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February 5, 2021

Bro Mike, you say: "since the Constitution says “the Chief Justice SHALL preside...” Chief Justice John Roberts has wisely chosen not to accept this dubious honor and will play no part in the "trial," so Sen. Leahy has graciously taken it upon himself." How is it that Justice Roberts can "choose" to not perform his constitutionally required duty? And how is it that Leahy can "take it upon himself"? (asking for a friend)


From the Gov:

When President Trump went through his first impeachment trial in the Senate, Chief Justice Roberts presided, just as the Constitution calls for during the impeachment trial of a President. For the second (sigh) trial that takes place next week, the Chief Justice sent his regrets, but neither he nor the Supreme Court offered any comments.

Donald Trump is now a private citizen; he does not hold the office of President and so cannot be removed from it. So the ceremonial duty of presiding as outlined in the Constitution apparently does not apply to the Chief Justice in this case.

Vermont Sen. Patrick Leahy, who serves as president pro tempore of the Senate, will preside instead. In a statement, he said, “The president pro tempore has historically presided over Senate impeachment trials of non-presidents.” What he didn’t say is that those “non-presidents” were other office-holders, not private citizens as Trump now is. Vice President Kamala Harris could have presided as well, but she is so closely in line for the Presidency that it would have looked even more inappropriate than what we are going to see.

As I've said, Democrats are essentially making this up as they go along. Some have argued that the Chief Justice owes us an explanation for his decision not to preside, as analyst Dan McLaughlin does here in an article we linked to a couple of weeks ago.

There also remains the question of whether a former President can be impeached at all. Legal expert Andrew McCarthy has said, “History and precedent are on the side of those who argue that impeachment trials of non-incumbents are constitutional,” –- this is news to me, and he doesn’t cite the precedent –- “but that is beside the point. The Supreme Court surely wants no part of this hot political dispute, and the Constitution’s commitment to impeachment trials to Senate control gives the justices a good reason to stay out of it.”

As McCarthy said, “Impeachment is a political process, not a legal one; there is no entitlement to the kind of due process required in judicial proceedings, where a presumptively impartial judge and counsel for the parties to select a jury of the defendant’s peers, which has been vetted to ensure its objectivity.”

In other words, this will be a political circus. Sen. Leahy has already said he’s voting to convict, before the thing even starts. With him presiding instead of Chief Justice Roberts, it will seem even more like the show trial it is. If the Democrats have any self-awareness at all, which is doubtful, maybe they’ll try to keep it a little more low-key this time around, to avoid looking like the partisan ghouls they are.

Yes, ghouls. If you don’t think this is going to be a hateful and contentious process, take a look at the wording of Impeachment Manager Jamie Raskin’s letter to Trump “inviting” him to testify --- which he wisely will not be doing.


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