A quick thought on Justice Roberts and Trump's second impeachment trial


Officially, neither Chief Justice John Roberts nor the Supreme Court has commented on the fact that the chief justice will not preside over former president Donald Trump’s second Senate impeachment trial, set to begin in two weeks. Roberts, of course, sat on Trump’s first impeachment trial a year ago, while the latter was president.

Senator Patrick Leahy, the Vermont Democrat whose seniority has landed him in the position of the Senate’s president pro tempore, will preside. The senator made no allusion to the chief justice in a statement he issued about the trial. He observed (among other things) that “the president pro tempore has historically presided over Senate impeachment trials of non-presidents.”

Nevertheless, it appears that there was some outreach from the Senate to the chief justice, who demurred. According to the New York Times, Senate majority leader Chuck Schumer (D., N.Y.) “said Chief Justice Roberts was uninterested in reprising a time-consuming role that would insert him and the Supreme Court into the political fight over Mr. Trump.” How exactly Roberts made his uninterest known to Schumer is not explained.

As I’ve previously noted, the Constitution (Article I, Section 3) states: “When the President of the United States is tried [by the Senate for impeachment], the Chief Justice shall preside[.]” Trump is no longer president of the United States; ergo, under a narrow but commonsense construction of this provision, the mandate that the chief justice preside over presidential impeachment trials does not apply. Nothing more needed to be said, even though it would certainly have been preferable for Chief Justice Roberts to explain his reasoning in a formal written opinion — particularly if he was in fact asked and, upon consideration, declined.

For now, we’ll have to content ourselves with a fleeting reference in the Times to some back-channel communication.

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