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Monday, January 25, 2021

Senator Leahy Presiding

The Washington Post has a story up saying that Senator Leahy will preside over the Senate trial. I'm not sure if a President Pro Tempore has ever presided over an impeachment trial before, though it's possible. This still leaves open the issue I flagged in a prior post: How will this decision be explained? Will the Senate say that they decided that the Chief Justice cannot preside or just need not? And will the Chief say anything about this?

UPDATE: Senator Leahy's statement says that the President Pro Tempore traditionally presides over impeachment trials. I think this is largely true, though Aaron Burr as Vice President presided over the trial of Justice Samuel Chase. It also appears that the President Pro Tempore is not required to abstain from the final vote on guilt or innocence, as I see at least one example where one did vote guilty.

Posted by Gerard Magliocca on January 25, 2021 at 02:07 PM | Permalink


It's unclear to me what exactly a presiding officer realistically does to change the fairness of the trial overall. The person has a symbolic function but doesn't really make any key decisions. Any "questions" to me don't really amount to much though personally I rather Roberts there if only for the marginal benefit it could provide.

Roberts presiding would take a talking point away from Republicans but he wouldn't affect the trial much at all really. The same evidence and appeals will be provided, the same final result. A 50-50 Senate complicates things if a presiding officer doesn't break a tie, but let's simply and say there are 52 Dems. Any decision by the chair can be overruled.

Plus, this would suggest other trials wasn't fair. Let's say a key executive officer or even member of the Supreme Court is impeached. Even a swing vote.

If removed, it could really benefit one party.

Posted by: Joe | Feb 1, 2021 2:53:09 PM

As I pointed out in a WASHINGTON EXAMINER article entitled “Leahy Impeachment Role Raises Questions About Trump Trial Fairness” [https://washex.am/3ojYAzG]:

“But Leahy’s tenure as a prominent Democrat and vocal Trump critic raises questions about the impartiality of the Trump impeachment trial, one legal scholar said. ‘Sen. Leahy is the member of the political party which would clearly benefit if Trump were unable to run for president in 2024 as he has suggested he will,’ George Washington University Law School professor John Banzhaf said Monday.

My concerns about conflicts of interest were spelled out in greater detail in:
Impeachment – Senator Leahy Presiding May Undercut Legitimacy; Democrat Presiding Suspect, Raises Clear Issues of Conflict of Interest [ https://bit.ly/3qPO8RS ]

Posted by: LawProf John Banzhaf | Jan 26, 2021 11:08:35 PM

I think Roberts should have made a public statement on his decision.

Hearing his feelings secondhand here is a tad off to me personally.

Posted by: Joe | Jan 26, 2021 11:39:17 AM

OK, per NPR, although it's not clear if they're relaying what someone else said, and if so, who said it, (1) there's no requirement for the Chief to preside when it's not the current Prez and (2) the Chief subtly got the message out that he wasn't interested in volunteering either.

That pretty much lines up with what I've been saying. I'm guessing no further explanation will be forthcoming.


Posted by: hardreaders | Jan 25, 2021 5:25:44 PM

Between the Chief being forbidden from presiding or it just not being advisable for prudential reasons, I think it has to be the latter. I'm no scholar on this topic, but the text alone seems pretty clear. Once you take the position—which I think is quite sensible—that the obligation for the Chief to preside only applies to the *current* Prez, then it seems like the Senate has total discretion to choose a presiding officer in all other cases, even including that of a former Prez. Of course, nothing would seem to prevent to the Senate from deciding on the Chief anyway, but why do that when perfectly good alternatives are available, like here (Leahy).

Aldo Reine also hints at a possible recusal issue when the Chief participates voluntarily. Again, I'm no scholar, but is that a strong possibility? Would the Chief have to recuse if he were to preside, mandatorily, over a trial of a current Prez? That seems weird that doing something constitutionally required would lead to a later recusal. If that's right, then there should be even less reason to recuse for presiding over a former Prez's trial.

Finally, I'm not sure why there is any reason the Senate has to explain itself at all. It doesn't seem like there would be much benefit to doing that. Maybe Trump and/or the Senate Rs are going to object—presumably on the grounds it should be the Chief? If so, fine, but let them object first. There seems to be no need to stake out a position beforehand.

Posted by: hardreaders | Jan 25, 2021 5:17:22 PM

Sen. Robert Byrd presided over the Walter Nixon impeachment (I testified in the case, before House Judiciary).

Posted by: Steven Lubet | Jan 25, 2021 4:40:01 PM

Hereby(CNN) Leahy is quoted concerning the impeachment to come. Yet, doesn't provide real explanation why not chief justice Roberts:


Posted by: El roam | Jan 25, 2021 3:12:48 PM

Maybe the Chief is not presiding because the constitutionality of the trial may eventually come before the Supreme Count

Posted by: Aldo Reine | Jan 25, 2021 2:57:50 PM

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