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Why John Roberts's absence from Senate trial isn't a surprise

Chief Justice John Roberts’s apparent decision to sidestep former President TrumpDonald TrumpNoem touts South Dakota coronavirus response, knocks lockdowns in CPAC speech On The Trail: Cuomo and Newsom — a story of two embattled governors McCarthy: 'I would bet my house' GOP takes back lower chamber in 2022 MORE’s upcoming impeachment trial met with some criticism but little surprise among court watchers who have long noted his desire to shield the Supreme Court from unnecessary exposure to the political fray.

Roberts was constitutionally required to preside over the Senate trial last year when Trump stood accused of bribing Ukraine's president to investigate President BidenJoe BidenNoem touts South Dakota coronavirus response, knocks lockdowns in CPAC speech On The Trail: Cuomo and Newsom — a story of two embattled governors Biden celebrates vaccine approval but warns 'current improvement could reverse' MORE, then a candidate, ahead of the 2020 election, a charge Trump was ultimately acquitted of by the GOP-held Senate.

That duty was one Roberts appeared to discharge with some reluctance, though, perhaps owing to his preference for insulating himself and fellow justices from the political glare. As one veteran Supreme Court advocate told The Hill at the time, Roberts had figured out how to “look the part” and “play the part,” but he did not “want the part.”

This time around, Roberts apparently believes the Constitution has let him off the hook.

Since Trump will be a private citizen when he’s tried for allegedly inciting the deadly Jan. 6 insurrection at the Capitol, many experts agree that Roberts is under no legal obligation to wield the gavel when proceedings begin the week of Feb. 8. 

The Founders made clear that when an impeachment trial concerns a sitting president, “the Chief Justice shall preside.” But they did not explicitly prescribe the same role when the high crimes and misdemeanors in question were carried out by a president who has since departed the White House, as Trump did on Jan. 20.

Instead, that duty will fall to Sen. Patrick LeahyPatrick Joseph LeahyPress: The big loser: The Republican Party Senate acquits Trump in 57-43 vote Trump lawyer irked after senators laugh at him MORE (Vt.), the most senior member of the Senate Democratic Conference. The president pro tem was sworn in to preside over the trial on Tuesday.

An aide to Leahy told The Hill on Monday that the decision over who would preside had been up to Senate Majority Leader Charles SchumerChuck SchumerThe bizarre back story of the filibuster Hillicon Valley: Biden signs order on chips | Hearing on media misinformation | Facebook's deal with Australia | CIA nominee on SolarWinds House Rules release new text of COVID-19 relief bill MORE (D-N.Y.) and Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThe bizarre back story of the filibuster The Bible's wisdom about addressing our political tribalism Democrats don't trust GOP on 1/6 commission: 'These people are dangerous' MORE (R-Ky.). According to Schumer, Roberts was offered the job but turned it down.

“The Constitution says the chief justice presides for a sitting president. So it was up to John Roberts whether he wanted to preside with a president who’s no longer sitting — Trump,” Schumer told MSNBC’s Rachel MaddowRachel Anne MaddowTim Ryan: Prosecutors reviewing video of Capitol tours given by lawmakers before riot League of Conservation Voters adds racial justice issues to 2020 congressional scorecard Newly released footage shows Schumer's 'near miss' with Capitol rioters MORE on Monday. “And he doesn't want to do it.”

Schumer’s office did not respond when asked about his exchange with the chief justice, and a spokesperson for the Supreme Court did not respond to multiple requests for comment on Roberts’s thought process in deciding against participating in the trial.

Substituting Roberts with Leahy has stirred some controversy. Republicans have argued that Roberts’s absence undermines the legitimacy of the trial, and that it’s inappropriate for a sitting Democratic senator to serve as presiding officer.

“If the chief justice doesn’t preside, I think it’s an illegitimate hearing and really goes to show that it’s not really constitutional to impeach someone who’s not president,” said Sen. Rand PaulRandal (Rand) Howard PaulOvernight Health Care: 50 million coronavirus vaccines given | Pfizer news | Biden health nominees Rand Paul criticized for questioning of transgender health nominee Haley isolated after Trump fallout MORE (R-Ky.).

Other Senate Republicans say Leahy’s role as presiding officer presents an inherent conflict of interest. Leahy is expected to cast a vote in Trump’s upcoming trial, and last February he voted to convict Trump on two articles of impeachment related to Trump's dealings with Ukrainian officials.

Sen. John CornynJohn CornynPolitics, not racism or sexism, explain opposition to Biden Cabinet nominees Biden pledges support for Texas amid recovery from winter storm Partisan headwinds threaten Capitol riot commission MORE (R-Texas), a member of the Judiciary Committee, said having a Democrat preside over the upcoming trial “really undermines the legitimacy” and that “the process itself already looks like a railroad job.”

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Leahy, for his part, has vowed to administer “impartial justice.” On Monday, he pushed back against Republican criticism, emphasizing that his role as presiding officer would be procedural rather than substantive.

That approach would largely mirror the one Roberts took during Trump’s first impeachment trial.

At various points, Roberts injected himself into the proceedings to maintain decorum and soothe tempers. But aside from a few uncomfortable moments, he maintained a mostly ceremonial role. 

He did this largely by embracing the consensus view among scholars that the Constitution endows the Senate itself — and not the presiding officer — with final say over all critical matters at an impeachment trial.

One moment of heightened drama came when Schumer argued that Roberts could cast a tie-breaking vote on the issue of whether to hear from additional witnesses. As precedent, Schumer cited Chief Justice Salmon Chase, who had broken a tie in the 1868 impeachment trial of former President Andrew Johnson.

In response, Roberts said Chase’s vote had concerned a narrow procedural issue, and Roberts made clear his view that he lacked the power to cast votes alongside senators on more substantive questions. 

“I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed,” he told Schumer.

Those who shared Roberts's view that a chief justice's role in impeachment trials is largely ministerial were generally pleased with his modest handling of the event. 

“My sense going into the trial was that the chief justice would not want to make himself the story,” Sarah Binder, a senior fellow at the Brookings Institution, told The Hill at the time, adding that “he succeeded in that goal.”

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Despite the positive reviews Roberts garnered after Trump's first impeachment trial, many court watchers were unsurprised to learn on Monday that the mild-mannered 66-year-old jurist who famously said judges should simply “call balls and strikes” had bowed out of the upcoming proceedings.

Still, some legal experts expressed disappointment in Roberts, saying his absence had given ammo to Republicans who sought to taint the proceedings even before they'd begun.

Frank Bowman III, a University of Missouri law professor and author of a recent book on impeachment, said he would have preferred that Roberts preside over the upcoming trial, even though he believes his absence is constitutional.

Bowman told The Hill the arguments being lobbed by Senate Republicans shows that Roberts’s non-participation has already given them “another procedural excuse to vote against conviction in a case that’s a slam dunk on the facts.”

“It would be better to have Roberts in the chair. But not, I think, an error of constitutional dimension not to have him there,” he said. “Still, since I have reason to think that Roberts was requested to appear, but declined, I find myself disappointed in him. I think he’s shirking here.”