Chief Justice John Roberts has long been a student of history, but this is one part of history – presiding at the second trial of Donald Trump – he can do without.
Roberts apparently believes the Constitution offers him a reprieve from another ordeal with Trump, a man who challenged judicial integrity, declared he could get his way at the Supreme Court and then called the justices “totally incompetent and weak” when he failed to prevail.
Sen. Patrick Leahy, a Vermont Democrat and the president pro tempore of the chamber, will preside for Trump’s second impeachment trial.
Senate Majority Leader Chuck Schumer said in an interview on MSNBC’s “The Rachel Maddow Show” on Monday that “it was up to John Roberts whether he wanted to preside with a president who’s no longer sitting. … And he doesn’t want to do it.” The New York Democrat noted that the Constitution appears to suggest “the chief justice presides for a sitting president.”
The terms of the Constitution dictate that “When the President of the United States is tried, the Chief Justice shall preside.” And last year at this time, the robed Roberts sat high on the Senate dais for the trial of then-President Trump.
It was clearly his constitutional duty, although at some turns Roberts made plain that he did not find it a pleasant one. This time, the jurist who oversees a court that forbids cameras, who bristles at breaches of decorum and who strives to project a neutral image, will avoid the public scrutiny and role of referee at what is an inherently political affair.
Since the US House of Representatives impeached Trump on January 13, Roberts has declined multiple requests for comment on his responsibility, if any, for a trial after Trump left office on January 20.
Leahy had earlier said that “the first choice” for presiding officer would be the chief justice, and he would not reveal on Monday when it became clear that the duty would fall to him, telling reporters only that he was “up to the responsibility.”
Roberts had no comment on Monday on Leahy’s announcement of his role or dealings with senators.
Roberts’ task last year was largely ministerial, but it had its dramatic moments. In one after-midnight episode, the chief justice warned dueling lawyers for the President and US House to stop attacking each other and respect Senate decorum.
He cited a 1905 Senate impeachment trial in which “one of the managers used the word ‘pettifogging,’ and the presiding officer said the word ought not have been used.” Roberts wearily added, “I don’t think we need to aspire of that high a standard, but I do think those addressing the Senate should remember where they are.”
Roberts then had to read, verbatim as per custom, loaded questions related to the Trump charges of abuse of power and obstruction of Congress. The chief justice refused Kentucky Republican Sen. Rand Paul’s attempt to force him to reveal the name of the whistleblower who had alerted congressional investigators to Trump’s Ukrainian telephone call attaching political strings to US security aid.
Then there was the question Roberts read aloud from Massachusetts Democratic Sen. Elizabeth Warren that began: “At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding [and] Republican senators have thus far refused to allow witnesses or evidence, contribute to the loss of legitimacy of the chief justice, the Supreme Court … ?”
Such assertions aside, Roberts, a 2005 appointee of President George W. Bush, has tried to maintain public confidence in the high court and his leadership. He wants the nine justices to be seen as neutral, even as the six Republican appointees generally vote conservative and the three Democratic appointees generally vote liberal.
“We should celebrate our strong and independent judiciary, a key source of national unity and stability. But we should also remember that justice is not inevitable,” Roberts wrote in his annual year-end report at the close of 2019, as he was headed for the first Senate trial of Trump.
Only three presidents in American history have been impeached and subject to Senate trial. In addition to Trump in 2020, President Bill Clinton was tried in 1999 and President Andrew Johnson in 1868. All three were acquitted by the Senate; it takes a two-thirds vote to convict.
Why Roberts can skip this trial
Never has a former president been impeached, although other former officials have been impeached and subject to Senate proceedings. The US House impeached Trump for inciting the January 6 insurrection at the Capitol.
Although the relevant provision has never been tested, many scholars read the Constitution to require a presiding chief justice only for “the President,” that is, the sitting president.
They note that the framers designated the chief justice, rather than any senator or the vice president, who under the Constitution serves as the Senate president, to avoid a natural conflict of interest. If a sitting president were convicted and removed, the vice president would succeed him. No such situation would exist for a former president out of office.
Leahy, who has served in the Senate since 1975, vowed to ensure proper procedures were followed and reminded reporters that he has “presided over hundreds of hours” during his Senate tenure.
When Roberts ended the trial last year, on February 5, he said he had “attempted to carry out ill-defined responsibilities in an unfamiliar setting,” and he told senators he hoped that the next time he saw them would be “under happier circumstances.”
For now, it will not involve Donald Trump.
CORRECTION: An earlier version of this story incorrectly referenced the Constitution’s terms about the Senate trial. The passage reads, “When the President of the United States is tried, the Chief Justice shall preside.”