{"id":3388,"date":"2021-01-17T19:24:12","date_gmt":"2021-01-17T19:24:12","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3388"},"modified":"2021-01-17T19:24:12","modified_gmt":"2021-01-17T19:24:12","slug":"kamala-harris-should-let-john-roberts-off-the-hook","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2021\/01\/17\/kamala-harris-should-let-john-roberts-off-the-hook\/","title":{"rendered":"Kamala Harris Should Let John Roberts Off The Hook"},"content":{"rendered":"\n

(Sour<\/a>ces<\/a>)<\/p>\n\n\n\n

The\nConstitution provides<\/a> that when the President of the United\nStates is tried in the Senate, the Chief Justice of the Supreme Court, rather\nthan the Vice President, presides over the President\u2019s trial. This time last\nyear, the Chief Justice of the Supreme Court, John Roberts, fulfilled his\nconstitutional duty by presiding\nover Donald Trump\u2019s first impeachment trial.<\/a> The otherwise\nreserved Roberts made his uneventful political debut in the Senate, assuming a\nrole he likely despised given the extent to which he has avoided\nentangling himself in the partisanship<\/a> which has dominated his time on the Court.\nThis time, however, Mr. Roberts may be off the hook. <\/p>\n\n\n\n

While some have already assumed that John Roberts will preside over Trump\u2019s second trial, this conclusion is doubtful, and Mitch McConnell\u2019s most recent memo<\/a> on the upcoming trial flags this area of confusion. John Roberts, however, should not need to scurry from the Capitol steps over to the Senate chamber immediately after inaugurating Joe Biden on January 20th<\/sup>. While the Constitution designates the Chief Justice, rather than the Vice President, as the presiding officer when the President is tried, it says nothing about the trial of a former <\/em>president. This makes sense given that the likely reasons for removing the Vice President\u2019s participation from the President\u2019s trial are no longer operative when the impeached President has already left office. But, as a matter of practicality, the Vice President should preside over Donald Trump\u2019s trial, like she could over any other Senate trial,<\/a> for a separate reason: she can do something that the Chief Justice won\u2019t do\u2014break ties.<\/a> <\/p>\n\n\n\n

Article\nI, Section III of the United States Constitution<\/a>\nreads, \u201cWhen the President of the United States is tried, the Chief Justice\nshall preside\u2026\u201d Certainly, if the Senate began its trial today and concluded before\nnoon on January 20th<\/sup>, John Roberts would find himself entering the Senate\nchamber once again. As Senate Majority Leader McConnell has made clear,\nhowever, Donald Trump\u2019s trial will not occur until after<\/a>\nPresident Trump has left office. Therefore, Donald Trump will not be \u201cthe\u201d President\nof the United States by the time he stands trial. In fact, it is\nwell-established that the United States has one president\nat a time<\/a>, and on January 20th<\/sup>, his name with be Joe\nBiden. <\/p>\n\n\n\n

Yet,\nthere is a wrinkle in this analysis: the Senate\u2019s impeachment rules differ\nslightly<\/a> from the Constitution\u2019s language. While the Constitution instructs\nthe Chief Justice to preside over the \u201ctrial\u201d of the President, the Senate\nrules designate the Chief Justice as presider whenever the President is \u201cimpeached\u201d\u2014an\nearlier trigger point in the process<\/a>. <\/p>\n\n\n\n

The\nslight difference in the Senate rules\u2019 wording was most likely a drafting error\ngiven that the issue has never arisen before. But, even if the Senate rules were\nintended to expand the Chief Justice\u2019s role to a trial like this one\u2014and in\nturn, shrink the Vice President\u2019s role\u2014one should question whether the Senate,\nby virtue of its own rules, can strip the Vice President of her constitutional\nrole as president and tiebreaker of the Senate beyond what the Constitution\nalready allows. Of course, the Senate is the \u201cmaster\nof its own destiny,\u201d<\/a> but its rules cannot run overrun the\nConstitution.<\/p>\n\n\n\n

Stephen\nVladeck, Legal Professor at the University of Texas School of Law, takes the\nopposite side of the argument, arguing\nthat the Vice President should not preside over a former president\u2019s trial.<\/a> Professor\nVladeck argues that allowing the vice president to preside over a former president\u2019s\ntrial would lead to \u201codd\u201d results, like, for example, the Chief Justice being\nreplaced by the Vice President midway through the trial in the event of a mid-trial\npresidential resignation. But the result that Professor Vladeck describes as\n\u201codd\u201d is not odd at all. In fact, the result makes sense given the likely reasons\nfor substituting the Chief Justice for the Vice President in the first place. <\/p>\n\n\n\n

When\nthe current President is on trial, the Vice President has skin in the game. A\nconviction of the chief executive would immediately promote the Vice President\nto the top of the executive branch. James\nMadison warned against this type of conflict of interest<\/a>\nin Federalist No. 10, writing that \u201c[n]o man is allowed to be a judge in his\nown cause, because his interest would certainly bias his judgment, and, not improbably,\ncorrupt his integrity.\u201d Indeed, this presumption against self-dealing similarly\ndisallows judges from reviewing impeachment proceedings of other judges, because\nsuch\na power \u201cwould place final reviewing authority with respect to impeachments in\nthe hands of the same body that the impeachment process is meant to regulate.\u201d<\/a> The\nconstitutional provision requiring the Chief Justice to preside over the President\u2019s\ntrial likely\nreflects a similar concern.<\/a> Remember, the vice presidency was\noriginally awarded<\/a> to the runner-up in the electoral\ncollege, not a president\u2019s handpicked number two. This meant that the President\nand Vice President were something of political rivals, making the \u201cconflict of\ninterest\u201d justification for the Chief Justice substitution even stronger. Could\none imagine the spectacle of the election\u2019s loser becoming President after presiding\nover the trial of the victor?<\/p>\n\n\n\n

