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Saturday, January 16, 2021

Who Decides Who Presides?

This is uncertainty about who will preside over the Senate impeachment trial. Chief Justice Roberts, Vice President Harris, and Senator Leahy are all candidates. My initial question is who decides this when there is doubt?

One thought is that Chief Justice Roberts decides. If he thinks that he can preside and decides that he wants to do so, then he does. A second thought is that the Senate decides. If they do not invite the Chief Justice to preside, then he cannot do so. If they do, then he must. A third thought is the Senate and the Chief Justice must agree that he can and should preside for him to do so. If not, then the Senate must go with the Vice President. Then if she recuses, they must go with Senator Leahy.

Here's why this matters. Suppose the Chief Justice does not preside. Under the first theory, he should explain why decided not to do so. Otherwise, people could reasonably construe his absence as his conclusion that the Senate cannot hold an impeachment trial of an ex-President. Under the second theory, he need not say anything. If the Senate does not ask him to preside, then that the reason for his absence. Under the third theory, the Senate's lack of invitation would still be sufficient and he can be silent. (Note that the Senate will probably not invite him in this instance without first asking if he will accept. That way, there need be no disagreement between them.)

I'm not sure which of these three theories is correct. I'm inclined to say the third one. The Senate has the sole power of impeachment, which must include some power over determining the presiding officer in doubtful cases. At the same time, I'm not sure that the Chief Justice must accept the Senate's view of his own duty to preside if he thinks that the trial is unconstitutional. 

Posted by Gerard Magliocca on January 16, 2021 at 07:43 PM | Permalink


Ordinarily, the Vice President is president of the Senate, art. I, § 3, cl. 4, or the president pro tempore presides in her absence under clause 5. But, "When the President of the United States is tried, the Chief Justice shall preside," cl. 6.

Trump won't be, at the time of trial, the President. So, textually, there's no basis for the Chief Justice presiding.

This reading is logical. Having the Chief Justice presiding avoids the bias that might come from the loyalty of a Vice President to the President, or the conflict of interest that might come from having a Vice President aspire to the presidency by convicting the President.

When the text is clear and the clear interpretation fits with a logical purpose, why go elsewhere?

Posted by: Greg Sergienko | Jan 18, 2021 12:04:21 PM

Now per WSJ (via How Appealing), Senate Rs apparently plan to argue that "jurisdiction" is lacking once Trump is out of office. So that will provide some cover (in their minds at least) to support an acquittal vote. I figured as much was in the works once McConnell announced the trial was being put off. The chef's kiss will be when they blame it on Ds anyway for being dilatory in the first place.

Posted by: hardreaders | Jan 17, 2021 6:09:08 PM

I would gather the decision is final, at most, Trump having a chance to try to appeal it in federal court. Then, it will truly be final.

Supreme law of the land and all that. Seems a big stretch for the state to second guess four years later.

The due process issue was basically decided in a 1990s case though of course Trump can try to get the Supreme Court to decide it again. The Supreme Court said the Senate had sole power to try, due process issues not up to the courts (or state election laws) to decide.

One might wish to consider the somewhat ironic role of Congress in January 2025 if a clearly illegitimate candidate [be it a convicted and disqualified Trump or someone 34 or whatever] received enough electoral votes pursuant to state election laws.

Posted by: Joe | Jan 17, 2021 5:07:30 PM

Lots of people may get to decide who should have presided. Suppose that following trial, the Senate orders that he is ineligible for future office (senators voting to convict implicitly decided that the trial was fairly conducted)a. Trump starts running for the 2024 nomination anyway, arguing that the wrong officer presided at trial so the Senate verdict is void.* State Secretaries of State, or State Election Boards, or the State Republican Party, depending on the state, decide whether he will be on the primary or caucus ballot. Any of their decisions can be appealed to either state or federal court, subject to many standing-related defenses and subject to whether anyone wants to appeal. Maybe the Supreme Court issues a clear decision, maybe it doesn't, maybe some state courts based their decisions on state law that the Supreme Court can't overturn.

If he's on the ballot, primary voters can decide whether he is eligible.

