I am concerned about CJ Roberts not presiding over the impeachment trial.

[TomSlick]

I have read several stories about CJ Roberts not presiding over the upcoming impeachment trial. I have seen references to CJ Roberts not wanting the job. What I cannot find is whether CJ Roberts affirmatively declined to preside. According to CNN, both CJ Roberts and Senate pro temp Leahy are declining to answer the question.

I understand the argument that since Trump is not the current president, the constitutional requirement that the CJ preside over impeachment trials does not apply. I am uncertain of that argument. Moreover, it undermines the argument in response to the Trumpster's argument that an impeachment of a former President is somehow improper that the Senate trial is a continuation of an impeachment process that began in the House while Trump was still President

I think that CJ Roberts should recuse from the impeachment trial because it seems likely that, at some point or other, Trump will challenge the constitutionality of the impeachment trial. However, I hope CJ Roberts was invited to preside and affirmatively declined.

[hlthe2b]

1. Precedent. No Excutive Official impeached after leaving office has had a Chief Justice officiate.

Only a Senator--typically the Senate President Pro Tempore, as will be the case with SPPT Leahy.

[StarfishSaver]

4. Except in three previous impeachments, no Chief Justice presided over ANY impeachment trial

Chief Justices preside only when a president is being tried for impeachment. That has happened only three times in history.

[hlthe2b]

6. I just said that.

[StarfishSaver]

9. No, that's NOT what you said

You said: "No Excutive Official impeached after leaving officehas had a Chief Justice officiate." Your comment was limited the few cases in which someone was impeached after they left office.

I responded by pointing out that, except for three presidents, no executive official at all (whether impeached before or after leaving office) has had a Chief Justice officiate.

We didn't say the same thing.

[hlthe2b]

14. The two are mutually exclusive. If you only think through.

Bonne nuit.

[StarfishSaver]

25. So, I didn't repeat what you said, after all

Glad we cleared that up.

Lala salama.

[SheltieLover]

7. Do you expectdump to be subpoenad to testify?

[StarfishSaver]

11. Yes.

He'll probably refuse, though.

But he's also narcissistic enough to think he can match wits with the Democrats and not incriminate himself, so who knows?

[SheltieLover]

15. Oh, Karma...

Please please please!

Ty, Starfish!

[SheltieLover]

16. Can they lock him up for refusing?

Begging karma again!

[StarfishSaver]

19. No.

He can't be forced to testify.

[SheltieLover]

23. Goddammit!

Because he once played "daddy" to country?

Guessing if it were anyone else, it would be a different story.

Ty!

[StarfishSaver]

26. That's not the reason

He can't be forced to be a witness against himself and any testimony he gives in the Senate trial could incriminate him. He can invoke the Fifth Amendment.

[SheltieLover]

27. Ty!

Bp just dropped!

Forcing him to take 5th would be very painful for voldermort!

Does he have to show up go take 5th? Fingers crossed!

Ty!!!

[Laelth]

21. No. Essentially, he's a coward.

He doesn’t want to testify, and he won’t testify if he can possibly avoid it.

-Laelth

[SheltieLover]

24. Let's hope his need for attention takes over

[EarlG]

2. Chief Justice only presides over the impeachment trial of the president

Last edited Mon Jan 25, 2021, 10:53 PM - Edit history (1)

Trump is no longer president, ergo CJ does not preside.

It’s completely normal.

https://www.democraticunderground.com/100215006185

[TomSlick]

10. I understand the argument. The problem is there is no precedent - either way.

Article I, Section 3 of the Constitution provides: "When the President of the United States is tried the Chief Justice shall preside...." When Trump was impeached (by the House), he was the President. The Senate trial is a continuation of that process.

If CJ Roberts was not offered the job, it bolsters arguments that the Senate trial is improper.

I see no reason that the CJ should not be offered the opportunity to preside. If he declines (as I think he should), then the Senate should proceed with the pro temp in the chair.

As a believer in the belt-and-suspender practice of law, I would prefer to avoid this issue by inviting CJ Roberts the opportunity to preside and hope he declines.

[StarfishSaver]

28. Schumer just said the Senate asked Roberts to preside and he declined.

[StarfishSaver]

31. The Chief Justice is required to preside if it's the president being tried

But he is not prohibited from presiding over any other impeachment trial, including that of a former president.

[EarlG]

36. Fair enough

Looks like Roberts was given the option and chose not to take part...

[servermsh]

3. I have no concerns. It is 100% the correct decision. I hope the Senate didn't ask him.

Why should they? The trial is of a former Federal official, not the President. It couldn't be more clear.

[TomSlick]

13. See post 10 above.

I have learned through the years that when someone tells me the law is clear, it probably isn't.

[StarfishSaver]

33. The Chief Justice is required to preside over the impeachment trial of a sitting president

But he is not prohibited from presiding over the trial of anyone else. If he is asked and he agrees, there is no reason he couldn't preside over the impeachment trial of a former president.

