Republicans and legal scholars say the decision to appoint Democratic Sen. Patrick Leahy to preside over former President Donald Trump’s impeachment trial poses a conflict of interest and undercuts the case for attempting to convict an ex-president.
“How does a senator preside, like a judge, and serve as juror too?” Sen. John Cornyn, a Texas Republican and member of the Senate GOP leadership team, said Monday.
Senate Democrats said Monday that Chief Justice John Roberts will not preside over Trump’s impeachment trial, which is scheduled to begin on Feb. 8.
Senators didn’t invite Roberts to oversee the trial, sticking to the constitutional definition of the chief justice’s role presiding over impeachment trials only for sitting presidents, not former presidents.
Instead, they appointed Leahy, the Senate president pro tempore, to assume the role, which is mostly one of silent oversight but can require making critical rulings that could affect the outcome of an impeachment trial.
Leahy, 80, has served in the Senate since 1975, representing Vermont.
He voted to convict Trump last year on two impeachment articles and has been a longtime Trump critic.
Trump now faces one article of impeachment charging him with inciting an insurrection related to the Jan. 6 attack on the U.S. Capitol by throngs of his supporters who believed in the former president’s view that the election was fraudulently awarded to Democrat Joe Biden.
On Jan. 6, Leahy issued a statement in response to the Capitol attack in which he said Trump “promotes delusional conspiracy theories and encourages felonies.”
Leahy told reporters Monday he won’t act as a partisan lawmaker in his role overseeing the trial.
“I’m not presenting the evidence, I’m making sure that procedures are followed,” Leahy said. “I don’t think there’s any senator who, over the 40-plus years I’ve been here, would say that I’ve been anything but impartial in ruling on procedure.”
Leahy not only plans to preside over the trial but will also vote on whether to convict Trump, his spokesman confirmed. The dual role has long been employed during Senate impeachment trials involving the removal of judges.
“Members still perform their duties as United States Senators and vote on all matters when presiding over the Senate, including when the president pro tempore has presided over impeachment trials,” spokesman David Carle said.
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.
Republicans say the decision to appoint Leahy and not invite Roberts further undercuts the constitutionality of an impeachment trial for an ex-president.
The Constitution addresses only the impeachment and trial of a current president and calls on the chief justice to preside to ensure the fairness of the proceeding.
“It reflects the basic flaw that we are operating under,” Cornyn said. “We are making it up as we go, as opposed to going by the Constitution.”
Cornyn and other Republicans say Democrats are setting a precedent that could lead to impeaching other former presidents and officeholders.
“This leaves open the door for calling back up former presidents or former civil officers and impeaching them on the actions of a future Congress,” Sen. Marsha Blackburn, a Tennessee Republican, said Monday.
Banzhaf said Leahy’s role will undercut the appearance of impartiality.
“It appears the founders provided for the Senate trial to be presided over by the chief justice in order to ensure fairness, and the equally important appearance of fairness, by employing the person in government most likely to be, and to be seen, as impartial,” he said Monday. “Substituting someone other than the chief justice to preside at the Senate impeachment trial seems to go directly contrary to this clear purpose.”
Senate Majority Leader Chuck Schumer, a New York Democrat, argued on the Senate floor Monday a Trump impeachment trial is constitutional.
Schumer called claims that the Senate cannot hold an impeachment trial for an ex-president “fringe legal theory,” pointing to the case of a Cabinet member forced out in 1876.
Schumer said Republicans are trying to dodge a vote on whether to convict Trump.
“There seems to be a desire on the political Right to avoid passing judgment, one way or the other, on former President Trump and his role in fomenting the despicable attack on the Capitol on Jan. 6,” Schumer said Monday. “There seems to be some hope that Republicans could oppose the former president’s impeachment on process grounds, rather than grappling with his actual awful conduct.”
