Impeachment

Does the Chief Justice Preside over an Ex-President's Impeachment Trial?

Conflicting signals from the Belknap impeachment

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President Trump has been impeached, and the trial seems unlikely to begin until he is no longer the President. There is some dispute about whether the Senate can try an impeachment of an ex-official. But it has done so in the past, most famously in the case of ex-Secretary of War William Belknap, and for reasons adequately covered by others I think that is proper.

If it does, there comes a secondary procedural question. Who presides? According to Article I, Section 3, normally "The Vice President of the United States shall be President of the Senate," and in her absence, other Senators preside. But "When the President of the United States is tried, the Chief Justice shall preside." Should we think of the trial of ex-President Trump as the trial of a President?

I started reading through the Belknap Senate trial and quickly came across conflicting clues. It seems to me that the answer to this question depends on the precise theory under which ex-Presidents can be impeached, and both theories were mentioned during the Belknap trial.

One theory is this. Technically, there is no restriction on who may be impeached and tried by the Senate. Article II says 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," but that provision technically establishes one of the consequences of impeachment—removal—it is not the impeachment power. The impeachment power is contained in Article I, and says "The House of Representatives … shall have the sole power of impeachment" and "The Senate shall have the sole power to try all impeachments." That is the impeachment power, with no limit on who can be impeached.

The other theory is this. Impeachments of ex-officers are permitted because impeachments of officers can't be defeated by the resignation or departure of the officer. Otherwise, officers could evade the Senate's judgment, and most importantly, could evade the Senate's power to impose disqualification from future offices, a power expressly mentioned in the Constitution. This theory might not extend to the impeachment of private citizens, etc., but it would allow impeachment of ex-officers as an extension of the power to impeach and disqualify officers.

I found people articulating both theories within the first few pages of the Belknap trial. Some speakers argued that the impeachment power had an unlimited domain of defendants, and that is why Belknap could be tried. Others argued that the trial "related back" to the original House inquest against Belknap, when he was an officer. (The idea of "relation back" may be familiar to modern litigators.)

On the first theory, the Chief Justice need not preside. An ex-President being tried is not the President, and the Senate's jurisdiction does not depend on his former official status. On the second theory, I think the Chief Justice should preside. If the premise of the Senate's jurisdiction is that it "relates back" to the original impeachment of the President qua President, then the President's procedural protections should be triggered.

However, I do not know which is the correct theory, nor do I know which theory the Senate will adopt if it proceeds with the trial. Perhaps this question is resolved later in parts of the Belknap trial I haven't gotten to. But it seems to me that figuring out the correct theory helps us figure out how the trial must proceed.

A final thought: I am not positive this works, but one way to avoid this question would be a theory that the Senate has the power to designate the Chief Justice as the presiding officer regardless of whether the President is being tried. Perhaps if the Senate and the Chief Justice both agree to it, the Chief Justice could preside by consent regardless of whether the Clause mandates it. That arrangement would allow the Senate to dodge this question.

NEXT: Today in Supreme Court History: January 15, 1908

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  1. Too cute by half.

    You claim that the President can be impeached even though he’s no longer President, yet because he isn’t, he’s not entitled to have the CJ preside. Wow — talk about being half pregnant…

    Are yow you are saying that the House can impeach *anyone*??? How about random law professors?

    And the FBI has arrested John Sullivan, a BLM guy, for leading the attack on the Capitol.

      1. Sounds like a real asshole. Here’s hoping he gets as harsh a sentence as they can throw at him.

        1. Word.

          The right is thrilled he’s not as pure MAGA as like everyone else who has been arrested, though Antifa I’m still not seeing.

          1. Well, this guy is BLM, but there’s a fair degree of overlap between the two organizations at this point.

          2. He’s been arrested for at BLM protests before. He was “seen in recordings kicking vehicles and threatening drivers and directing protesters to block intersections.” He runs an anarchist organization called Insurgance USA .

