Supreme Court Chief Justice John Roberts is apparently looking to sit out former President Donald Trump’s second impeachment trial — and not without good reason.
Trump’s trial, in which the Senate for the first time will weigh the alleged crimes of an ex-president, presents a tangle of constitutional difficulties for Roberts, legal scholars told the Washington Examiner. That could be good news for the chief justice, who faced harsh scrutiny during Trump’s first trial and wants no part in the second go-around, according to multiple reports.
The strongest argument for Roberts to stay on the sidelines is the fact that the Constitution only directs the chief justice to preside over a sitting president’s trial, said Michael Dorf, a professor of constitutional law at Cornell University. Under normal impeachment conditions, he added, that arrangement saves the vice president, who usually acts as the presiding officer over the Senate, from the appearance (or the reality) of a conflict of interest.
But this is no normal impeachment by any stretch. Trump is no longer president. And if the Senate convicts him, then Vice President Kamala Harris will not become president. Moreover, since the text of the Constitution does not specifically speak to the situation, Roberts can reasonably argue that it is not his business to get involved in a partisan squabble.
Still, there is a strong argument that Roberts should preside, said Frank Bowman, a professor of law at the University of Missouri, who has written extensively on impeachment. While there is not a textual requirement for Roberts to show up to the trial, Bowman said, it may be prudent for him to do so anyway because of the event’s political context. Trump, although a private citizen, has repeatedly mentioned that he may run for president in 2024, which could set up a potential conflict of interest for Harris if Roberts bows out.
“This vice president does have a personal interest in the outcome, insofar as conviction would eliminate Trump as a future political rival, either to President Biden or to Harris herself,” Bowman said. “I think the constitutionally safer call is that he should preside. That way, there can never be a later objection on the ground that the tribunal was not properly constituted.”
The arguments over Roberts’s involvement have played out over the backdrop of a larger debate about whether the trial of an ex-president is even constitutional. Those opposed to the trial point to the fact that Trump left the White House on Wednesday.
“The Senate lacks constitutional authority to conduct impeachment proceedings against a former president,” Sen. Tom Cotton, one of Trump’s top Republican critics, said in a statement last week. “The Founders designed the impeachment process as a way to remove officeholders from public office — not an inquest against private citizens.”
On the other side, those in favor of moving forward tend to gesture at the specter of another Trump run as the chief reason to proceed. On Thursday, a bipartisan group of legal experts argued in an open letter that “nothing in the text of the Constitution bars Congress from impeaching, convicting, and disqualifying former officials from holding future office.”
“Indeed, the ability to try, convict, and disqualify former officials is an important deterrent against future misconduct,” a collection of more than 150 signatories wrote. “If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.”
Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell are still in talks to decide how the trial will proceed, leaving very little hope of success for those arguing against its constitutionality. At the same time, the question of Roberts’s involvement remains open.
If the chief justice chooses to stay out, the reason could be a simple one, Bowman said.
“He’s got another job — and a fairly busy one,” he said.