If he wins any delegates to the Republican convention, there may be more litigation on eligibility before the Republican National Committee in different courts. If he wins the Republican nomination, 51 different entities again will decide whether he is eligible for the general election ballot, again based on a mix of state and federal law and again subject to appeals. Where he gets on the ballot, voters decide whether he is eligible.

If he wins any electoral college votes, the electoral college delegates will have to decide whether they must or may vote for Trump. There may be a few more lawsuits (or insurrections) at this stage.

Finally, following inauguration, anyone adversely affected by an executive order will have standing to challenge the validity of Trump's astions predicated on his being the lawful President, giving courts yet another opportunity to weigh in.

*Alternatively, arguing that his Senate trial violated due process because all of the senators (including VP Harris, in her capacity as senator) were in the capital at the moment of insurrection, and the victims of an alleged crime can't be on the jury. The Timothy McVeigh pre-trial, where the entire federal bench and jury venire of Oklahoma were effectively recused in favor of a Colorado judge using a Colorado jury venire, is precedent.

Posted by: arthur | Jan 17, 2021 1:30:35 PM

I think realistically it is the decision of both the Chief Justice and the Senate. The Senate isn't going to force the Chief Justice to preside. And, he isn't just going to show up against their wishes.

Just to toss it out there, it is a bit annoying how references to impeachment are scattered in various places. OTOH, they are usefully put together on Wikipedia or the like.

The text says the Senate has the sole power to try and the Supreme Court decided that gives it broad power on their own even if in theory the courts can step in (three justices suggested in at least extreme cases they might). But, noting one opinion doesn't settle everything for all time anyway, there still are a few basic rules such as a supermajority needed for removal. In those cases, arguably, the Senate doesn't have absolute power without the courts stepping in. That remains to be seen.

Here the text says the Chief Justice presides when "the President" is tried. So, if Trump was still sitting, what happens if the Senate tries to have Chuck Grassley preside instead (let's say if Trump was charged with bribing Roberts, so Roberts is found too self-interested ... or let's say a spouse of the POTUS is a Chief Justice).

Anyway, Trump will likely be put on trial after he leaves office. He was impeached while in office and was impeached for wrongs done in that office. Many have argued this fits the text. There is reasonable disagreement. The Chief Justice is merely presiding officer. His judgments here can be overridden by a majority vote. This includes his very right to preside.

(What happens if it is 50-50?)

But, respect for the office and so forth will caution the senators to not force Roberts to serve if he strongly is against it. As to the logic, a basic reason to have him preside usually is the concern of self-interest. Since the Democrats are in control, that seems to be still a possible concern. It is a political freighted event and Harris or Leahy presiding would seem to be biased to some.

I also think the Chief Justice presides in part given the importance of the position of the President. For both reasons, even if the self-interest concern is weaker after Pence steps down, I think the Chief Justice should preside. If he conscientiously thinks he should not, he should in open writing explain why.

Posted by: Joe | Jan 17, 2021 12:38:39 PM

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Posted by: Daniel Tan | Jan 17, 2021 12:12:33 PM

It looks as if there is an issue here indeed, yet, not really with all due respect. The constitution is clear:

When the president is impeached or faces trial in Senate, it is the chief justice who would preside the trial. So, impeachment and trial, has to do with the conduct or misconduct or offences, made by a sitting president, while president. That is the main purpose. That is the essential. For:

One needs for example, to draw lessons. Establishing norms. How one president should behave or act as sitting one. While in office. On duty. This is the main purpose. If he is already an ex one, that is secondary or marginal or should follow the main one:

How he was acting and behaving as president. The fact that now he is the "ex" is totally marginal and secondary to the main issue or period as sitting one.

That is why, the chief justice, must preside here. That is the text and purpose of the constitution.


Posted by: El roam | Jan 17, 2021 8:56:02 AM

My view is that textually the Chief Justice should not preside. The text speaks of the president being on trial, not a president. The framers might also reasonably think that the conflict of interest that a vice president would have is non-existent if it is a former president on trial, so there is a conceivable policy motivation for the difference.

Posted by: Jr | Jan 17, 2021 6:11:44 AM

10/10 on the title.

Posted by: thegreatdisappointment | Jan 16, 2021 10:32:36 PM

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