            1. an agent provocateur

              1. So far no evidence of larger involvement.

          3. OK, two questions for antifa’s obsessive fans here (like Dr. Ed)

            (1) What’s the current score on Capitol riot arrests, MAGA vs Antifa : 40 to 1?

            (2) What’s your predicted score : 80 to 1? 100 to 1?

            Please get your numbers in for the record!

            1. “What’s the current score on Capitol riot arrests, MAGA vs Antifa : 40 to 1?”

              Yup. Some large number to one, so far. I have no prediction for the ultimate result, although I know of no evidence that it will be greater than one.

              But some leftists are refusing to acknowledge even the 1.

    1. Technically, Trump has already been impeached now, and while a President. So they’re good in that regard.

      I think it would have been dodgy (er) to impeach after he’d left office, but holding the trial after he leaves office is not a big deal so far as I’m concerned, if the actual impeachment happened while in office. It would have been worse rushing to conduct a farce of a trial just to get it done in a couple days.

      Of course, now they have no excuse at all to deny Trump due process. But will anyway.

    2. “for *leading* the attack on the Capitol.”

      I read a lot in the document about him being there, going along and even encouraging, but leading? C’mon.

    3. Technically Baud is not making that claim, he explained that the claim was made in the impeachment trial of an ex Secretary of War.

    4. Bingo. This is all trying to justify the means with the ends.

      Impeachment is only valid for current officers. They can’t do former officers because that would be a bill of attainder.

      For the argument that they can just resign to avoid punishment – yes who cares because the power is designed to remove someone from officer! Impeachment removes someone who won’t resign.

  2. The presiding officer will be whoever the majority in the Senate thinks most advantageous, and they’ll pick the theory that justifies it afterwards. If they think Roberts presiding would be to Trump’s advantage, Harris ends up presiding. If they think Roberts has it in for Trump, Roberts gets to preside.

    Just like they’ll charge Trump with an actual crime, and then when people point out Trump’s actions don’t meet the definition of the crime, revert to the “House can impeach for literally anything” standard. Then go back to demanding you be outraged at Trump’s crime.

    Having it both ways is SOP now.

    1. I wonder whether the president did not commit the high crime and misdemeanor of criminal neglicence rather than the instigation itself. I am well aware that there is the overarching 1st Amendment issue involved but if any subordinate civil officer can be fired for disagreeing with the president, I don’t see how one could mount a defense for the highest magistrate in the land of having special privileges regarding the First.
      Thus, it is not as arbitrary as you think.

      1. How? Capitol building security isn’t under his authority, and the rally was organized by somebody else, he was just a volunteer guest speaker.

        1. He fed reckless hyperbole filled charges about the election being stolen for months. He called for people to come to DC that day for a ‘wild’ protest. He went to the protest and continued his hyperbole filled charges. The crowd took his hyperbolic charges seriously in an entirely foreseeable way. He had a duty not to engage in a regular, consistent campaign of reckless, hyperbolic charges on such an incendiary issue.

          1. Actually, there is some evidence emerging that the assault on the capital building was planned days if not weeks in advance. In which case, Trump’s speech at the rally was irrelevant.

            Which is not the same as saying Trump bears zero responsibility and can’t be impeached for it.

            1. Actually, there is some evidence emerging that the assault on the capital building was planned days if not weeks in advance. In which case, Trump’s speech at the rally was irrelevant.

              No. To quote Mike Dunford,

              “My client couldn’t have incited the angry mob, your honor, because they were already primed to storm the Capitol and just wanted to hear him speak before starting their totally pre-planned riot” is maybe not the winning argument you think, kiddo.”

              1. From what I hear, they didn’t bother waiting to hear him finish his speech, but launched their attack while he was still talking.

          2. “The crowd” did not take it that way. There was a very small, at most one or two thousand, number that had already made up their minds.

            If this was so foreseeable, who foresaw it? Everything is “foreseeable” in hindsight.

