May 9, 2021

What Does It Mean that the Chief Justice Won’t Preside?

When President Trump was impeached the first time, Chief Justice Roberts presided over the trial. On February 8th, when Former President Trump has his second impeachment trial, he will not be present. President Pro-Tempore of the Senate Leahy will preside.

This is all irregular, and has many wondering if this trial is even Constitutional:

Biskupic writes that the constitutional text is, “When the President of the United States is impeached, the Chief Justice shall preside,” which obscures the argument Roberts-excluders must make. The actual text is “When the President of the United States is tried, the Chief Justice shall preside.” The argument must be that Trump is no longer the President of the United States, therefore there’s no role for the Chief Justice. That also provides a foundation for an argument that there is now no occasion for a trial of impeachment — impeachment is a procedure for removing the President — and it is an abuse of power for the Senate to try the former President, deprived of the safeguard of the Chief Justice as a neutral arbiter. 

Did Chief Justice John Roberts decline to preside over the Senate trial of the Trump impeachment?

Althouse is saying that the real question is did Roberts decline or wasn’t he asked and what was Roberts’ response? She also believes that it highlights one of the points that a group has been making– impeachment is for removal from office, and Former President Trump is already gone.

Expect to hear this argument next week.

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