further reason a statement from him would be helpful.

Bruce Ackerman has recently written that Roberts must not preside because doing so would distract him from his important work at the Court and also expose him and the Court to partisan criticism that could undermine respect for the judiciary. In requiring the Chief Justice to preside at least when a sitting President is tried, the Constitution itself rejects those concerns. But there remains a kernel of relevance to Ackerman’s observations. It is possible that a future case involving Trump’s impeachment and trial result could reach the Supreme Court (say because the Senate convicts Trump and bars him from future public office and state election officials refuse to include his name on ballots when he makes a 2024 run for the White House and he brings a lawsuit). If Roberts has participated in the impeachment trial he would face considerable pressure to recuse himself from hearing the case. A non-role for the Chief Justice in the Senate today thus allows for his full participation at the Court down the road.

We recognize here that the likelihood of the Supreme Court deciding the merits of a challenge to an impeachment trial and result is low—but it is not zero. One bar is the Court’s 1993 decision in Nixon v. United States. In that case, federal Judge Walter Nixon (criminally convicted of making false statements to a grand jury and sentenced to prison) argued that his conviction by the Senate on articles of impeachment was unconstitutional because the entire Senate had not participated in evidentiary hearings that preceded the Senate’s vote. In rejecting Nixon’s challenge, the Court said: “Before we reach the merits of [Nixon’s] claim, we must decide whether it is ‘justiciable,’ that is, whether it is a claim that may be resolved by the courts. We conclude that it is not.” Based on this statement, many observers view Nixon to hold that judicial review of impeachment is simply never available. But as we have explained elsewhere, that isn’t right because the Nixon Court itself went on to say that the Senate procedure did not violate the Constitution.

Vice President Harris has also not explained why she will not be presiding. Professor Ackerman writes that it would be even more problematic for her to preside than it would the Chief Justice because Harris won office in the very election Trump has called rigged—and so if she is the one resolving evidentiary challenges or other procedural matters the trial will appear (especially to Trump’s supporters) partisan. But that reasoning clearly can’t work. If the President pro tem happened to have been up for (successful) re-election in 2020, would that Senator be disqualified by virtue of having benefitted from the very election in question? And what of all the Senators who were elected or re-elected last November? Are they disqualified from serving as Senate “jurors” because they don’t want to call their own election into doubt? If Ackerman is right in his description of Harris’s disability, none of the thirty-five senators just elected or re-elected can preside.

And if Harris is conflicted because she has been a harsh critic of Trump, that too cuts too broadly. Leahy has been a vocal detractor of Trump and—and here’s the problem with two trials—he voted, along with every other Democratic senator (Harris included), to convict Trump (and thereby remove him from office) in 2019. Leahy hasn’t announced any plans to run for the White House. But he is up for reelection to the Senate in 2022 and even if (as is likely) his own seat is safely Democratic, Trump’s influence in the mid-term elections could affect the overall balance of power in Washington. The point isn’t that Leahy is thereby ineligible to preside (all senators have political interests even as the Constitution makes them impeachment jurors). It’s that if Harris shouldn’t, it’s hard to see why Leahy should.

Still, if impartiality concerns suggest both Harris and Leahy should step aside (and Roberts isn’t game), what options remain? As noted earlier, if the concern is presidential ambitions, that cuts quite broadly. And arguably the only way out is that the task must fall to senators ineligible to hold office as President (or Vice President). By our count, that leaves one person, the sole senator not a U.S. citizen at birth and therefore ineligible to serve as President: Mazie Hirono, Democrat from Hawaii. We doubt Trump supporters would find that fair.

But one last pitch for the Chief Justice. Under the Constitution, conviction requires removal from office—a penalty of no practical relevance to a former President. But the Senate also has power to impose an additional penalty of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” (Indeed, that power is the strongest textual argument to support the Senate’s power to hold a trial after someone has left office at all.) Democrats would like to bar Trump on this basis from running again in 2024. There are some tricky questions about how the disqualification clause operates (for example, does it require a two-thirds vote of the Senate as to convict or just a simple majority?) and how far it extends (to which offices does it apply?) but we’ll set those aside. The prospect of a Senate trial resulting in a former President barred from serving again as President (the Democrats’ goal here) seems to us to weigh in favor of a reading that the Chief Justice should preside later this month. Trump is not just a former President. He is a former President who sought and may well seek again—in November of 2023—a second term in office. An intervening trial under those circumstances—and particularly on an article of impeachment approved when Trump was still President—seems to us to present a strong case for the Chief Justice to preside. Alternatively, the absence of the Chief Justice might create some question about the legitimacy of imposing the disqualification remedy. Indeed, since our view is that technically neither the Vice President nor any of the Senators has a conflict of interest that, in the constitutional sense, would disqualify that person from presiding if the Senate so desired, the question really comes down to optics and perceptions. And since nothing in the Constitution forbids the Chief Justice from presiding (even if it doesn’t require him to do so—a question we think, as noted above, could be argued both ways), then inviting the Chief to do it could be a smart move. If the Democrats really want to bar Trump from running again, perhaps they should go out of their way to deflect as many conflict-of-interest concerns as they can.

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