Of course, such a conflict will not exist once President Trump leaves office. Regardless of the Senate\u2019s verdict, Kamala Harris will remain Vice President, and Joe Biden, President. Sure, Kamala Harris and Joe Biden may stand to gain politically<\/em> if President Trump is convicted and disqualified from holding future office, but such a gain is speculative and unproven compared to the certain and mechanical promotion that the Vice President would receive if the current President was removed. In fact, Joe Biden and Kamala Harris may even prefer that President Trump is not disqualified so they can run against him again in 2024. <\/p>\n\n\n\n

A\nskeptical reader might question the entire basis of this piece and\npoint out that the presiding officer does not do much during a Senate trial\nanyway,<\/a> and that it hardly matters whether Roberts, Harris, or\nSanta Claus himself presides. Chief Justice Rehnquist probably agreed with this\nsentiment, stating\nthat during the Clinton trial<\/a> he \u201cdid nothing in particular, and . .\n. did it very well.\u201d <\/p>\n\n\n\n

But\nthere are circumstances\u2014important circumstances<\/em>\u2014when\nthe presiding officer can break a tie in a Senate trial. Of course, the most\nimportant vote, the vote to convict, requires\na two-thirds majority,<\/a> making a fifty-fifty tie irrelevant\nanyway. Other votes, however, only\nrequire a simple majority<\/a> to pass. For example, the trial\u2019s\nactual rules package is voted on by the entire\nSenate before the trial<\/a>. Likewise, a vote to disqualify the President from\nholding future office, unlike the initial vote to convict, only\nrequires a simple majority.<\/a> If Democrats and Republicans do not\nagree on the trial\u2019s rules, witnesses, or whether Mr. Trump should be\ndisqualified from running again in 2024, the presiding officer could break the\ntie.<\/p>\n\n\n\n

Make\nno mistake, if Chief Justice John Roberts does preside, he will certainly\nrefuse to break a tie in each of these situations. In\nfact, he said so himself<\/a>. During Trump\u2019s most recent trial, Senate\nDemocrats attempted to call witnesses<\/a> but most Senate Republicans opposed\nthe measure. Like the vote to disqualify, the\nvote to subpoena a witness<\/a> also only requires a simple majority\nto pass, and the Democrats were one vote away from reaching fifty votes (they\nended up losing the vote fifty-one to forty-nine). Anticipating the possibility\nof a fifty-fifty tie, Senate Minority Leader Chuck Schumer asked Chief Justice\nRoberts whether he planned to break a tie. In response, Roberts said that he\ncould not break a tie because the chief justice is an \u201cunelected official from\na different branch of government,\u201d making any tie-breaking vote cast by him inappropriate.\nNote that Chief Justice Roberts\u2019s opinion differed from that of his\npredecessor, Chief Justice Samuel Chase, who broke\nmultiple ties<\/a> during the Senate trial of Andrew Johnson.<\/p>\n\n\n\n

Chief Justice John Roberts\u2019s reluctance to break a tie creates a potential problem in the upcoming trial. Because there will be fifty Senate Democrats and fifty Senate Republicans\u2014a comically coincidental occurrence\u2014it is somewhat likely that at least one vote will end in a tie. Roberts has already tipped his hand; he will not swing the vote. Although some have suggested<\/a> that the Vice President can always break a tie, regardless of her role as presider, there is no reason to leave it to chance. If all Senate Republicans vote in the Republican President\u2019s interests, and the Democrats against, then there is only one person in the country who is explicitly allowed to break such a tie under the Constitution\u2014Kamala Harris.<\/p>\n\n\n\n

About the Author: Jimmy Pinchak is a third-year law student at Cornell and Chancellor of the Moot Court Board. Jimmy graduated from the School of Industrial and Labor Relations at Cornell in 2018 and is interested in criminal and constitutional law. <\/p>\n\n\n\n

Suggested Citation: Jimmy Pinchak, Kamala Harris Should Let John Roberts Off the Hook<\/em>, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Jan. 17, 2021), http:\/\/jlpp.org\/blogize\/kamala-harris-should-let-john-roberts-off-the-hook\/<\/a>.<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

(Sources) The Constitution provides that when the President of the United States is tried in the Senate, the Chief Justice of the Supreme Court, rather than the Vice President, presides over the President\u2019s trial. This time last year, the Chief Justice of the Supreme Court, John Roberts, fulfilled his constitutional duty by presiding over Donald…<\/p>\n","protected":false},"author":1,"featured_media":3414,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,21,25,27],"tags":[299,822,879,1221,1558,1628],"class_list":["post-3388","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-spotters","category-policycontributor-blogs","category-recent-stories","tag-chief-justice","tag-impeachment","tag-jlpp","tag-president-trump","tag-trial","tag-vice-president"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3388","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3388"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3388\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/3414"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3388"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3388"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3388"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}