On Monday, sources told CNN’s Manu Raju that Sen. Patrick Leahy (D-Vt.) “is expected” to preside over former President Donald Trump’s second impeachment trial. Supreme Court Chief Justice John Roberts, who presided over Trump’s first impeachment trial, will not oversee the proceedings in the second.
“Senators preside when the impeached is not *the* [current] president of the United States,” a Senate source told The Washington Times.
While sources have suggested Leahy will preside, there is a public official more naturally suited to presiding at the impeachment trial of a former president — namely the president of the Senate, the vice president.
Yes, Vice President Kamala Harris is the most natural person to preside over Trump’s second impeachment trial.
The Founders stipulated that the chief justice will preside in impeachment trials of the president partly because the vice president has a perverse incentive to remove the sitting president. Yet if the Senate convicts Trump of high crimes and misdemeanors in this trial, Kamala Harris will not become president.
Indeed, some have argued that this impeachment trial is a sham because Trump will not be president during the trial.
“The story is the chief justice is not going to be asked,” Sen. Rand Paul (R-Ky.) told Fox News. “He has privately said he is not supposed to come unless it is the impeachment of the president so this is an illegitimate procedure.”
It remains unclear whether Roberts actually called the procedure illegitimate but many Republicans have argued that the Senate should not hold an impeachment trial for the former president. The Constitution suggests impeachment aims to remove a sitting president, not convict a former president.
Yet shortly after the founding, the British Parliament impeached Warren Hastings, the first governor-general of Bengal, two years after Hastings had left office. This history suggests that the Founders would not have objected to the idea of holding an impeachment trial for a president after his term in office.
House Democrats rushed the second impeachment of Trump for allegedly inciting an insurrection on January 6, claiming that he was a danger to the office of the president and that he needed to be removed immediately. This might have made sense if Democrats impeached Trump on January 6 or January 7, but they did not present the article of impeachment until January 11 and they did not vote until January 13. As with the first impeachment in 2019, House Speaker Nancy Pelosi (D-Calif.) delayed the transmission of the article of impeachment to the U.S. Senate.
While Democrats did not impeach Trump fast enough to remove him before January 20, they did rush the impeachment process, proceeding without any fact-finding mission beforehand and arguably watering down the process.
It does seem odd for the Democratic-majority Senate to have Leahy, rather than Kamala Harris, preside over the impeachment trial. Harris, as president of the Senate, seems the more natural choice. However, Harris has a terrifying record of prosecuting her political opponents as attorney general of California. Perhaps Democrats rightly fear that the spectacle of Harris presiding over Trump’s impeachment would reveal just how cold the new vice president is.
It seems Leahy might end up presiding over the trial, scheduled to begin on February 8, 2021, but the published rumors do not rule out Kamala Harris taking up that role.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.