While Republicans howl at the supposed unconstitutionality of the second impeachment of Donald J. Trump-with only five Republican senators joining Democrats to defeat an attempt to dismiss the control of incitement of insurrection on the grounds that only presidents who successfully overthrow an election and secure a second term can be impeached-the chief justice of the United States has bowed out of the impeachment business altogether. This really is puzzling, to say the least.
Equally puzzling may be the Democrats' supine willingness to accommodate John Roberts's \”out to lunch\” demand. It's fueled the feigned outrage this impeachment effort is just another partisan political attack on Mr . trump rather than a legitimate attempt to hold him accountable for provoking the Jan. 6 mob attack on the Capitol that left five people dead.
Senate Majority Leader Chuck Schumer told MSNBC's Rachel Maddow on Monday that Chief Justice Roberts \”did not want\” to take part in the second impeachment trial. Senate president pro tempore Patrick Leahy is presiding over the trial instead.
Keep in mind the conservative 6-3 majority on the Top court is stacked with professed textualists, including Justice Amy Coney Barrett who explained at her confirmation hearing: \”In English this means that I interpret the Constitution like a law, that I interpret its text as text, and I understand it to have the meaning that it had at that time people ratified it. So that meaning doesn't change with time and it's not up to me to update it or infuse my very own policy views into it.\”
Article I, Section 3 states: \”When the President of the United States is tried, the main Justice shall preside.\” Remarkably, this is actually the only mention of the office of chief justice within the Constitution, a fact that speaks to the significance of this responsibility of the office.
Reading between your lines, Roberts's argument for standing down would be that the Constitution uses the present tense: \”When obama is tried.\” Joe Biden is now president; Donald Trump is an ex-president; therefore, Roberts doesn't have constitutional obligation to serve. Some distinguished legal and constitutional scholars, for example former solicitors general Paul Clement and Neal Katyal, have indicated agreement with Roberts.
The problem with this argument is multifold. First, let's eliminate Senate Republicans' claim that impeaching a former officeholder is unconstitutional. It is far from clear that trials of ex-presidents are unconstitutional, particularly as the Senate has once before held an impeachment trial for an official after he left office. And while scholarship is mixed on the question, logic would seem to point out that trials and convictions of former officials-especially officials who were impeached while they were still in office-are constitutional.
Second, Roberts is among nine justices whose jurisdiction is limited to cases and controversies properly prior to the Court under Article III-he doesn't have unilateral constitutional authority to interpret the Constitution's language. Whether or not the question of Article I, Section 3's meaning were put before full Court, it could not issue what are known as advisory opinions. Cases must emerge through the jurisdictional confines of Article III and it is enabling legislation, lest courts start doing the process of the political branches.
Third, Roberts's decision to absent himself in the Senate trial has stoked the flames of partisanship-not quelled them. Sen. Rand Paul -who moved unsuccessfully to dismiss the impeachment article as unconstitutionally too tardy for a trial-has argued that \”If the chief justice doesn't preside, I believe it's an illegitimate hearing and extremely goes to show that it's not really constitutional to impeach someone who's not president.\”
Assuming for the sake of argument that the question of who must preside over an impeachment trial of the ex-president were properly before the full Supreme Court, and assuming further that a majority were to agree with legal scholars that the question has no easy answer, then conservative justices would presumably look-as Justice Coney Barrett explained-to the aim of the Framers of the constitutional text.
A number of delegates to the Constitutional Convention argued the judiciary should conduct impeachments. After a motion by Gouverneur Morris of Pennsylvania to table the issue, what eventually prevailed was a process that gave the Senate the ability to try impeachments. In Federalist No. 65, Alexander Hamilton defended the choice as avoiding \”double prosecution\” if a court would preside over an impeachment trial and a criminal trial of the same person.
Under the Constitution's plain text, the function of the chief justice is exclusive to presidential impeachments; when federal judges along with other \”civil officers\” are impeached, the president of the Senate or obama pro tempore presides. Scholars have long reasoned that getting the chief justice oversee presidential impeachments \”is a tool for avoiding the prejudicial effect of the conflict of interest,\” since the vice president and the president pro tempore are generally in the line of succession. With Trump now out of office, the line of succession upon elimination of a president is not a concern.
But there other difficulties that counsel against the chief justice's absence on Feb. 9, the date now looking for the start of the trial.
Preceding debate over whether or not to impeach President Richard Nixon, the House Judiciary Committee in Feb. 1974 issued a study on the inevitable ambiguities in the constitutional text. Its conclusions bear repeating:
The framers understood quite clearly the constitutional system they were creating must start adding some ultimate check on the conduct of the executive, particularly as they came to reject the suggested plural executive. While insistent that balance between your executive and legislative branches be maintained so that the executive would not become the creature of the legislature, dismissible at its will, the framers also recognized that some means could be needed to deal with excesses through the executive. Impeachment was familiar for them. They understood its essential constitutional functions. . . . The emphasis has been on the significant effects of the conduct-undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse from the governmental process, adverse impact on the system of government.
The chief justice of the United States should likewise adhere to this vision from the immense importance of the role of impeachment within our constitutional system rather than leave the procedure entirely to the politicians, based on what seem like textual gymnastics.
Sen. Leahy is hardly unbiased, having dicated to convict Trump the first time around. The lack of bias-or even the appearance of bias-is precisely why federal judges have lifetime appointments minus the pressures of re-election. Both parties in Congress, along with the chief justice, have have helped a cheapening of a hallowed lever of presidential accountability. Once more, it's the people who lose.