There remain many unanswered questions about the historic second impeachment trial for Donald Trump. But it is now clear it will not begin until he’s left office and will be conducted entirely after Democrats have taken control of the U.S. Senate.
At one point, there was talk that Nancy Pelosi would rush the article of impeachment the House passed on January 13 over to the Senate, compelling the upper chamber to begin a trial immediately after Mitch McConnell’s planned January 19 resumption of Senate business and perhaps before Democrats took control upon the swearing in of the two new senators from Georgia, Raphael Warnock and Jon Ossoff.
But Pelosi held off on transmitting the article, and it now appears Warnock and Ossoff will be sworn in on January 20, after their January 5 elections are certified by Georgia’s secretary of state on January 19. With Kamala Harris being sworn in as vice-president the same day as Democrats secure 50 Senate votes, her party will take control of the Senate and inherit full responsibility for the impeachment trial, probably to McConnell’s great relief.
It’s still possible Pelosi will hold off on transmitting the impeachment article for a while, in part so that the Senate under Chuck Schumer’s leadership can get through a few Biden confirmations to put a national security infrastructure in place, and in part to give Schumer and McConnell time to negotiate procedures for the Trump trial. The Constitution and the standing Senate rules lay out many details of an impeachment trial, but others (notably the length of the trial as dictated by time set aside for presentation and rebuttal of charges and questioning by senators) are generally provided for in an ad hoc arrangement that is ideally enacted by unanimous consent.
One unusual wrinkle in the second Trump trial may be the identity of the presiding officer, according to Politico’s Playbook:
Multiple Republican and Democratic sources close to the impeachment trial negotiations tell us that Supreme Court Chief Justice JOHN ROBERTS is looking to avoid presiding over impeachment proceedings.
We’re hearing that Roberts, who for years has sought to keep the courts apolitical, was not happy he became a top target of the left during Trump’s first impeachment trial. “He wants no further part of this,” one of our Hill sources says.
John Roberts’s “out” would be the constitutional language that specifies a presiding role for the chief justice only in trials of sitting presidents, as SCOTUSblog noted just before the first Trump trial:
It is crucial to note why the chief justice appears only in presidential impeachment proceedings. The simple answer has to do with the often-forgotten constitutional power of the vice president to serve as president — meaning presiding officer — of the Senate. In any impeachment case other than that of the president, the vice president can preside, as Thomas Jefferson did in the very first impeachment, that of Senator William Blount in 1799, and as Aaron Burr later did in the 1805 trial of Justice Samuel Chase. However, the Framers recognized that it would be unseemly at best for the person who would assume the presidency in the event of conviction by the Senate to preside over the president’s trial. To prevent that obvious conflict of interest, they specified the chief justice as a stand-in presiding officer in presidential impeachment trials.
With Trump out of office, Harris isn’t going to inherit the top office upon a conviction, so there’s no reason for the chief justice to step in. But given Harris’s history as a senator who voted to remove Trump from office at the end of his first trial, compounded by the exceptional nastiness he has exhibited toward her (calling her a “monster” and a “communist” the day after her debate with Mike Pence last October), she may choose to step aside as well, which would devolve the presiding-officer role to incoming Senate president pro tem Pat Leahy, a veteran lawmaker (he’s been a senator since 1975) with a reputation for fairness and gravitas.
Democratic management of the trial notwithstanding, Senate Republicans hold Trump’s fate in their hands, with at least 17 defections being necessary to secure his conviction. While the near solidarity they achieved in Trump’s defense during the first trial is unlikely, they will have the same dodge available that Roberts is using to take a pass on holding the 45th president accountable for his misconduct: that the system was designed for sitting, not former, presidents. While Democrats will argue that the constitutionally sanctioned ban on future office-holding is the legitimate object of a trial, you can expect many Republicans to counter that the ban was intended to be a supplement, not an alternative, to removal from office. This question, having never been adjudicated in the courts, will hang over the proceedings from the get-go.