In this instance, according to Chuck Schumer, Roberts was asked to preside and declined.

All good.

[Fiendish Thingy]

5. I'm not- Leahy is less likely to put up with GOP shenanigans. Nt

[The Velveteen Ocelot]

8. Under the Senate rules the Chief Justice presides only over trials of presidents.

Trump is not the president. If the trial is of anyone other than the president, the presiding officer of the senate does it, and this will be the president pro tem of the senate. This is just the normal rule and it has nothing to do with whether the trial will go to the Supreme Court, which it probably won't anyhow because the Constitution gives it no role in impeachments. Other officials have been convicted in impeachment trials after leaving office without challenge (look up William Belknap), so there is not likely to be any question about the constitutionality of that process. Even the Federalist Society thinks it's OK.

[TomSlick]

12. See post 10 above.

[The Velveteen Ocelot]

18. "When the President of the United States is *tried* the Chief Justice shall preside...."

It doesn't matter that the impeachment by the House occurred while Trump was president. He is not the president now, and therefore he will not be the president when he is tried. Therefore someone other than the Chief Justice will be the presiding officer. The rule was created only to preclude the possibility of a vice president (who could be the presiding officer) presiding over their own trial, or over a trial that might result in him becoming president if the impeached president is convicted. If a non-president is being tried there's no possibility of that conflict of interest and therefore no need for the CJ to be the presiding officer.

[TomSlick]

20. That's a good point.

The VP should not preside in a Senate trial that could result in him/her becoming President.

I need to search the Federalist Papers to see if there is any reference to why the CJ presides in cases against the President.

At a minimum, you have made me feel some better about things.

[TomSlick]

34. Federalist Papers 65 and 66 (both by Hamilton) deal with impeachment.

In FP 65, Hamilton argues having the CJ preside as being a good combination of the legislative and judicial branches in cases of impeachment. There is no reference to the CJ presiding to avoid having the VP preside over a proceeding from which they might benefit.

I think you make a good point. The VP ought not preside in a case in which a sitting President might be removed. However, based on FP 65 and 66, it is not clear that avoiding that problem is the reason for having the CJ preside.

Sen. Schumer just said on Rachel that CJ Roberts did not want the job. I will assume his statement is based on communications from the CJ. In which case, my concerns are resolved. It has been an interesting academic discussion but it is apparently moot.

[The Velveteen Ocelot]

35. What matters is what the Constitution says, not what Hamilton was thinking.

The Constitution and the Senate rules are very clear. Since the conflict of interest inherent in having the VP (the usual presiding officer) manage a trial of himself, or of the president (where the VP would become president if the president being tried is convicted), does not exist where the person on trial is the ex-president, the CJ is not needed. It might have been that they floated the idea to him only so as to avoid accusations of bias. But there's no question that the Constitution and the Senate rules provide that the CJ is the presiding officer where the trial is of a sitting president or vice president. The CJ has been the presiding officer only in three previous impeachment trials, and those were of sitting presidents - Andrew Johnson, Clinton and Trump #1.

[TomSlick]

37. Sure. But SCOTUS often looks to the Federalist Papers in parsing the Constitution.

I was simply reporting back that the Federalist Papers were of help in this question, so we agree that the language of the Constitution controls. The Senate Rules would be interesting but only to the point they do not conflict with the Constitution.

The prior impeachments are of little precedential value in considering a first-ever Senate impeachment proceeding for a former President.

The Constitution does not say the CJ presides over the trial of a sitting President - it only says the CJ presides over the trial of "the" President. Of course, there is only one "the" President but, again, Trump was "the" President when the House impeached.

If, as I hope, the Senate not only convicts but bars Trump from holding office in the future, we may expect Trump to challenge that determination. I have little confidence how the current SCOTUS would rule.

Fortunately, with Schumer's assurance the CJ has declined to serve, it' a moot point.

[Tommy_Carcetti]

22. But if he was impeached while President...

...and the trial took place only after he left
office, should the Chief Justice still preside since the impeachment charges were levied at a time when he was still President?

Since a impeachment trial is not a criminal trial and the due process concerns aren’t as much of an issue, all of this is probably just a formality.

Still I understand the concerns of the OP—having the Chief Justice preside if he so wishes would buffer against charges of partisanship. Which itself is a bit of an illusion but still.

[The Velveteen Ocelot]

29. That's not what the constitution says.

Sen. Schumer just now explained this situation on Rachel Maddow's show. I assume he knows whereof he speaks.

[PoliticAverse]

17. "I am uncertain of that argument." - I'm pretty certain Trump isn't President. n/t

[spooky3]

30. Schumer just told Rachel Maddow that Roberts did not want to preside. nt

[TomSlick]

32. I saw that and it helps.

Being a careful lawyer, I hope it's documented.