    2. Brett Bellmore : “House can impeach for literally anything” standard

      Long before the election, Trump began preparing a campaign to nullify an election he expected to lose. Two months of continuous lying followed the vote, as he harangued his supporters with charges of voting fraud unsupported by any evidence. Trump used the most incendiary rhetoric imaginable while attacking the very core of this country’s democracy. He filed dozens of lawsuits as PR stunts, not even trying to disguise their vacuity. He pressured state lawmakers to throw out election results on non-existent grounds. He demanded the Vice President intervene in a clearly unconstitutional manner to change an election DJT lost.

      And when none of that worked? He summoned a mob to Washington, fired them up with apocalyptic exhortations & lies, then sent them off to disrupt the congressional session certifying the election. As his mob rioted, he sat watching the mayhem on TV, ignoring the calls from congressional leaders under siege inside the building. Aides had to beg Trump to issue even the mildest plea for the violence to stop.

      Yes, Brett : The House & Senate can impeach / convict for “literally anything”. That certainty includes two months of doing everything possible to prevent the legal, legitimate and peaceful transfer of power – the very core principle of our constitutional government.

    3. The Constitution is pretty clear Brett, it is not up to the Senate who will preside at trial. If Trump is still the President, then Roberts has an obligation to preside, if he is not the President then he doesn’t.

      “When the President of the United
      States is tried, the Chief Justice shall preside”

      It’s not even a close question.

    1. Presumably there are security camera videos that would settle the question of what went on, and which should emerge as a result of discovery in the impending trials.

      I assume SOMEBODY has gone to a judge and gotten an injunction against any of them being erased. Please tell me that happened. Does spoliation apply to government actions?

    2. Gateway Pundit? I guess they scooped the normally reliable Project Veritas…

      I’m guessing you don’t get that your first cite on this doesn’t corroborate your second? Wait a minute, this is Ed, why am I even guessing?

  3. Ask *why* the Chief Justice is supposed to preside when the President is tried: It’s because the Vice President has a conflict of interest in that case. When it’s an ex-President being tried, that conflict is gone.

    1. It’s worth adding a footnote: When Andrew Johnson was tried, the Presiden Pro-Tempore of the Senate Ben Wade was next in line of succession, a bitter political enemy of Johnson, and had a clear conflict of interest. In that case it was definitely good for the CJ to preside. (And it’s a shame Johnson was acquitted, because Wade was among the most radical of Republicans, and Reconstruction would have been much more aggressive.)

    2. Why the rule exists is different from whether the rule should be followed. If the rule says the Chief Justice, you’re stuck with the Chief Justice, regardless of whether the reasoning behind creating the rule is applicable. Rules don’t go away just because you disagree that they’re needed anymore.

      That said, you’re really going to argue that Harris, the VP of the opposing candidate, has no conflict of interest?

      Anyway, if by the time the trial occurs Trump isn’t President anymore, the rule requiring the Chief Justice to preside no longer applies on its own terms, no need to appeal to the reasoning behind it.

    3. This is incorrect as to ‘why.’ Under the original constitutional scheme, the Vice-President was a competitor to the President and had run *against* him.

      The unamended constitution provided that the candidate that received the most electoral college votes became President, while the candidate that received the second largest number of votes became Vice-President. The candidates all ran against each other for the prize office of President. No one ran for Vice-President.

      If we’d kept this original scheme, think how differently the Clinton impeachment, with Bob Dole waiting in the wings, might have turned out. As it stands now, impeach and remove a President and you get his chosen Vice-President.

      The idea of Presidents and Vice-Presidents running together as a ticket was post-Twelfth Amendment, not in the original unamended constitution.

      1. They found that having the VP be the President’s opponent wasn’t really that good an idea, but under either system the VP has conflicts that should rule out their presiding.

        1. Or determining which electoral votes will be counted?

          1. Yeah, that, too. The Constitution has a lot of idiot little details, which do not cease to be constitutionally mandated by virtue of being a bad idea.

