Chief Justice Roberts is paving the way for Trump to claim his trial is unconstitutional

During my second year of law school at the University of Chicago, the constitutional law final included a question dealing with the hypothetical impeachment and trial of a president — where the chief justice did not preside over the trial. After the exam, I told a classmate the situation seemed so absurd and implausible that it would never happen. 

I was wrong. More than 30 years later, the Senate is set to try former President TrumpDonald TrumpJan. 6 panel faces double-edged sword with Alex Jones, Roger Stone Trump goes after Woodward, Costa over China Republicans seem set to win the midterms — unless they defeat themselves MORE and Chief Justice John Roberts will not preside over the trial. Instead, Sen. Patrick LeahyPatrick Joseph LeahyThe Hill's Morning Report - Ins and outs: Powell renominated at Fed, Parnell drops Senate bid On The Money — Biden sticks with Powell despite pressure Welch to seek Senate seat in Vermont MORE (D-Vt.), president pro tempore of the Senate, an elected official and a member of the judiciary, oversees the hearing. This is deeply troubling.

The Constitution calls for the chief justice to preside over an impeachment trial. By stepping aside, Roberts not only is failing to meet his duty, but his actions bring an air of illegitimacy to the trial. Impeachments are designed to bring the entire government together for a nonpartisan affair. If Trump is convicted, he would be ineligible to hold federal office. Without the presence of the chief justice, and if there is a conviction, Trump can argue the ruling was unconstitutional because the rules according to the Constitution were not followed. 

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For Roberts to recuse himself flies in the face of the past two-and-a-half centuries of the evolution of the presidency itself because it allows someone who otherwise might be ineligible to become president to try again. As the nation’s chief magistrate, Roberts is doing our republic a disservice.

Trump has hinted at a 2024 run for president. If, as has been reported, he does make another attempt at the presidency despite his conviction, among the first things he could claim is that the conviction was unconstitutional. He is no stranger to labeling facts as fake and, this time, the law could be on his side if he claims the wrong person presided over his impeachment trial. 

If a lawsuit about his eligibility followed, it inevitably would reach the Supreme Court. The chief justice would have to recuse himself because his refusal to preside is an issue in the case. Even if the court decided that it lacked the power to decide the issue — which would be likely under the “political question doctrine” — the damage would have been done. The chief’s non-role would be central to the constitutionality of a presidential campaign, and fodder for the campaign trail. It gives Trump leverage to make such a claim and opens a path for him to pursue the presidency in 2024.

Suppose there is an acquittal when Roberts did not preside. The constitutionality of the trial still could become a political football. During Roberts’ confirmation hearing as chief justice, he said: “Justices are servants of the law … like umpires. Umpires don’t make rules, they apply them.” He followed through on his words when presiding over Trump’s first impeachment trial. His neutrality in presiding put beyond question any claim that the rules were being bent. This key pillar of our justice system is lost when an elected official holds this role because it can be argued that the ruling is political. Just last week, Sen.Rand Paul (R-Ky.) told Sean Hannity on Fox News that it would be a “fake, partisan impeachment” proceeding without the chief justice. The groundwork is being set by Trump supporters.

The Constitution does not make the trial important; the Constitution simply recognizes the importance of the trial. The trial of a president is the most momentous act the Senate can be called on to perform. If convicted, Trump would be the only native-born American over age 35 to be prohibited from holding the presidency (aside from former two-term presidents disqualified by the 22nd Amendment). The Founders wanted the entire government involved in a decision of that order. Impeachment by the House. Trial in the Senate. Trial presided over by the Chief Justice of the United States. The gravity of the trial demands the chief’s presence. The dignity of the process requires it.

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To be sure, the role of the chief justice itself would become political, and the politicization of the judiciary in the public mind would grow beyond measure. Before stepping into his current role, Roberts said it would be his job to enforce the law. By refusing to preside over the impeachment trial he is doing the opposite. 

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts famously said in 2018. But his decision to not stand firm on what is outlined in the Constitution and to play the game of semantics means he is jeopardizing our justice system.  

More than three decades years later, I still think about that exam question and what it meant. The Constitution requires the chief justice to preside over an impeachment trial because the integrity of our government — and who may serve as the nation’s leader — is at stake. That has not changed since the Founding Fathers laid out the principles of our country. Chief Justice Roberts is doing what he said he would never do: making his own rules.

Gregory Mark is a law professor and former law dean at DePaul University, specializing in law and constitutional history. He is a former Iran/contra prosecutor and a Public Voices Fellow through The Op-Ed Project.