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Trump Trial Without Chief Justice Lets GOP Talk Optics, Not Riot

Jan. 27, 2021, 7:00 AM

U.S. Chief Justice John Roberts’s refusal to preside over Donald Trump’s second impeachment trial is giving Republicans an opportunity to focus on the Senate’s process rather than the specifics of the insurrection charge against the former president.

The Constitution calls for the Supreme Court’s top jurist to preside over impeachment trials of sitting presidents but is silent on what should happen for one who is no longer in office.

U.S. Chief Justice John Roberts
Photographer: Drew Angerer/Getty Images

Roberts’s decision to skip the current trial without any public explanation leaves a Democrat already on the record as favoring conviction, Senator Patrick Leahy of Vermont, overseeing the trial when it gets underway the week of Feb. 8. That opens it up to accusations of being a more partisan -- and less judicial -- process than in Trump’s 2020 impeachment.

Republicans are seizing on Roberts’s absence to question the trial’s legitimacy and deflect attention from the substantive charge that Trump incited the Jan. 6 insurrection at the U.S. Capitol. The increasingly partisan nature of the debate was on display Tuesday, when 45 of the Senate’s 50 Republicans supported an unsuccessful bid to declare the case unconstitutional because Trump is no longer in office.

What to Know About Trump’s Second Impeachment Trial: QuickTake

“If a Democratic senator is presiding over the impeachment of a Republican president rather than a Republican-appointed Supreme Court justice, it makes the entire proceeding look much more partisan,” said Republican pollster Whit Ayres. “We’re not talking about what’s legal here. We’re talking about political perception.”

Roberts has refused to comment on the impeachment trial, even leaving it to lawmakers to convey that he had declined to take part. His silence has left others to speculate on his reasons and debate the significance of his decision.

Senator Patrick Leahy
Photographer: J. Scott Applewhite/AP Photo/Bloomberg

Americans are used to seeing judges preside over trials generally -- and presidential impeachment trials specifically. A year ago, a robed and sometimes bleary-eyed Roberts manned the Senate dais for Trump’s first trial, just as then-Chief Justice William Rehnquist did for President Bill Clinton’s 1999 trial.

“Most adults in America have seen two impeachment trials in their lifetime,” said Michael Steel, former press secretary for then-House Speaker John Boehner and then-vice presidential nominee Paul Ryan. “They know what a regular impeachment trial looks like and that includes the chief justice presiding. Having a Democratic senator in the chair gives it less gravity.”

Solid Ground

Constitutional scholars say Roberts is on solid -- or at least defensible -- ground in opting out. The Constitution says the chief justice must preside “when the president of the United States is tried,” but it doesn’t explicitly say whether that includes former presidents.

A key reason for involving the chief justice was to avoid the conflict of interest that would occur if the vice president presided over a trial that could result in him or her becoming president, according Brian Kalt, a professor at Michigan State University College of Law. That rationale is “off the table” in the case of a former president, he said.

“I think the better argument is the chief justice doesn’t preside,” said Kalt, who wrote a law review article about impeachment proceedings of former official.

Roberts’s actions hint that he agrees with that reasoning.

“If the chief justice decided not to preside over the impeachment trial, that suggests that he doesn’t believe the Constitution requires him to preside over the trial of a former president,” says Jeffrey Rosen, president of the National Constitution Center.

Impeaching an Ex-President Raises Issues of Why, How: QuickTake

Another impeachment expert, University of Missouri law professor Frank Bowman, said the “constitutionally prudent course” would be for Roberts to preside. Bowman said that would avoid giving Senate Republicans a procedural excuse to acquit and eliminate a potential post-conviction argument that the trial was unconstitutional.

But Bowman, author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” said that doesn’t mean a court would overturn a Trump conviction on those grounds.

“Since I have every reason to believe that Roberts was asked to come and refused, one rather doubts that either lower courts or the majority of Scotus would second-guess him,” Bowman said, using an acronym for the Supreme Court.

Political Perception

The Republican-appointed Roberts, now in his 16th year as chief justice, has long tried to steer the courts away from overtly political matters.

He tried to keep a low profile when he presided over the Senate’s three-week 2020 trial of Trump, relying heavily on the chamber’s parliamentarian for what to say and putting disputed questions to the Senate for a vote. In his most consequential decision, he said he wouldn’t break any tie votes.

“The role of the person who sits in that chair is minimal,” said Victoria Nourse, a Georgetown law professor and former special counsel to the Senate Judiciary Committee. “The ultimate decider here is not who is sitting in the chair -- it’s the full Senate.”

Still, his absence this year could be glaring. Television viewers instead will see a proceeding run by Leahy, the Senate’s president pro tempore who in a Jan. 13 statement called Trump “the greatest threat to the Constitution and to American democracy in a generation.”

Leahy, 80, was briefly hospitalized Tuesday after presiding over the Senate session. His spokesman, David Carle, said Leahy “was not feeling well” and was taken to the hospital “out of an abundance of caution.” He was later released.

Graham’s ‘Fine’ With Leahy

Senator Lindsey Graham of South Carolina said Monday he is “fine” with Leahy overseeing the trial. “I’ve known Pat a long time. I believe and hope he’ll be fair,” Graham said.

Other Republicans have been critical, including Senator Rand Paul of Kentucky, who led Tuesday’s challenge to the constitutionality of the trial.

“It’s a sham impeachment,” Paul said. “If the chief justice isn’t coming over, it’s just a partisan farce.”

Roberts’s lack of explanation has left lawmakers free to spin the significance of his decision. Senator Chuck Grassley of Iowa told reporters that the chief justice’s absence “would send a pretty clear signal to me what Roberts thinks of the whole thing.”

Without Roberts, “the optics are going to be manipulated,” said Melissa Murray, a New York University law professor. His absence will give cover to “those who may be concerned about condoning the conduct that gave rise to the impeachment article but don’t necessarily want to be on record to convict the president because of the way it might inflame the base.”

--With assistance from Daniel Flatley.

To contact the reporters on this story:
Greg Stohr in Washington at;
Mike Dorning in Washington at;
Kimberly Robinson in Arlington at

To contact the editors responsible for this story:
Jon Morgan at

Elizabeth Wasserman, John Harney

© 2021 Bloomberg L.P. All rights reserved. Used with permission.