      2. Seems to me that your explanation just confirms that he was correct as to “why.” The vice president had an even greater conflict of interest before the amendment, because he wasn’t necessarily an ally of the president.

    4. But having the VP preside heightens the appearance of a partisan proceeding (which of course it is). But the D’s would be wise to ask Roberts to preside.

  4. It is widely agreed that the US Constitution does not apply to kangaroo courts.

  5. Since it is his status as President that gives rise to the basis for impeachment, all the same rules regarding impeachment and trial of Presidents should apply. See, e.g., R&K Associates v. New Jersey Dep’t of Env. Prot., 2017 WL 1316169 (N.J. App. Div. 2017) (since former operator of industrial site is still subject to same penalties under Industrial Site Recovery Act as current operator, former operator can assert same defenses as current operator).

    1. That’s an argument. I don’t think it’s an argument that will get you anywhere if the Senate decides Harris should preside, though.

      In constitutional terms, “non-judicable” translates to “merely advisory”. If there’s no enforcement mechanism, they don’t feel bound to follow the Constitution.

      1. I agree with Brett.

        I think that the issue is an interesting one in the abstract, and goes to show how the Constitution does not have “the prolixity of a legal code,” but whether it relates back, or does not, is really for the Senate to decide as the Court that is trying the impeachment.

        1. Well, it’s only half for the Senate to decide. They can decide that Roberts should preside, but if Roberts disagrees, what are they going to do, send the Sergeant at Arms to drag him over to the floor of the Senate?

  6. Giving the House an unconstrained imeachment power seems a very strained reading of the constitution’s text. The constitution says who can be impeached (officers of the United States), who gets to make decisions about impeachment (the Senate), and what the consequences of conviction are.

    This all seems very straightforward and reconcliable to me. I just don’t see why the clause giving the House the sole power to decide whether or not to impeach creates any conflict with the clause limiting who can be impeached. A reading resulting in such a conflict seems mot just strained but completely implausible.

    I agree there is some potential for ambiguity about whether the Chief Justice presides over the trial of an ex-President. My reading would be he doesn’t. I think this would be the most straightforward reading of the text. The text says “When the President of the United States is tried.” An ex-President is not the President.

    In general Ibwould take take the text at its plain word here, rather than try to create and apply legal theories here. It seems to me that the plain text covers the questions that need to be answered here. Legal theories of the sort Professor Baude is introducing strike me as adding doubts and difficulties that obscure what the text is telling us, adding shadow, not light.

    1. Sorry, the House makes decisions anout impeachment, the Senate conducts the trial and makes decisions about guilt and punishment,

  7. What would happen if the president’s term ended halfway through the trial? Would the Chief Justice get up and walk out?

    1. Presumably everyone would get up and walk out to attend the inauguration of the new president, but yes, that’s the consequence of one of the options discussed.

  8. I strongly suspect that this will end up with the Senate agreeing with C.J. Roberts that he will preside over the trial to avoid the question as to whether it was properly conducted, without resolving the question as to whether he needed to do so. That would be a particularly Robertsian solution, and would give Senate Democrats a better veneer of bipartisanship and going by the book, which is something they appear to be focused on here.

    1. Can we be sure Roberts would agree to preside?

      1. Why would he want to?

      2. No, but for maximum entertainment it might be fun to send the Serjeant-at-Arms of the Senate to get him by force.

        1. To go and fight the Oyez guy?

          1. ?

            To go and get the Chief wherever he might be. (And yes, presumably that means getting him from his house.)

          2. Oops, you meant the Marshal of the Surpeme Court, not the guy who works for oyez.org.

            Conveniently, it turns out that the old Marshal retired last summer than that a new one hasn’t been appointed yet, so I guess there won’t be a Serjeant vs. Marshal fistfight.

