If Roberts refuses to perform his duty, then it’s time for him to go.

(Photo by Alex Wong/Getty Images)

Earlier today, we learned that Senator Patrick Leahy, President Pro Tempore of the Senate and man who is not intimidated by thugs, will preside over the second impeachment trial of Donald Trump instead of Chief Justice John Roberts. The announcement confused anyone with a passing familiarity with the Constitution since impeachment trials of presidents are explicitly to be presided over by the Chief Justice of the United States. And yet, according to a source close to Leahy cited in The Hill, Leahy will be taking on the role of judge per a working agreement between Chuck Schumer and Mitch McConnell.

Why do these Senate leaders get to bypass constitutional text? It’s unclear, but apparently Roberts is on board with this move, which frankly raises the question of whether or not Roberts is abdicating his constitutional responsibilities, an action which would justify his own removal.

The Constitution doesn’t offer a lot of guidance on the subject of impeachment, but one of the few concrete requirements it provides is that the Chief Justice preside over the trial of the President:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The sticking point in this impeachment seems to depend on what the meaning of the word “the” is just as a past impeachment turned on what the meaning of the word “is” is. The Chief Justice must preside “[w]hen THE President of the United States is tried….” Trump is certainly “a” President of the United States, but is not presently “the” President.

First, let’s dispense with the disingenuous argument that a former president can’t be tried under articles of impeachment. Misguided corners of the Twittersphere, urged on by some cynical legal analysts, cite the language “Judgment in Cases of Impeachment shall not extend further than to removal from Office,” to suggest that this remedy is unavailable after a president leaves office. But this reading would ignore the rest of the sentence “and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” or the subsequent clause “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Taken together as a cohesive sentence, the text says the Senate can’t put an official in jail, only remove them and/or disqualify them, and a separate legal proceeding would be needed to incur further punishment.

If disqualification is an acceptable sentence upon Senate conviction, that would be support an impeachment of a former president. Which tracks what the Framers were actually talking about when they chose these words.

So how does Roberts get out of this?

The argument, one assumes, will be that the purpose of the requirement that the Chief Justice preside over the trial of the president — while the nation’s top jurist does not preside over trials of lesser officers — is a function of avoiding a conflict of interest. The argument would be that the Constitution provides for the Chief Justice to take on this role because vesting the Vice President with this duty knowing that a conviction would result in the fattest of all promotions would breach common ethical strictures. If that’s the purpose of the language, then Roberts isn’t required now that a conviction wouldn’t inure to the benefit of the presiding officer.

But that only holds in any case if the Vice President handles the job. If it can be pawned off on the President Pro Tempore then there would never be a reason for the Chief to perform the task. That’s why the provision has to be read as more than a check on conflicts of interest. The text calls for the Chief Justice to preside because of the gravity of a prosecution of the President of the United States — full stop.

Senators on both sides of the aisle seem to viscerally agree, though for different reasons.

“If the chief justice doesn’t preside, I think it’s an illegitimate hearing and really goes to show that it’s not really constitutional to impeach someone who’s not president,” said Sen. Rand Paul (R-Ky.).

Republicans are using this move to downplay the seriousness of the trial. You know, just a petty show trial over the frivolous issue of “a chief executive sending an armed mob to murder the Vice President.”

“That is his constitutional duty. I can’t imagine why a Supreme Court justice would not do his duty,” said Sen. Elizabeth Warren (D-Mass.).

Indeed! And, frankly, this is where the House needs to turn its ire next. The Constitution isn’t clear on what “other high Crimes and Misdemeanors” means, but past official legal analysis of the question has settled on “behavior incompatible with the function and purpose of the office” as qualification for removal. It’s hard to imagine a more incompatible action for the Chief Justice of the United States than refusing to perform the constitutional duties of the Chief Justice of the United States. It’s such a profound act of disrespect toward the legislative branch and the Constitution itself to call into question his moral authority to remain atop the judicial branch.

The House probably won’t impeach Roberts over this and the Senate wouldn’t convict him in any event, but I’m not typing these words lightly. If the Chief refuses to perform one of the very few tasks of the job that’s explicitly spelled out in the Constitution then he should not continue to serve in that job. Most of what the justices do isn’t in the nation’s founding document, but if the Chief Justice takes his duties under Marbury v. Madison more seriously than his duties under the Constitution then the country needs a new chief justice.

Leahy, not Roberts, to preside over impeachment trial [The Hill]


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.