Trump Trial Puts Fundamental Question to Chief Justice Roberts By John Yoo & Robert Delahunty
It’s a murky situation that could see none other than Vice President Harris preside.
B efore the Senate holds an impeachment trial, as many conservative and liberal writers advise, it should understand the serious constitutional issues at stake. Chief among them is whether the Senate can try a defendant who has left office. Another one, less noticed, is who would serve as the trial judge. Carefully read, the constitutional text may even allow the chief justice of the Supreme Court to scuttle the whole affair, or at the very least open up a political minefield that could cripple the new administration. The Senate would better serve the national interest simply by allowing Donald Trump to depart — which, after all, is the main objective of impeachment — rather than holding a long trial solely to disqualify him from future office.
We have written before about the constitutional challenges to impeaching Trump. He was involved in the odious attack on the Capitol during the January 6 counting of the Electoral College votes. But the current rush to impeach and try Trump may imperil multiple constitutional values.
First, the House carried out a hasty impeachment — two days — that charged Trump with the wrong crime. Convicting Donald Trump of “incitement” to insurrection will debase both the crime of incitement — which our courts have long read narrowly to protect vital free-speech values — and the meaning of insurrection. We would not give the criminals and miscreants who attacked the Capitol the higher status of insurrectionists who had ideological goals in mind.
Second, the constitutional text does not appear to allow for the impeachment of former officers. Article II declares that “the President, Vice President and all civil Officers of the United States, shall be removed from Office on impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.” In last year’s impeachment trial, most attention focused on what acts qualify as “high Crimes and Misdemeanors.” But the beginning of the clause grants jurisdiction to Congress to impeach only the president, vice president, and other federal officers. When the Senate holds its trial, the Impeachment Clauses will not reach Trump because he is now a private citizen, not president.
There is yet a third, apparently unnoticed, constitutional provision that causes even more problems for the Impeach Trump crowd. Article I declares: “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.”
The chief justice must preside at the Senate impeachment trial of a sitting president. But Trump will not be “the President of the United States” when he stands trial. He will be the former president, but still a private citizen. Supporters of impeachment must read “the President of the United States” here, however, to reach former presidents — otherwise, the constitutional text provides no other clear jurisdiction to the Senate to try Trump. Indeed, the Framers rejected an important element of British practice by barring the use of impeachment against private citizens.
In deciding whether to serve as trial judge, Chief Justice John Roberts will have to review whether the Constitution allows the Senate to try a former president. The constitutional text appears to require Roberts’s presence only if the Senate were trying the impeachment of the incumbent president, who is now Joe Biden. In order to show up at the trial, Roberts would have to bless the claim that the Constitution contains a hidden, unwritten clause expanding “the President of the United States” to all former presidents. He might even have to accept that impeachment could reach back as far as Bill Clinton under the theory proposed by the Impeach Trump crowd (because their reading of the constitutional non-text can set no inherent expiration date on reach of impeachment).
But Roberts almost certainly will not adopt this reading. Despite many conservatives’ disagreements (and they are many) with Roberts’s rulings, he is no Chief Justice Earl Warren or Justice William Brennan. Roberts had sought to keep his rulings grounded in the text and history of the Constitution, rather than in finding new emanations and penumbras of unwritten constitutional values. From a purely political perspective, he will be glad to find a way to avoid presiding over a trial. If he showed up in the Senate, he might appear to align himself with the anti-Trump forces. Accusations of political bias no doubt would follow. No chief justice would relish this role, and certainly not one as protective of his and the Supreme Court’s reputation as Roberts.
Unless the Constitution affirmatively mandates that the chief justice preside at Trump’s trial, he cannot do so. It would be a violation of the principles of the separation of powers for a judge to play such a leading role in the performance of a legislative function. The Founders made an exception that the chief justice preside only when the Senate puts the president himself on trial. The Founders rejected proposals to involve the federal courts in impeachment; indeed, the Constitution essentially transferred the judicial function of impeachment from the courts to Congress because the job itself was inherently political and would have corrupted the courts. Roberts cannot and ought not volunteer to assume these duties. If there is substantial doubt whether he can, he should refuse.
But whatever Roberts does, he will invite constitutional challenges. Failing to appear would undermine the constitutional case for impeaching a former president. But presiding could embroil the judiciary in the legislative function of impeachment. Either course would virtually invite a judicial challenge. Trump could file a habeas corpus petition, for example, directly with the Supreme Court if Roberts served as trial judge. He could argue that he is being tried by a court (the Senate, sitting as a court of impeachment) that has no jurisdiction over him. Indeed, attacking the jurisdiction of a court remains the original, and core, purpose of the ancient writ of habeas corpus. If Roberts intends to preside, Trump might even sue Roberts to prevent him. That would delay the Senate trial until the courts resolved Trump’s suit. Roberts’s eight colleagues on the Supreme Court would surely have to decide. And of course they might even split 4–4.
