The impending second Senate impeachment trial of Donald Trump poses a number of legal, political, and practical issues. One issue flying somewhat under the radar is who will preside. The answer will certainly impact how the trial is perceived and may even affect the outcome.
Chief Justice John Roberts presided over Trump’s first impeachment trial pursuant to Article I, section 3 of the Constitution, which requires the chief justice to assume this role “when the President of the United States is tried.” In the second impeachment, however, Trump will be tried as a private citizen, not as president, thus making this provision inapplicable by its terms. The rationale for having the chief justice preside likewise will not apply. The framers included this provision for the purpose of avoiding the obvious conflict of interest that would arise if an incumbent president’s potential successor, the vice president serving as president of the Senate, presided. This, of course, has no relevance to Trump’s second trial. Kamala Harris, not Mike Pence, will be Vice President and there will be no change in the presidency since removal from office is not on the table.
Without Article I, section 3, there is no apparent legal authority for the chief justice to preside at the impeachment trial. To the contrary, having the head of the judicial branch preside over the Senate except as specifically required by the Constitution would seem to violate the constitutional separation of powers. Finally, even if Roberts somehow could opt to preside if requested by the Senate, he probably would want no part of this exercise and would respectfully decline. With Chief Justice Roberts out of the picture, Vice President Harris would be in line to preside. Alternatively, if the Biden Administration was reluctant to participate directly in this fraught and potentially distracting endeavor, Senate President Pro Tempore Patrick Leahy or another senior Democratic senator could be chosen to officiate.
The above considerations are significant in at least three ways. First, the fact that Article I, section 3 is so incongruent here is another indication that the Constitution was not designed for impeachment of former presidents. Second, substituting a politician for the chief justice as presiding officer will detract from the gravitas and objectivity of the proceeding and fuel the notion that it is a partisan exercise. Third, a trial without the chief justice is considerably more likely to survive a motion to dismiss at the outset on the substantial grounds that an individual who has left office is no longer subject to the impeachment process. The chief justice might well grant such a motion but a Democrat in the chair would almost surely reject it. The presiding officer’s ruling, regardless of who makes it, is subject to reversal by majority vote of the Senate. However, a ruling by the chief justice would doubtless carry greater weight with senators (and the public) than one by a political figure.