Home Criminal Defense John Roberts Weaseling Out Of Donald Trump Impeachment Trial Warrants His Own...

John Roberts Weaseling Out Of Donald Trump Impeachment Trial Warrants His Own Impeachment

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(Photo by Alex Wong/Getty Images)

Earlier immediately, we realized that Senator Patrick Leahy, President Pro Tempore of the Senate and man who is not intimidated by thugs, will preside over the second impeachment trial of Donald Trump as an alternative of Chief Justice John Roberts. The announcement confused anybody with a passing familiarity with the Constitution since impeachment trials of presidents are explicitly to be presided over by the Chief Justice of the United States. And but, in keeping with a supply near Leahy cited in The Hill, Leahy will likely be taking up the position of decide per a working agreement between Chuck Schumer and Mitch McConnell.

Why do these Senate leaders get to bypass constitutional textual content? It’s unclear, however apparently Roberts is on board with this transfer, which frankly raises the query of whether or not or not Roberts is abdicating his constitutional tasks, an motion which might justify his own removing.

The Constitution doesn’t provide lots of steering with regards to impeachment, however one of many few concrete necessities it offers is that the Chief Justice preside over the trial of the President:

The Senate shall have the only real Power to strive all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted with out the Concurrence of two-thirds of the Members current. Judgment in Cases of Impeachment shall not prolong additional than to removing from Office, and disqualification to carry and revel in any Office of honor, Trust or Profit under the United States; however the Party convicted shall however be liable and topic to Indictment, Trial, Judgment and Punishment, in keeping with Law.

The sticking level on this impeachment appears to rely upon what the which means of the phrase “the” is simply as a previous impeachment turned on what the meaning of the word “is” is. The Chief Justice should preside “[w]hen THE President of the United States is tried….” Trump is definitely “a” President of the United States, however is just not presently “the” President.

First, let’s dispense with the disingenuous argument {that a} former president can’t be tried under articles of impeachment. Misguided corners of the Twittersphere, urged on by some cynical authorized analysts, cite the language “Judgment in Cases of Impeachment shall not extend further than to removal from Office,” to recommend that this treatment is unavailable after a president leaves workplace. But this studying would ignore the remainder of the sentence “and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” or the next clause “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Taken collectively as a cohesive sentence, the textual content says the Senate can’t put an official in jail, solely take away them and/or disqualify them, and a separate authorized continuing can be wanted to incur additional punishment.

If disqualification is an appropriate sentence upon Senate conviction, that might be assist an impeachment of a former president. Which tracks what the Framers were actually talking about when they chose these words.

So how does Roberts get out of this?

The argument, one assumes, will likely be that the aim of the requirement that the Chief Justice preside over the trial of the president — whereas the nation’s prime jurist doesn’t preside over trials of lesser officers — is a operate of avoiding a heated discussion of interest. The argument can be that the Constitution offers for the Chief Justice to tackle this position as a result of vesting the Vice President with this responsibility realizing {that a} conviction would end result within the fattest of all promotions would breach widespread moral strictures. If that’s the aim of the language, then Roberts isn’t required now {that a} conviction wouldn’t inure to the advantage of the presiding officer.

But that solely holds in any case if the Vice President handles the job. If it may be pawned off on the President Pro Tempore then there would by no means be a motive for the Chief to carry out the duty. That’s why the supply must be learn as greater than a verify on conflicts of interest. The textual content requires the Chief Justice to preside due to the gravity of a prosecution of the President of the United States — full cease.

Senators on each side of the aisle appear to viscerally agree, although for various causes.

“If the chief justice doesn’t preside, I think it’s an illegitimate hearing and really goes to show that it’s not really constitutional to impeach someone who’s not president,” mentioned Sen. Rand Paul (R-Ky.).

Republicans are utilizing this transfer to downplay the seriousness of the trial. You know, only a petty show trial over the frivolous problem of “a chief executive sending an armed mob to murder the Vice President.”

“That is his constitutional duty. I can’t imagine why a Supreme Court justice would not do his duty,” mentioned Sen. Elizabeth Warren (D-Mass.).

Indeed! And, frankly, that is what place the House wants to show its ire subsequent. The Constitution isn’t clear on what “other high Crimes and Misdemeanors” means, however past official legal analysis of the question has settled on “behavior incompatible with the function and purpose of the office” as qualification for removing. It’s onerous to think about a extra incompatible motion for the Chief Justice of the United States than refusing to carry out the constitutional duties of the Chief Justice of the United States. It’s such a profound act of disrespect towards the legislative department and the Constitution itself to call into query his ethical authority to stay atop the judicial department.

The House most likely received’t impeach Roberts over this and the Senate wouldn’t convict him in any occasion, however I’m not typing these phrases evenly. If the Chief refuses to carry out one of many only a few duties of the job that’s explicitly spelled out within the Constitution then he mustn’t proceed to serve in that job. Most of what the justices do isn’t within the nation’s founding doc, but when the Chief Justice takes his duties under Marbury v. Madison extra severely than his duties under the Constitution then the nation wants a brand new chief justice.

UPDATE: In discussing this on Twitter with Ross Guberman’s authorized writing obsessed followers and stepping into some cool grammar discuss, one other level struck me: To assume the “the” within the presiding officer clause refers back to the president on the time of the trial would require believing that the Framers’ wrote the presiding officer clause particularly for the uncommon occasion of wrongdoing proper on the end line that may’t be tried till after the actual fact when a brand new president is already put in. That’s only a foolish assumption. The plain which means when the Framers’ wrote that sentence was “presidential wrongdoing requires the Chief Justice to preside, wrongdoing by the Secretary of State does not.”

Leahy, not Roberts, to preside over impeachment trial [The Hill]


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any ideas, questions, or feedback. Follow him on Twitter if you happen to’re concerned about legislation, politics, and a wholesome dose of school sports activities information. Joe additionally serves as a Managing Director at RPN Executive Search.

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