What a gift to Republicans this is, from a guy not known for such things.
New – Sen. Patrick Leahy, the Senate pro tempore, is expected to preside in impeachment trial, two sources tell me and @JoanBiskupic – not Chief Justice John Roberts
Senators preside when the person facing trial isn’t the current president of the United States, per one source
— Manu Raju (@mkraju) January 25, 2021
It’s obvious why he’s dodging. Roberts is an institutionalist, a man so obsessed with preserving the Court’s image as a nonpartisan arbiter that he’s alleged to have voted with Democrats in certain high-profile cases to prove the point. He’s already presided over one hyperpartisan impeachment trial for Trump and now here he is suddenly faced with another. Participating won’t help convince Americans that the Court is an apolitical body, above the messy fray.
Yet by ducking the process, he’s strengthening the Republican argument that the Senate lacks jurisdiction to try an ex-president. “When the President of the United States is tried, the Chief Justice shall preside,” reads Article I, Section 3 of the Constitution. Now here’s Roberts declaring that Trump’s current status as an ex-president really is a meaningful distinction for constitutional purposes such that he needn’t show up. He could have just as easily decided that he has an obligation to preside because, after all, Trump is being tried for actions he took while in office. Nope, says Roberts. Whether he’s still in office or not really does matter.
It’s child’s play to extend that logic to “If he’s not still in office, we shouldn’t have a trial at all.” Roberts is lending the Court’s authority to the proposition that the upcoming trial isn’t quite as legitimate as a traditional presidential impeachment trial is. In fact, Republicans like Rand Paul have already seized on his recusal as evidence that the entire process is bogus:
The Constitution says two things about impeachment — it is a tool to remove the officeholder, and it must be presided over by the chief justice of the Supreme Court.
Neither one of those things will happen. President Trump is gone, and Justice John Roberts, properly noticing the absence of an officeholder being impeached, is declining to preside.
That settles it for me.
If Justice Roberts is not presiding over this, then it is not impeachment. This charade will be nothing more than bitter partisanship and political theater.
Paul’s piece is titled “Boycott sham impeachment,” but I assume he doesn’t mean a true boycott where he refuses to attend the daily proceedings. If he did that, it would lower the number of votes Democrats need to convict Trump. Two-thirds of a 99-person jury is 66, after all, not 67.
Other anti-impeachment arguments are less sophisticated than Paul’s, and Paul’s wasn’t real sophisticated to begin with:
Impeachment is the zenith of cancel culture.
— Rep. Matt Gaetz (@RepMattGaetz) January 25, 2021
That’s basically MAGA mad libs, trying to harness some culture-war grievance towards a completely unrelated political end. It’s like saying “Impeachment is the Big Tech of the Constitution.” It’s not supposed to make sense, it’s just a signal to populists about how much they should loathe impeachment: As much as cancel culture. Various others have pointed out on social media this afternoon that Gaetz’s argument is a strange one coming from a member of a party that routinely extols the Constitution as a work of political genius produced by an unrivaled collection of geniuses. He should ask himself why those geniuses saw fit to give Congress the power to “cancel” the president in certain circumstances instead of waiting for the electorate to do it.
This guy should ask himself too, as he also seems to have trouble grasping the principle here:
When “Fox News Sunday” host Chris Wallace asked the senator about the idea that Trump should be impeached to ban him from running again, the Florida Republican quickly shot down the argument.
“I think that’s an arrogant statement for anyone to make. Voters get to decide that. Who are we to tell voters who they can vote for in the future?” [Marco] Rubio said. Trump’s second Senate impeachment trial starts Feb. 8, and a conviction would disqualify him from running for president ever again.
You’re a United States senator, my man, duly empowered by the U.S. Constitution to disqualify people convicted by your chamber from holding public office. In fact, when the Constitution was enacted, senators weren’t directly elected by the people themselves. The Founders expressly authorized a group of unelected aristocrats in the upper chamber to prohibit the people from voting for someone who’d been found guilty of high crimes or misdemeanors. You can think that’s “arrogant” if you like, but there are many provisions in the Constitution designed to give elites (usually judges) the power to block majorities from doing stupid or pernicious things. If Rubio thinks that’s arrogant, that’s fine. But let’s make sure he stays away from the “constitutionalist” label in the future.
Here he is yesterday taking at greater length yesterday about impeachment, insisting that he’ll vote to end the trial at the first opportunity because it’d be bad for the country. Which I’ll translate as “Because I have a Senate primary coming up in 2022 and I’m going to get wrecked if I don’t appease the terrorists who attacked the Capitol on January 6.”
Marco Rubio acknowledges Trump "bears responsibility" for the Capitol insurrection, but insists holding him accountable with an impeachment trial is the wrong move because it'll "stir up" the country again pic.twitter.com/egtvNAgrS8
— Aaron Rupar (@atrupar) January 24, 2021
Update: John Cornyn is also lunging at Roberts’s recusal as evidence that the trial is out of order:
Unprecedented; never happened in all of American history. So there isn't a Senate rule or constitutional provision authorizing this. How does a Senator preside, like a judge, and serve as juror too? #conflictofinterest https://t.co/CBGGzE2FDC
— Senator John Cornyn (@JohnCornyn) January 25, 2021