WASHINGTON — There’s no clear answer to whether Chief Justice John G. Roberts Jr. or a Democrat would preside over a second impeachment trial for President Donald Trump, which could determine how the nation perceives the fairness of the proceedings.
The Constitution states, “When the President of the United States is tried the Chief Justice shall preside.” Roberts presided over Trump’s first impeachment trial a year ago, just the third such trial in history.
But what happens when Trump leaves office on Jan. 20 — before the trial starts — and becomes a former president of the United States? Must the chief justice still preside over the trial? Could he choose to do so?
Or does role that fall to the presiding officer of the Senate, who will be the new vice president, Kamala Harris? Or can the Senate have its president pro tempore, at that time Vermont Democratic Sen. Patrick J. Leahy, preside? Or can the Senate pick an alternate presiding officer under a special order?
Constitutional and congressional experts have no certain answer.
The situation has never come up before — like so many other legal issues in the Trump era — and the nation’s founding document is silent about it.
“I really have no idea what is correct, but my instinct is that this is totally novel, so the current actors will likely set the precedent,” said Matt Glassman, a senior fellow at the Government Affairs Institute at Georgetown University.
There’s some incredible timing that raises the question. Ordinarily, the Senate would send an invitation to the chief justice for a trial on the same day it receives a message from the House that the president has been impeached, Majority Leader Mitch McConnell wrote in a memo to Senate Republicans last week.
That would be Jan. 19, when the Senate returns to regular session and Trump is still president. But Trump no longer will be president at noon on Jan. 20, and Senate impeachment rules mean the trial couldn’t start until after he’s left office, McConnell wrote in the memo, obtained by The Washington Post.
“Whether the Chief Justice would actually preside over the trial after President Trump ceases to be President on January 20, however, is unclear,” McConnell wrote.