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.
The Constitution states, “When the President of the United States is tried the Chief Justice shall preside.” Roberts presided over Trump’s first impeachment trial a year ago, just the third such trial in history.
But what happens when Trump leaves office on Jan. 20 — before the trial starts — and becomes a former president of the United States? Must the chief justice still preside over the trial? Could he choose to do so?
Or does role that fall to the presiding officer of the Senate, the new vice president, Kamala Harris? Or can the Senate have its president pro tempore, at that time Vermont Democratic Sen. Patrick J. Leahy, preside? Or can the Senate pick an alternate presiding officer under a special order?
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.
There’s some incredible timing that raises the question. Ordinarily, the Senate would send an invitation to the chief justice for a trial on the same day it receives a message from the House that the president has been impeached, Majority Leader Mitch McConnell wrote in a memo to Senate Republicans last week.
That would be Jan. 19, when the Senate returns to regular session and Trump is still president. But Trump no longer will be president at noon on Jan. 20, and Senate impeachment rules mean the trial couldn’t start until after he’s left office, McConnell wrote in the memo, obtained by The Washington Post.
“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.
There’s no clear answer in non-presidential impeachments. In 1876, William Belknap, war secretary in the administration of President Ulysses S. Grant, raced to the White House and resigned just minutes before a House vote to impeach him, according to the Senate’s official website.
The House went ahead anyway, and the Senate agreed that it retained impeachment jurisdiction over former government officials and went ahead with the trial. On the other hand, the Senate has dismissed impeachment trials for federal judges who resigned.
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).”
The person presiding over an impeachment trial doesn’t have too substantive a role, anyway. The Senate under past presidential impeachment rules has given relatively little authority to the nation’s top judicial figure.
And in the areas the presiding officer might have authority to make rulings, such as questions about whether evidence is relevant, the rules also allow the Senate to call for a vote to overrule the decision anyway.
In Trump’s first trial, Roberts admonished the lawyers to “remember that they are addressing the world’s greatest deliberative body,” but otherwise made no substantive rulings.
But Roberts could give a nonpartisan appearance to the impeachment trial that Harris or Leahy could not.
“With Roberts in the chair, you'd certainly get less partisan scrutiny and accusations of partisan bias in the conduct of the trial,” Glassman said. “With a Democrat in the chair, presumably the more conservative Republicans defending the president would have that much more ammunition to call it a sham trial, regardless of the way it is conducted.”