“When the President of the United States is tried, the Chief Justice shall preside.”
Since the nation’s founding, these words embedded in the US Constitution have always been understood as an exception to the general rule: When the Senate has tried federal judges or other officials for high crimes and misdemeanors, the chief justice of the United States has never presided over the proceedings. This will require John Roberts to confront an unprecedented problem in constitutional interpretation: Since Donald Trump is no longer president, does the text require him to preside over the coming trial?
Roberts could reasonably conclude that he should refuse to serve. If he recuses himself, the Constitution designates the vice president as the presiding officer of all Senate proceedings, including impeachments. By allowing Vice President Kamala Harris to take his place, Roberts would be in a position to continue to take an active role in all the hot-button cases pending on his court’s docket.
Even if the Senate sits for only a few hours a day, serving as presiding officer would be a full-time job. Both Trump’s lawyers and the House managers would call on Roberts to rule on a host of complex evidentiary issues. As a consequence, he won’t have enough time to join his fellow justices in a serious discussion of pending cases, and would be obliged recuse himself from their decision — depriving his colleagues of his thoughtful counsel at a critical time in the life of the Republic.
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A second factor points in the same direction. During the first impeachment trial, Roberts could rely on then-Senate majority leader Mitch McConnell to take on the principal job of organizing the conduct of the proceedings. But the second time around, the Senate will often split 50-50 when Trump’s lawyers, or the House managers, try to exclude evidence that their opponents condemn as “fake news.” In such cases, the Constitution authorizes Roberts to break the tie — making the chief justice the object of bitter condemnation on the Senate floor and from partisans on the left and the right.
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In refusing to take on this assignment, Roberts would not merely be protecting his personal reputation. Over the past few weeks, the federal courts have been crucial in protecting the integrity of the electoral process — rejecting more than 40 efforts by the Trump team to support their claims of a “stolen election.” By representing the Supreme Court at the Senate trial and bearing the brunt of partisan attack, he would undermine the judiciary’s effort to redeem John Marshall’s vision of a court that could gain broad public support in its efforts to prevent the political branches from abusing their constitutional authority.
To be sure, this point would be irrelevant if the Constitution explicitly required him to preside over Trump’s trial even after Joe Biden took the oath of office. But the text requires Roberts’s presence only when the Senate is judging the “president of the United States,” and Trump’s departure from the White House will transform him into an ordinary citizen whose constitutional status is no different from other Americans.
This means that there is much less at stake this time around. Although the removal of a sitting president has shattering consequences, this second trial will, at most, lead to a single important result. If Trump were finally convicted by a two-thirds majority, a simple majority could then vote to disqualify him from serving another presidential term for the rest of his life.
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This, of course, would be an important step. But at most, it is only a possibility, since 17 Republicans would have to join the Democrats before presidential disqualification can even get on the agenda.
If Roberts does indeed recuse himself, it will be up to Harris to make the next critical decision. Except for the impeachment of presidents, the Constitution designates the vice president as the presiding officer of the Senate on all matters, and it explicitly grants Harris the authority to break all tie votes. But in contrast to Roberts, Harris has gained her position as a result of the very election that Trump is condemning as “rigged.” It would be even more inappropriate for the evidence submitted by Trump’s lawyers to be judged by a triumphant member of the Biden team. Whenever she disqualified their so-called evidence as fact-free, it will become that much harder for Biden to succeed in “bringing all Americans together.”
Senate rules provide a way out of Harris’s dilemma. To understand why, keep in mind that the Constitution authorizes the impeachment of “all civil officers of the United States,” not only sitting presidents. When federal judges and other officials have been impeached by the House, moreover, the Senate doesn’t do all the fact-finding on its own. Instead, after hearing the House managers and defense lawyers give an initial presentation of their positions, the full Senate delegates the tough work of fact-finding to a special committee. In this case, the Judiciary Committee is the best group to take on the job. The committee’s 22 seats will probably be divided equally between Democrats and Republicans, and its membership includes outstanding lawyers who are leading moderates from both parties. There is every reason to expect them to take their fact-finding responsibilities seriously and reach a bipartisan judgment on Trump’s culpability. Even if they can’t reach consensus, and come up with rival reports reaching opposing conclusions, each side will have devoted a lot of time and energy into making their case persuasive to a broad public.
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It is only then that the full Senate reenters the story. This is when the committee announces its conclusions to the Senate, which then hears final arguments by Trump’s lawyers and the House managers before they debate and vote on the Judiciary Committee’s (possibly competing) findings. Since the committee has done the hard work, there would be no need for Harris to rule on contested evidentiary matters. She would simply preside impartially to assure that both Democratic and Republican debaters comply with the time limitations provided by Senate rules before coming to a final judgment on Trump’s culpability. It is only if the Senate splits 50-50 on the ultimate question of guilt that the Constitution would require Harris to break the tie. But given the extent to which Trump has discredited himself during his last days in office, this scenario seems extremely unlikely. Even then, Harris’s tiebreaker wouldn’t prevent Trump’s acquittal, since 51-50 doesn’t add up to the two-thirds vote required for his conviction.
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What is more, this relatively dispassionate and bipartisan decision on Trump’s incitement of the deadly attack on the US Capitol will set a crucial precedent. In the future, some other president may well face a hostile Congress after he or she is defeated for reelection. The way Roberts and Harris resolve their current constitutional dilemmas will shape the future course of the Republic for generations to come.
Bruce Ackerman is a professor of law and political science at Yale and the author of “We the People.”
