Scott Gurvey

Been there. Done that.

It seems like just yesterday the Senate tried Donald J. Trump for High Crimes and Misdemeanors. It was in January, 2020. He was acquitted.

This time it is different. The House of Representatives sent over only a single charge, accusing Trump of inciting insurrection in a speech to supporters before the deadly attack on the Capitol. They voted for impeachment without hearings or witnesses, using only the former president’s own words against him. And unlike the first time, where the impeachment was passed on a party-line vote, this time ten Republican members of the House stood with their Democratic collogues.

Another difference is that there was little in the way of defense. About the best Trump’s congressional supporters could do was argue that Trump hadn’t actually told people to stage a riot and kill policemen. That is true. But he did say “we’re going to walk down … to the Capitol…. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.” Death and destruction followed.

The other argument was that with only days left in Trump’s term in office, a proceeding designed to remove him from office was a waste of time. In fact it now appears this will be a principal argument at the Senate trial, defenders saying with Trump now out of office, an impeachment trial doesn’t matter and is therefore unconstitutional. That theory has been pushed with great vigor by Rand Paul, the “other” nutcase foisted upon the Senate by the people of Kentucky.

Why It Matters

The Constitution is a wonderful thing. Written in 1787, it was the first written specification for a representative form of government enacted by the governed themselves. To find even an unwritten representative government you would have to go back to the Roman Republic. But as remarkable as it was then it was not perfect. It contained omissions and ambiguities and made compromises which haunt us to this day.

The authors made it clear they saw the Constitution as a work in progress, allowing for amendments to its text and creating a judiciary to help interpret its meaning. On the procedure for trying an impeached officer of the United States they wrote:

The Senate shall have the sole Power to try 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 without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article I Section 3

There is nothing here that addresses the factual situation we currently face, with a president impeached during his term of office but coming to trial after that term has expired. There is nothing in the scant notes of the debate or in other writings on the Constitution itself that the framers considered this question. But I would argue that common sense alone is sufficient to defeat the notion that a president could commit as heinous a crime as one could imagine in his last few days in office and be immune from prosecution by Congress. That would be one hell of a get out of jail free card.

Obviously one cannot remove from office a president who is no longer in office. And while it is true that the impeachment process is a political function, not as judicial one, judicial bodies are not inclined to render verdicts in cases where the verdict will have no effect. Courts tend to dismiss such cases as “moot”. But that is not the case here. There is a second part to the judgment clause, the disqualification of the convicted from holding federal office in the future. It is doubtful Trump’s accusers are comfortable at the thought that he could seek a second term. For that reason alone, the trial is not without consequence and is clearly Constitutional. Not only that, this situation has been faced as far back as 1797, when the Senate tried one of its own members on an impeachment after he had been expelled.

What’s With John Roberts?

And now, with a great deal of pain, I admit I find myself in some agreement with one of the arguments of Senator Paul and others. It has been announced the John Roberts, the Chief Justice of the United States, will not preside at the second trial of Donald Trump as he did over the first. Senator Patrick Leahy, the president pro tempore of the Senate, will be in the chair.

Why?

Leahy’s office put out a statement indicating this was not Leahy’s choice. Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell apparently made the decision. Leahy would normally preside over the trial of any other federal officer. In an interview with MSNBC’s Rachel Maddow, Schumer said:

The Constitution says the Chief Justice presides for a sitting president. So that is not going to be—so it was up to John Roberts whether he wanted to preside with a president who’s no longer sitting, Trump. And he doesn’t want to do it. So, traditionally, what has happened is then the next in line is the Senate Pro Tem. That’s the most senior Senator on the Majority side and that’s Senator Leahy, who is a very experienced man and a very fair man.

Yes but. In the first place, Schumer is misquoting. the word “sitting” does not appear in the Constitution. It just says, “President of the United States.” Trump is no longer president. But he was president when he was impeached. One of those pesky little ambiguities I mentioned earlier. In the second place, I’m not sure where this situation made it Robert’s choice to preside or not “preside with a president who’s not longer sitting….” I would think that is a decision for the Senate to make.

No matter how experienced and fair a man Leahy is, he is also a juror and it just doesn’t look right for him to be presiding over the trial. This is a most solemn business. The Chief Justice of the United States owes the people the value of his expertise in presiding over the trial. To do any less delegitimizes the proceedings and in so doing Roberts shirks his responsibilities. These are delineated in his own oath to, “faithfully and impartially discharge and perform all the duties incumbent upon me as _ under the Constitution and laws of the United States. So help me God.” (Dec. 1, 1990, 104 Stat. 5124.)

Roberts should be in that chair, like it or not.

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