The Constitution says “[w]hen the President of the United States is tried, the Chief Justice shall preside” — but Trump will not be “the President” during the upcoming trial. If Roberts refuses to preside at upcoming Senate trial as beyond his constitutional authority — as he should — that will render the “impeachment” trial not an “impeachment” trial at all.
Donald Trump no longer will be president as of noon on January 20, 2021, when Joe Biden is sworn in. At some point after that, possibly just hours, the Senate under control of Democrats will initiate an impeachment trial of the then-former president.
As detailed in a prior post, there is no constitutional basis for the Senate trying a former president,
Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office.
But there is one question about a trial I had not thought about, and was
raised in a column by Prof. Jonathan Turley.
First, Turley starts by pointing to the weakness of the case against Trump, then goes on to reject the notion that a former president can be tried by the Senate:
Article I [sic – II], Section 4, of the Constitution states that the sole purpose of an impeachment trial is whether “the president, vice president and all civil officers of the United States, shall be removed from office.” While the Senate can later add a disqualification from holding federal office again, that is only after removal is decided — because it is a question of the penalty, not the purpose of the proceeding.
The Constitution refers to a present-tense status of “the president.” That status is key to other provisions bestowing official powers and privileges, which do not linger after leaving office. No one would argue that Trump could continue to exercise those powers once President-elect Biden is sworn in. Yet a Senate trial would insist that, while Trump has no continuing powers, he remains subject to continued penalties tied to the office. Moreover, the stated purpose of the impeachment trial is whether a president “shall be removed.” Thus, the only person constitutionally subject to an impeachment trial would be the sitting president, Joe Biden.
He then debunks a couple of the historical “precedents” many people point to, and raises the issue of whether Chief Justice John Roberts even would preside:
It is unclear, for example, if Chief Justice John Roberts would be called upon to preside. After all, the Constitution stipulates that when “the President of the United States is tried, the Chief Justice shall preside” — but the president will be Biden, not Trump.