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01/24/2021

The Chief Justice Can (but Need Not) Preside at the Trial of an Ex-President
Michael Ramsey

Rumor has it that Chief Justice Roberts has said privately he will not preside at the Senate trial of former President Trump (via Powerline).  As a constitutional matter, that appears to me to be allowed but not required.  Article I, Section 3, para. 6 says:

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

Donald Trump is not the President of the United States.  So the Chief Justice is not required to preside.  That's simple.

Article I, Section 3, para. 4 says:

The Vice President shall be President of the Senate ...

The only limitation on this power is the rule from paragraph 6 quoted above.  Thus in all impeachment trials other than an impeachment of the President, the Vice President presides.  No provision requires recusal  for conflicts of interest -- so even though in the current circumstance the Vice President has a substantial conflict of interest, she is entitled to preside.  (Aside: Some scholars have argued that this creates an oddity -- even an "absurdity" --  that the Vice President could preside over the Vice President's own impeachment trial.  I say: yep, the Constitution creates some oddities sometimes; the Framers didn't always think through all the hypotheticals.)

But Article I, Section 3 also contemplates that the Vice President may not be available to preside (for whatever reason) and provides an alternative: 

The Senate shall chuse their other Officers, and also a President pro tempore in the Absence of the Vice President ...

So if the current Vice President decides not to preside (for conflict of interest reasons or otherwise), the Senate trial may proceed with another person designated by the Senate to preside "pro tempore" (meaning "for the time being").

By tradition, the presiding officer pro tempore has been a member of the Senate.  But I don't see any constitutional limitation to that effect.  As I read the text, the Senate could choose the Chief Justice to act as President pro tempore for purposes of the impeachment trial.  (Senate rules may provide otherwise, but I don't see a constitutional objection.)

Of course, the Chief Justice may decline the invitation because (as stated at the outset), he isn't required to preside.

(And also, I agree with Judge Luttig and co-bloggers Andrew Hyman and David Weisberg that the Senate doesn't have power to try an ex-President who is a private citizen.  But that's a different question.)