            1. Heh, I just envisioned a good old fashioned medieval “trial by combat” with Schumer and McConnell going at it to determine Trump’s guilt…

      3. I would think he will decide not to preside for a few reasons:

        He has done it before, and he didn’t seem to be having a particularly good time.

        There is no real issue to be decided since Trump will have already left office.

        He doesn’t feel he has much of an obligation after Elizabeth Warren made him read this question aloud at the last trial “At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?”

  9. This has to be the biggest farce in the history of the Federal Government.

    1. “biggest farce”

      That’s a tall order. 220 years of farces to chhose from.

  10. So a Republican congress in 2022 could impeach Obama. Asking for friend.

    1. He’s already ineligible to run for president again, and if you think he might run for or be elected to something else, go nuts.

      1. Adams the Younger went into the House after he was President.
        Taft was Chief Justice after he was President.
        Obama has been talked about as a potential Supreme Court nominee.

        1. “Obama has been talked about as a potential Supreme Court nominee.”

          Mainly by idiots.

          Mansions on Martha’s Vinyard and the “Magnum” estate on Oahu. A hundred mil in the bank. The sweetest of lives.

          No way he wants to decide death penalty stays at 3 am or write patent law opinions. Who can blame him.

          1. ERISA. The junior justice usually gets stuck with ERISA.

            1. Game, set, and match!

          2. “Mainly by idiots.”

            And as long as we don’t put idiots in the White House, it won’t matter who they think should be on the Supreme Court.

        2. Yes, and I think it’s a shame that ex-Presidents who served when they were relatively young haven’t held office since Hoover. I think they ought to put their experience to good use, rather than sitting around giving speeches and running charitable foundations.

          But, like I said, if you have the votes you have my blessing. I’m a big fan of parliamentary democracy.

      2. But he would be disqualified to be on SCOTUS if convicted

    2. Sure (as long as you mean 2023). America still hasn’t gotten over the horror of Dijon Mustardgate.

  11. If they have Roberts preside, you can be sure that some brilliant logician (thinking of some commenters here) will say that “proves” Trump is still POTUS according to the Constitution.

    And if a low-end commenter here could do it, then Louie Gohmert or Ken Paxton could do it.

  12. A third theory is that only people in office can be impeached, but that if you have been impeached while in office, there is nothing prohibiting the senate from trying that impeachment after you leave office. That strikes me as the most plausible reading. And since the president isn’t being tried (because there’s only one president, and it will be Biden), the chief justice doesn’t preside over the trial.

    1. That’s more or less my position, though it does lead to the trial being presided over by somebody with a pretty extreme conflict of interest.

      But, hey, if you’re an originalist sometimes you find the original meaning of the Constitution isn’t terribly smart. It’s still the original meaning.

      There are a lot of cases that they just didn’t consider, or counted on Congress arriving at reasonable accommodations for, when they wrote the Constitution.

  13. This is a passage that should have been amended as part of the Twelfth Amendment. Under the original election scheme, the Vice-President was politically adverse to the President; he was the guy who had lost the Presidential election. So having him preside over the impeachment trial of the President would have presented a conflict of interest. That was no longer true as of 1803 when the 12A was passed. IOW, the Vice President should preside over all impeachment trials, including that of the President.

    1. Still lots of obvious conflict of interest, arguably more than under the pre-12th system.

      The VP is closely tied to the POTUS now, they run as partners. COI in the president’s favor.

      OTOH, the VP (not in this case but normally) still gets to take the presidency if there’s a conviction. COI against the president.

      I don’t think those two balance each other out. It’s just more ways a VP could be corrupt.

    2. I disagree, there is still absolutely still a conflict of interest here. Just because she is chosen by and generally politically aligned to the current president doesn’t mean there is not a conflict of interest. The VP would gain an office of much greater power and prestige upon conviction and removal. The neutral presiding officer shouldn’t even appear to gain anything from the outcome.

