Who might preside over former President Trump’s trial in the senate?
Who might preside over former President Trump’s trial in the senate?
This is no longer just a topic for a law school test or a dinner-table trivia discussion, with Senate Majority Leader Charles Schumer (D-N.Y.) announcing today that the House would present its impeachment article on Jan. 25 and insisting that the process will move forward, “Make no mistake, a trial will be held.” It is a serious legal and constitutional matter which, in a matter of days, must be resolved.
The Constitution specifies as follows: “The chief justice shall preside when the president is tried.” But there is only one president of the United States, and Joseph Biden is his name now. The president is no longer Donald Trump. It would also be unethical, and in breach of the Constitution, to make the Supreme Court Chief Justice preside over a courtroom. This is valid regarding the impeachment of Trump when he was still president. The Constitution is explicit: the term ‘tried’ is used.
If Chief Justice John Roberts were to be invited by the Senate to chair Citizen Trump’s trial, Roberts would have to determine whether to accept the invitation. He will study the words of the Constitution, the history of the impeachment clause and any applicable precedents, I predict. He would then conclude that, in the trial of a former president, the Constitution gives him no proper role.
An significant reason why the Constitution granted the chief justice the position of presiding officer only in the case of a sitting president’s Senate trial is that it would constitute a conflict of interest to preside over such a trial for the president of the Senate, the vice president of the United States. The vice president would, after all, assume office if the president were to be replaced. So the Framers appointed a non-political judicial official as the presiding officer for such a trial who was not in the line of succession to the presidency.
This dispute, however, when a former president is on trial, does not occur, at least not explicitly. If Chief Justice Roberts were to decline that position, who, then, would preside over Trump’s trial?
Vice President Kamala Harris will preside over the usual course of events, as she has the constitutional position of Senate President. But the vice president, too, may have a conflict of interest in this case. It is definitely probable that, in 2024, she will run for president. President Biden would then be 82 years old, and he will probably not be seeking reelection. His vice president will be the most obvious Democratic nominee to replace him. For a future candidate to preside over a trial whose only real function is to keep a former president from running again in 2024, wouldn’t it be a conflict of interest?
In addition to real bias, conflicts of interest often include the perception of prejudice. Wouldn’t it seem to be a conflict of interest for Harris to make decisions about a leading potential candidate’s disqualification against her?
So, if not presided over by the chief justice and the vice president, who should, and how should, make that decision? There is no such procedure provided for by the Constitution. Presumably, a presiding officer would be chosen by the senators themselves or the majority leader would nominate one. Since Democrats dominate the Senate now, with every tie-breaking vote being cast by the vice president, that too would create an impression of conflict.
The main argument is that a Senate trial of a former or a possible future president was never considered by the Framers. They would have had an answer to the question of who presides, had they found such a bizarre situation. That they did not have additional evidence, beyond the words of the Constitution, that the Senate should not try a former president.
It would also constitute a bill of attainer to put a private citizen on trial in the Senate, which is specifically forbidden by the Constitution’s text. An attainer’s bill is any statutory trial of a single person that may lead to punishment (including future disqualification from running for federal office). Citizen Trump’s Senate trial will easily suit the description.
The now-weaponized cliché that “No one is above the law” is frequently heard. This is not only true of a president, but also of Congress. In impeachment and expulsion trials, the Constitution provides for a special oath to be taken by senators: “When sitting for that purpose, they shall be on oath or affirmation.” The oath requires a pledge to comply with the Constitution’s limits. These restrictions include not bringing on trial private people. So the legislation and the Constitution should not be above the Senate itself.
In this case, Congress should do as it did when President Nixon was forced to step down and leave the presidency: it should not do anything. With regard to an impeached former president, that is its proper position.
During the Senate impeachment hearings, Alan Dershowitz, Professor emeritus at Harvard Law School, served on the legal team defending President Trump. He is the author of the new book “Cancel Culture: The Latest Attack on Free Speech and Due Process” and his Spotify and YouTube podcast “The Dershow” is now also available.
