If former President TrumpDonald TrumpTrump goes after Cassidy after saying he wouldn't support him for president in 2024 Jan. 6 panel lays out criminal contempt case against Bannon Hillicon Valley — Presented by Xerox — Agencies sound alarm over ransomware targeting agriculture groups MORE, who is now a private citizen, will be tried by the Senate, who will be the presiding officer? Indeed, Majority Leader Charles Schumer declared that the House will deliver its impeachment article next week and insisted that the process will move forward, so this is not just an issue for a law school exam or a dinner table trivia debate. This is a serious legal matter that must be resolved in a matter of days.
The Constitution provides, “When the president is tried, the chief justice shall preside.” But there is just one president of the United States, and his name is Joseph Biden. Donald Trump is no longer the president anymore. So it would be improper, and in violation of the Constitution, to have the chief justice of the Supreme Court preside over a trial in the Senate. This remains even though Trump was impeached while he was still president. The Constitution is clear in that it uses the word “tried.”
If the Senate were to invite Chief Justice John Roberts to preside over the trial of Trump, he would have to decide whether to accept that invitation. He will thus likely review the words of the Constitution, the impeachment clause, and any relevant precedents. He will then decide the Constitution provides him no role for the trial of a former president.
The Constitution assigned the chief justice the role of presiding officer only in the case of a Senate trial of a sitting president because it would constitute a conflict of interest for the president of the Senate, which is the vice president, to preside over that trial. If the president were to be removed, after all, the vice president would take office. So the Framers selected a judicial official who is not in the line of succession to be the presiding officer for such a trial. But this conflict does not exist, at least not directly, if a former president is on trial. So who would preside over the trial of Trump if Roberts were to decline that role?
In the normal course, Vice President Kamala Harris would preside, since she has the role of president of the Senate. But in this instance, the vice president may also have a conflict of interest. It is possible that she may run for president in 2024. Biden would be over 80 years old then, so it is possible that he will not seek reelection. The most obvious candidate to succeed him would be his vice president. Would this not be a conflict of interest for this potential candidate to preside over a trial whose critical function is to bar a past president from running again?
Conflicts of interest involve not only actual prejudice but the appearance of prejudice. Would it not appear to be a conflict of interest with Harris to make rulings regarding the dismarment of the leading potential candidate against her? Who should preside if the chief justice and the vice president should not? How would that decision be made? The Constitution provides for no such process. In this instance, the Senate could elect the presiding officer or the majority leader would appoint one. Because Democrats now control the Senate, with the vice president casting the vote to break a tie, that would also create another appearance of conflict.
The point is that the Framers never considered a Senate trial of a former president or future president. If they considered such a bizarre scenario, they would have provided the answer on the issue of who presides. That they did not is more evidence beyond the words of the Constitution that the former president could not be tried by the Senate.
To place a private citizen on trial in the Senate also would be a bill of attainder, which is prohibited by the text of the Constitution. A bill of attainder is any legislature trial of one individual that could result in a punishment, including future disbarment from running for office. The Senate trial of Trump would certainly fit that definition.
People often say the cliche that “no one is above the law.” That is true not only of a president but of Congress as well. The Constitution provides for a special oath to be taken by senators in impeachment and removal trials, “When sitting for that purpose, they shall be on oath or affirmation.” This oath includes a pledge to abide under the limitations of the Constitution. Those limitations include not putting private citizens on trial. The Senate itself should not be above the law and the Constitution.
Congress should do in this instance what it did when Richard Nixon was forced to resign and leave office. It should do nothing. That is its proper role for the instance of an impeached former president.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is author of the recent book “Cancel Culture: The Latest Attack on Free Speech and Due Process” and his podcast “The Dershow” is also now available on Spotify and YouTube. You can find him on Twitter @AlanDersh.