      1. Whoops. Double “Still”

      2. Somebody has to preside and I suppose leaving it up to the senators to pick that person would allow the possibility of senators ganging up on the President by picking someone who would rig the trial. It should be somebody who is already mentioned in the Constitution. At least that’s what I imagine the logic was. The Convention proceedings were secret, and AFAIK neither Madison nor anyone else made notes about any relevant debate.

        Maybe it should have been the Chief Justice for all cases.

        1. It should have been the Chief Justice for all impeachment trial. The Vice President will be loyal to the President and so will try to help any impeached executive branch officer appointed by the President. Also, does the Vice President preside over the Senate if the Vice President is impeached?

          1. In the case of Trump’s impeachment trial, the vice president will hate his guts and will do anything she can to see him convicted.

        2. Realistically, I’m not sure how much scope there is for rigging anything.

          1. I could easily imagine a Republican Senate appointing someone like Ted Cruz to preside, and to protect a Republican president he would exclude any incriminating evidence on some procedural (and unreviewable) ground.

            1. Only matters if it’s something actually secret. Unlike jurors, senators aren’t even theoretically required to ignore things not formally presented as evidence. They can use their outside knowledge, can read the paper, watch the news, and use all of that in deciding how to cast their votes regardless of any instructions from presiding officer Cruz.

            2. Any question like that is reviewable by the Senate itself. And if the Republicans have the votes to appoint Ted Cruz to preside, they also have the votes to exclude incriminating evidence, or to just do what they did last time and not hear any evidence whatsoever.

        3. I can see why you wouldn’t want to put the Chief Justice in charge an impeachment trial for a judge, particularly if it was the Chief (or the judicial conference) who recommended that judge for impeachment in the first place.

          https://web.archive.org/web/20110522081532/http://blog.nola.com/news_impact/2008/06/porteous.pdf

    3. They mostly don’t have impeachment trials anymore. If a federal judge is being impeached the delegate it to a committee to in investigate, then the Senate just votes on whether to accept their recommendation, no full trial, no special presiding official outside the regular order.

      Take this example:
      “The Senate held an impeachment trial for New Orleans federal Judge Thomas Porteous for corruption…

      Senator McCaskill announced a recess because only three of the seven Senators necessary for the trial to continue were present.”

      7 senators can try an impeachment, with one of them presiding.

  14. As to your last paragraph, wouldn’t this be permissible under the “choose officers” clause? Roberts could just be designated acting President Pro Tempore for the trial since like with the Speaker of the House, the Constitution does not explicitly limit legislative officers to members. The current President Pro Tem (Leahy) could just appoint him at the beginning of the day’s business like they typically do with the junior senator who acts as presiding officer for the day. Although I guess that would lead to the weird issue of whether to address him “Mr Chief Justice” or “Mr President.”

    1. Assuming arguendo that that’s true (and there’s far from unanimous agreement that it is), wouldn’t he have to resign as Chief Justice to accept the appointment?

      1. I don’t think there is an explicit constitutional prohibition on judicial officers serving as officers of the United States, and early practice suggests that this was permissible, if contentious. Assuming there is a distinction between legislative officers and officers of the United States, there is still no explicit bar on a judicial officer serving as a non-member legislative one. The prohibition on members of Congress simultaneously serving as officers explicitly refers to Senators and Representatives. The Chief obviously is neither of these.

        There might be a structural reason not to permit this, but I can’t think of an explicit prohibition on serving as both simultaneously.

        There also may be judicial ethics or statutory prohibitions but I can’t think of any at the moment.

        1. no person holding any office under the United States, shall be a member of either House during his continuance in office.

          No, it doesn’t: it says “no person holding any office under the United States, shall be a member of either House during his continuance in office.”

          1. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

            Ah. I was confusing the ban on being appointed when the emoluments were increased and the dual office ban. But, if the first part of the section uses “Senators and Representative” wouldn’t it still make sense for “members” to refer only to those two groups?

