The Chief Justice Should Preside in the Senate Trial

For Trump’s post-presidency Senate trial, I tentatively think, as a matter of constitutional interpretation, that the Chief Justice should preside.

It’s a reasonable question: “When the President of the United States is tried, the Chief Justice shall preside.” After Jan 20, Trump is no longer “President,” even if the misconduct was during his presidency. If he is not “the President,” then the presidential exception seemingly does not apply to former presidents, and the default rule stands: The Vice President presides.

But formalistic textualism is not the most appropriate method for the interpretation of concise (laconic and often deliberately abstract or inevitably imprecise) constitutional texts, even if it may be the best approach for the “prolixity” of statutes. The best reading of Artice I, Sec. 3 is first, originalist/purposivist: It’s not just the direct conflict problem for VP to preside in removal. Trying presidential conduct is fraught w/ political, partisan & personal conflicts.

Second, if one tries to apply the more formalistic/textual argument that a former president is no longer “president” (and, yes, that’s true), there is still a textual practical reading for the Chief to preside: In a normal Senate trial, who would preside during any *disqualification stage* after removal vote? When the sitting president has already been removed? He/she would be formally no longer the president. The formalistic textual reading (the Chief presides only for formally sitting presidents) would lead to the strange conclusion that the Chief Justice can never preside over Disqualification, even after presiding over the entire trial up to that point. The impeached president has been removed, and thus is no longer technically/formally “President of the United States.” Moreover, the vice president has been transformed into the President. Thus, according to the strict formalist textualist reading, the Chief Justice may never preside over the disqualification stage, and after a presidential removal, there is formally no Vice President anymore. So there is no Vice President left to preside.

Maybe a solution in the DQ stage for a just-removed president is the Senate chooses one of its own to preside (officer like Pro Tem). But that solution creates other problems: A “juror” would also be presiding as judge? It’s not a criminal trial, but this dual role would be an odd situation.

Thus, the best reading that is most consistent with the original constitutional principles and that makes common sense of the text in practice is that the Chief Justice should preside over an impeachment of presidents and former presidents.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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