As Donald Trump’s second impeachment trial begins today, not enough attention has been paid to the fact that Chief Justice Roberts will not be presiding.

Senate Democrat Richard Blumenthal, a lawyer, former federal prosecutor and member of the Judiciary Committee, believes the Chief Justice should preside.

Elizabeth Warren adopts the far more aggressive position that the Chief Justice must preside as part of “his constitutional duty.”  For good measure, she adds, “I can’t imagine why a Supreme Court justice would not do his duty.”

The man who isn't there

Senate Majority Leader Chuck Schumer presents yet a third constitutional argument.  He claims that the Constitution commits the decision as a matter of choice to the Chief Justice: “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 is no longer sitting, Trump, and he doesn’t want to do it.” Senator Leahy, who has been designated to preside, agrees that the Chief Justice would be “the first choice.”

All of these assertions are manifestly incorrect and for reasons of considerable bearing on the proceeding.

Working in order, Blumenthal does not pretend to a legal argument.  He wants the Chief Justice to preside for its beneficial public relations impact.  The world’s greatest deliberative body merits better than this, especially given Blumenthal’s senior status on the Judiciary Committee of all things.

Warren presents a claim shared by exactly no one.  For a partisan advantage, she recklessly claims the Constitution places an affirmative burden on the Chief Justice to preside over the trial of a former president, also known as a private citizen.  It seems almost churlish to ask where in the text or even structure of the Constitution such a hidden duty lies.  Does she truly believe this outlandish claim or is just understood nowadays that making wantonly false statements about the Constitution is part of senatorial privilege.  Little people be silent.

Schumer is a different story.  His statement is the reason people despise the oiliness of politicians, saying just enough to sound reasonable, for unwarranted ends.  Schumer intimates that he directly contacted Roberts and was told by Roberts that he would not preside.  Schumer’s office conveniently won’t confirm or deny.  Right on cue, the headlines read “Roberts doesn’t want to preside over Trump’s second impeachment trial: Schumer.”

In matters of the Constitution, not wanting to preside is a world apart from not presiding.  Schumer’s construction is remarkably self-serving.  It sets forth as true that the Chief Justice believes he could preside (“so it was up to John Roberts whether he wanted to preside”), but for reasons unknown chooses not to (“he doesn’t want to do it”).  That places the onus for not presiding on the Chief Justice, and not so incidentally adds the veneer of constitutionality to the proceeding.  Choosing not to preside directly implies he could preside.

These are serial untruths.  The Supreme Court’s position is crystal clear.  It has no comment on the absence of Justice Roberts from the second impeachment trial.  “No comment” means far more that it seems.  It precludes any assertion that Roberts was ever formally requested to preside.  Absent the request, no claim can be made, a la Schumer’s strategically misleading statement, that Justice Roberts chose not to preside.

But that is nothing compared to the constitutional violence at work.  Justice Roberts is not presiding in the second impeachment trial of Donald Trump because he has no constitutional authority to preside.  It is not a choice.  Likewise, the Chief Justice presides over the impeachment trial of the President, not by choice, but by constitutional mandate.  He must preside.  These are flip sides of the same coin.  With the sole exception of presiding over the trial of the president, the judiciary cannot and does not have any role in Congress.  The Constitution is built on the scaffolding of separation of powers.

Consider in this context whether the Chief Justice, while presiding over an actual trial of “the President,” can supply the deciding vote in the event of a 50-50 deadlock.  Chief Justice Roberts was directly asked this question during the first impeachment trial of President Trump.  His response was succinct. “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 [a tie] so that the motion would succeed.”

Law Professor Ann Althouse has cut to the essence of the constitutional problem created by the Democrat’s theatrics. “If the Chief Justice is permitted, then he is required. If the Chief Justice is required, then what Leahy is about to do [preside over the trial as the second-choice option] is not a duty. Taking on a role that is not yours under the Constitution is an abuse of power.”

Invoking the constitutional power to remove a President from office is the most solemn act that can be exercised in our democratic republic, which accounts for its rarity in American history. By transforming the role of the Chief Justice into an impeachment choice, rather than the clear-cut duty to preside only for the trial of a sitting President, Senate Democrats have abandoned the pretense to adhering to their constitutional duty.

It is obvious why they are straining so hard.  Having Senator Leahy preside looks partisan because it is partisan. No one believes he will preside without having pre-determined Trump’s guilt. More problematically, Roberts’s absence strongly supports, but does not conclusively prove, that under the Constitution there is no authority to impeach and try a private citizen, including a former president.

What is unarguable is that the means the Democrats have chosen to proceed, arguing for the voluntary participation of the Chief Justice in the Senate trial of a former president, is itself an abuse of the Constitution.  By their own argument, second-choice Leahy is usurping the role assigned by the Constitution to the Chief Justice.  Alternatively, the Chief Justice has no authority to preside because “the President” is not being impeached and therefore the Senate lacks the power to proceed.  It is one or the other, and neither works.

In the eighteenth century, it became common practice to debase currency by clipping the circumference of gold and silver coins. We are witnessing today a comparable debasement of the Constitution where the sole actual intent is, by any means necessary, to impact the 2024 election.  Even rabid Trump haters ought to recognize that impeaching and trying a president voted out of office, in the absence of the Chief Justice, is the wrong way to win an election.  We as citizens are left poorer.

Photo credit: Official portrait

William Levin is a graduate of Yale Law School and a former special assistant in the Office of Legal Counsel in the Department of Justice.