  15. Nothing in the text permits after-office trials.

    Every reference to an office holder is in present tense.

    1. But every reference to an office holder has to do with “impeachment”; Impeachment is the indictment phase of the process, in the House. That’s already been accomplished while Trump is President. We’re discussing the trial in the Senate.

      Really, it is unreasonable to suggest that an impeached office holder could evade the trial by immediately resigning their office, in as much as the possible penalties do extend beyond removal from office.

      1. “but every reference to an office holder has to do with “impeachment””

        The chief justice sentence refers to the President, present tense. It is consistent with all the other references.

        A trial of ex-officers was permitted in England. No such power is textually granted here.

        The primary purpose is is for the alleged bad guy to leave office, resignation does that.

        Trump will be a private citizen being “tried” by a bunch of politicians in an extra judicial proceeding with zero due process protections, and little, if any, chance of judicial review. Maybe the Framers would be ok with that, but they needed to put a word or two to that effect. They did not.

    2. Nothing in the text excludes it either, and the Founders weren’t the kind of guys who buried important concepts through a devious choice of tense. Regardless of your political leanings, this is a pretty lame argument that will get smacked down by fairly standard canons of construction.

  16. Because the Chief Justice only substitutes in if the president is on trial, does that mean that a Vice President would preside over their own impeachment trial?

    1. The Senate rules purport to prevent this, I wonder what would happen if they were challenged.

      1. “The Senate rules purport to prevent this, I wonder what would happen if they were challenged.”

        Challenged … in what venue? The S.Ct. would surely consider it non-justiciable and decline to consider the issue.

        1. IDK. But even if no aspects of impeachment are justiciable (which seems hard to accept) I suppose the VP could simply claim that he wasn’t impeached, and let the facts play out.

          Suppose the Senate decided that it could impeach the President without the Chief Justice presiding? Do you think the President is just stuck with the Senate’s decision.

    2. “Vice President would preside over their own impeachment trial”

      Seems that way, Constitution says the VP is President of the Senate.

      Can the Senate by vote exclude a VP who wants to preside?

  17. The Chief Justice would seem unlikely to volunteer for such duty.

    It just doesn’t seem either attractive or required.

  18. Or the Senate could just end this farce by summarily dismissing the articles. That is what they should have done the first time and I’m sure McConnell really regrets not doing it now.

  19. It seems clear that the Vice President presides.

    I don’t think that the second theory works.

    Imagine a judge were elected President, and afterwards it was discovered that he had taken bribes as a judge. Does the Vice President or the Chief Justice preside? It seems clear that it would be the Chief Justice.

    1. I’m sure Roberts will be happy to not take the chair. Will be curious if the Senate asks him though if he will do so. I imagine his options would be 1) decline beforehand maybe giving some reasoning in which I doubt the Senate will force the question 2) take the chair and on his own motion rule that he is not eligible to preside which would be subject to an appeal but I highly doubt the Senate will entertain one or 3) take the chair but put the question to a majority of the senate which would be the ultimate arbiter.

  20. The VP doesn’t preside when the Pres is on trial because as Madison put it, “a presiding officer who stands to succeed to the President’s office if the President is convicted is, like, totally a bad look, man.”

    If it’s an ex-Pres, convicting him won’t elevate the VP to Pres, so the VP should be able to preside.

  21. Just more reasons why the Constitution does not really contemplate impeaching an ex-Prez.

    1. The Founding Fathers probably thought we were beyond the digging up dead bodies and shoving stakes into their heart just in case stage of civilization. A few hundred years later we proved them wrong.

      1. I thought Trump was, like, the healthiest president ever. And now you’re telling me that he’s literally dead? In that case, can we invoke the 25th amendment now?

  22. “[T]here is no restriction on who may be impeached and tried by the Senate.”

    The Founding Fathers would have many colorful words to describe those who write for the Volokh Conspiracy and their supporters.

    Unfortunately, I am not allowed to repeat them here.

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