Either presiding or not can be justified on the basis of multiple theories, and we should expect Roberts to put his reasons in writing.
Either presiding or not presiding can be justified on the basis of multiple different theories, and we should expect Roberts to put his reasons in writing.
T here are undoubtedly few things Chief Justice John Roberts would less enjoy doing right now than taking a position on the second impeachment of Donald Trump. Roberts does not, in fact, need to decide whether the impeachment trial in the Senate can go forward, or whether the Senate can bar Trump from becoming president again. But he does need to decide whether he will preside over the trial. In order to make that decision, he must decide at least some of the contested constitutional questions. He owes it to the American people, the Senate, and our constitutional system to put his reasons in a written opinion.
Under normal circumstances, Supreme Court justices do not write advisory opinions telling political actors what the Constitution means or what the law is. Federal courts only decide “cases or controversies” between parties to a court case. But the chief justice has one additional duty under the Constitution: “When the President of the United States is tried, the Chief Justice shall preside.” Indeed, this is the only time the role of chief justice is mentioned in the Constitution at all.
This presents a straightforward question of constitutional interpretation: If the Senate sits to try an impeachment of a former president, does the chief justice preside? John Yoo and Robert Delahunty argue that this is the same question as whether a former president can be impeached at all:
Article II declares 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.”. . . the beginning of the clause grants jurisdiction to Congress to impeach only the president, vice president, and other federal officers. When the Senate holds its trial, the Impeachment Clauses will not reach Trump because he is now a private citizen, not president . . . In deciding whether to serve as trial judge, Chief Justice John Roberts will have to review whether the Constitution allows the Senate to try a former president.
This assumes that Article II is the sole source of the impeachment power — that it “grants jurisdiction to Congress to impeach.” But that is an incomplete reading of the text. Article II, which generally governs the powers of the executive branch, specifies the standard for impeachment of executive officials: “Treason, Bribery, or other high Crimes and Misdemeanors.” Congress has, since 1804, applied this same standard to the impeachment of judges as well, even though Article III (which generally governs the powers of the judicial branch) says nothing about impeaching judges, only that they “shall hold their Offices during good Behavior.” Article II also makes removal of impeached officers from their current posts mandatory, and later, it exempts the penalties imposed by impeachment from the president’s pardon power.
Article I, which generally governs the powers of the legislative branch, gives each of the two houses of Congress a power and role in impeachment:
The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment . . . The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (Emphasis added)
Article I supplies the power but nowhere defines what exactly “impeachment” means. Article I is also the sole source for Congress’s power to disqualify officers from holding future office, a power that is unmentioned in Article II. The originalist argument for the power to impeach former officials is that the impeachment power was a well-known feature of legislative power at the time of the Founding, exercised traditionally by both the British Parliament and colonial and state legislatures, and set forth in many state constitutions. By enumerating that power and dividing it — the House to bring the charges and the Senate to conduct trials — the Constitution imported unstated many of the assumptions of prior British, colonial, and state impeachment practice, shaped and limited by the explicit terms of the constitutional text. One of those assumptions was that impeachment was a legitimate form of public inquest and accountability of former officers, and not solely a tool for the removal of current officers.
If Yoo and Delahunty are correct that the Senate cannot try a former officer because it can only try officers who can still be removed, then the second step of their argument follows logically from the first: The chief justice cannot preside over that trial. Chief Justice Roberts will not want to tell the Senate who it can and cannot try, but he must tell the Senate whether he will preside (assuming he is asked), and if he does, he should say why. This is not an advisory opinion; he is being asked to exercise a power the Constitution explicitly demands of him. Even if he believes that the scope of the Senate’s power is a political question properly delegated to the legislature, the scope of his own power and duty is not. When a judicial officer exercises power on the basis of law, he is expected to give his reasons to serve as future precedents.
The need to explain himself is all the more urgent because this is not the only possible reason for Roberts to decline to preside. Assume, for the sake of argument, that Yoo and Delahunty are wrong, and that the originalist argument is instead correct: that the ability to try and convict a former president is implicit in Article I’s impeachment power. This argument does not depend upon Article II as a grant of power, but rather sees Article II as shaping the circumstances in which an officer can be impeached and removed under Article I. In that case, “when the President of the United States is tried” could mean a former president, on the theory that “the President” refers to the job the officer held at the time of the conduct for which he is being tried. But it could also mean the current president only, if one reads “the President” as singular (the current president), without limiting who can be tried by the Senate without the presence of the chief justice.
That is not an irrational reading of the text when you consider the reason for the selection of the chief justice to take the place of the usual presiding officer of the Senate. Why would the chief justice preside only when the current president is tried? As Yoo and Delahunty note, the presiding officer of the Senate would otherwise be the vice president, who stands to succeed to the presidency if the sitting president is removed. In 1868, before the 25th Amendment, the vice presidency was empty, but at the time, the president pro tempore of the Senate was next in line to succeed to the presidency. Either way, the presence of the chief justice ensured that the proceeding would not be conspicuously controlled by someone with a direct stake in the verdict.
A functional and plain-language reading of Article II, therefore, could lead Roberts to conclude that he is not empowered to preside — but without deciding the question of whether the trial itself can proceed. This might well be the most attractive option to Roberts, if he can get himself out of presiding, while punting to the Senate the question of its own actions.
Now, take this question from the opposite perspective. What if Roberts decides to preside? First, he might do so because he believes the originalist case for impeaching former officers is correct, and also believes that “the President” means any president, current or former. Second, he might decide, upon receiving a Senate request to preside, that it really is entirely the Senate’s prerogative to decide both who can be tried and when its proceedings require the presence of the chief justice. The Supreme Court took a hard line in Nixon v. United States (1993), in an opinion written by Chief Justice Rehnquist, against judicial involvement in impeachments:
The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary . . . Despite these proposals, the Convention ultimately decided that the Senate would have “the sole Power to try all Impeachments.” . . . According to Alexander Hamilton, the Senate was the “most fit depositary of this important trust” because its Members are representatives of the people . . . [T]he Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments . . .
Given that the impeachment power is delegated to Congress, Roberts might just let the Senate know that he sees its decision as final.
Third, Roberts might reach the opposite conclusion about the judicial role: that the Supreme Court may eventually have to take up the question of whether Trump could be impeached, so he will agree to preside at the request of the Senate, without prejudice to reaching a contrary conclusion about the propriety of the trial when and if the case comes before the Court. Nixon cited the risk of bias if the courts had ruled on impeachment proceedings and then later had to review a criminal conviction of the same defendant on the same charges.
Deferring to the Senate the question of whether to preside, on either of these latter two bases, strikes me as the least defensible position for Roberts to take. But the very fact that either presiding or not presiding can be justified on the basis of multiple different theories is all the more reason why we should expect Roberts to put his reasons in writing. And reasoning them out will have some effect. Roberts cannot force the Senate to follow his lead, but if he accepts an invitation to preside and lays out a case for the trial as constitutionally proper, that is likely to be influential to some senators; if he accepts and says he is doing so because the decision belongs entirely to the Senate, that may embolden more senators to reach their own, independent constitutional judgments. If he refuses to participate, it will matter a good deal whether his reasons for doing so assume that the entire trial is constitutionally illegitimate. In any case, as an independent constitutional officer, he must make a decision; as the head of the judicial branch, he ought to explain it.