In placing the chief justice at the head of a presidential impeachment trial, the Founders sought to lend a degree of objectivity and legality to what otherwise could seem a political frenzy. It was to remind the senators that they were engaging in a genuine “trial,” not political theater. It was to underscore the accused president’s role as the nation’s chief magistrate, entitled to respect and consideration even if in the wrong. It was to reassure the impeached president’s supporters that the trial would be conducted with a minimum of fairness and that legal rulings would be made by an impartial and disinterested source. In short, the chief justice’s presiding role would invest the Senate trial of an accused president with an aura that would sustain its legitimacy and set it apart from ordinary politics.
But those purposes cannot be served in an unprecedented second trial of Donald Trump. It will be seen as a naked political reprisal to satisfy a thirst for revenge.
Critics could respond that the constitutional text reaches former presidents who have been impeached while in office. And Trump was in office when the House delivered its indictment. But that argument is mistaken. The plain language of the Constitution stands in the way. In its desperate rush to impeach Trump (again), Biden’s Democratic Party has overlooked this constitutional nicety.
Not just the text but its surrounding context makes this clear. Substituting the chief justice for the vice president as presiding officer in the specific instance of a presidential impeachment trial makes sense because it avoids the obvious conflict of interest that would arise if a sitting vice president such as Kamala Harris presided over the trial of a sitting president such as Biden. No such conflict exists when the defendant is an ex-president.
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In Nixon v. United States (1993), the Supreme Court ruled that most questions of impeachment procedure raised “political questions” that courts cannot touch. In essence, the Court decided that the Senate’s choice of procedural rules for trying an impeachment was up to the Senate alone, not for the courts. But that ruling doesn’t apply here. Having the chief justice preside is not an internal Senate procedure. It is a constitutional mandate — but only in an appropriate case. Trump’s constitutional challenge here would ask not how the Senate chose to try an impeachment, but whether the Senate had the jurisdiction to grab hold of Trump and impose its judgment at all — a classic separation of powers question fit for judicial resolution. Suppose Congress chose to indict and try the editors of National Review (no doubt on grounds aplenty). Surely the federal courts could hear their claim that the Constitution does not allow the impeachment of private citizens.
It follows that if the Senate convicted Trump with Roberts presiding, the courts would reject a political question and proceed to adjudicate the constitutionality of the trial. Trump could litigate an adverse Senate judgment on the grounds that the presiding officer at the trial had no business to be there, Roberts’s presence denied him a fair trial, and the impeachment violated separation of powers. Here, unlike in the Nixon case, we would not be dealing with internal Senate trial procedures but with the meaning of a constitutional text. The Supreme Court would become entangled in the politics of Trump’s impeachment.
The Biden Democrats have opened a Pandora’s box of constitutional mischief that may boomerang. If Roberts does not show up, then the Senate will have to claim it can try a fourth category of executive officer — the former officer — despite the silence of the constitutional text. In that case, Vice President Kamala Harris must preside in her role as president of the Senate. Indeed, presiding at Trump’s Senate trial would be one of her earliest duties.
A more biased and less impartial judge could not be imagined. Harris campaigned on the grounds that Trump had committed numerous crimes and abuses of power and had to be removed from office. “The Senate trial of Donald Trump has been a miscarriage of justice,” Harris said a few hours before the Senate acquitted Trump of both articles of impeachment last year. “He’s going to escape accountability because a majority of senators have let him.” A more unsuitable judge has not sat since Vice President Aaron Burr, fresh off killing Alexander Hamilton, presided over the impeachment of Supreme Court Justice Samuel Chase in 1805.
Nevertheless, Harris will have to preside over the trial of her boss’s predecessor in office. She may even have to make tie-breaking rulings on a series of difficult constitutional questions such as the Senate’s right to try former officers, whether to call witnesses, what evidence must the prosecution produce, whether the federal crime of incitement applies, and whether Trump can claim the protections of the First Amendment. If she rules against Trump, critics will claim that she is leading a banana-republic attack on the preceding administration. If she rules for Trump, the progressive Left will unleash their furies. Harris may secretly hope that the Senate drops the idea of holding a trial. If the Senate were to grant her wish, it would be doing not just her but the nation as a whole a great favor.
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