Roberts won’t preside over impeachment trial, but Leahy set to follow his 2020 script

Sen. Patrick Leahy is expected to adhere largely to the script of Chief Justice John Roberts when he presides over the second impeachment trial of former President Donald Trump this week.

But unlike when the robe-clad Roberts oversaw then-President Trump’s 2020 trial, Leahy will routinely slip into his senator role for votes, including on whether to convict or acquit the former president of inciting the deadly January 6 insurrection at the Capitol.

The 80-year-old Vermont Democrat — who is the chamber’s president pro tempore, or the longest serving senator of the majority party — could also end up voting on knotty motions related to evidence and witnesses.

Roberts declined to vote in last year’s trial related to Trump’s Ukrainian dealings, and when specifically asked if he would break a tie, the inscrutable chief justice said, “It would be inappropriate for me, an elected official from a different branch of government” to steer the outcome.

“That isn’t an issue for Leahy,” observed Michael Davidson, a former Senate legal counsel. “He is part of the body that is conducting the trial. … His state will still have his representation in the Senate.”

Just as the first-ever impeachment trial of a former president will break new ground in America, so will the dual roles of Leahy. He will have a model in the actions of two chief justices of the United States, Roberts with Trump in 2020 and William Rehnquist with President Bill Clinton in 1999.

Sources familiar with Leahy’s preparation say he is reviewing how the two men presided and is looking to patterns set by the chief justices in an effort to enforce Senate trial procedures, maintain a sense of decorum and avoid driving the arguments of either side.

Leahy can also look to the pattern of senators who presided at trials of impeached US judges in recent decades, including the 2010 trial of Louisiana-based US District Judge Thomas Porteous, overseen by the late Sen. Daniel Inouye of Hawaii.

Leahy will necessarily break, however, from the mainly ministerial position assumed by Roberts and Rehnquist.

Whether any of Leahy’s votes are cast on close fractious motions will depend on how the trial scheduled to begin Tuesday unfolds and the dueling strategies of the US House impeachment managers and Trump legal team.

Leahy already voted once after being sworn on January 26 as presiding officer, with the 55-45 majority that rejected a move by Kentucky Republican Sen. Rand Paul to block the trial from going forward. That vote could be a preview of the ultimate result, an insufficient number of Republicans voting with Democrats and a Trump acquittal: The Senate trial process for a president resembles that for judges and other officials impeached by the US House. In all cases, the Constitution requires a two-thirds vote for conviction.

Leahy, who has vowed to be fair and impartial, is declining interviews, according to a spokesman.

How Roberts and Rehnquist ran trials

Roberts and Rehnquist tried to ensure an orderly proceeding and adopt a secondary role for themselves. They kept the clock and enforced rules that the Senate leadership had devised. They conferred with the Senate parliamentarian (currently Elizabeth MacDonough) and worked from carefully outlined scripts.

Roberts intervened last year to admonish a testy exchange between House Judiciary Chairman Jerry Nadler and White House counsel Pat Cipollone. Roberts quoted from the impeachment trial of Judge Charles Swayne of Florida.

“In the 1905 Swayne trial, a senator objected when one of the managers used the word ‘pettifogging,’ and the presiding officer said the word ought not have been used,” Roberts said in the after-midnight episode. “I don’t think we need to aspire of that high a standard, but I do think those addressing the Senate should remember where they are.”

When then-Senate Minority Leader Chuck Schumer put Roberts on the spot about voting to break a tie, the chief justice said, “If the members of this body elected by the people and accountable to them divide equally on a motion, the normal rule is that the motion fails.” Roberts refused to “assert the power to change” a result.

In 1999, Rehnquist never faced such a question and when the trial ended enjoyed taking a page from Gilbert and Sullivan’s comic opera “Iolanthe” to say, “I did nothing in particular, and did it very well.”

Roberts, when he was finished last year, expressed his gratitude to senators for assisting him in his “ill-defined responsibilities in an unfamiliar setting.”

The Constitution says only that, “When the President of the United States is tried, the Chief Justice shall preside.”

Leahy had previously said Roberts was “the first choice” for this second trial of Trump, although he is no longer a sitting president. Schumer, now Senate majority leader, said in an interview on MSNBC’s “The Rachel Maddow Show,” that “it was up to John Roberts whether he wanted to preside with a president who’s no longer sitting … And he doesn’t want to do it.”

Roberts has declined requests to comment on the matter.

Leahy’s plans

Leahy will naturally forgo the black robe, but he will adopt some of the trappings of a special presiding officer. He is expected to work out of the glittery, chandeliered President’s Room near the Senate chamber, as the two chief justices did. And as they did, sources familiar with the senator’s preparation say Leahy will take his lead on the procedural details from Senate leaders, including when to begin and end daily.

Senate rules, not judicial practice, generally cover impeachment trials, which are inherently political affairs. The Supreme Court in a 1993 case said the Senate has the sole responsibility for trying an official who has been impeached. In 1999, Rehnquist described the Senate as sitting essentially as a court, not simply as a panel of jurors.

Although the Senate’s current rules were outlined principally in 1986, they originated with the 1868 trial of President Andrew Johnson. Johnson, Clinton and Trump (twice) are the only US presidents ever to be impeached. In those prior trials, none was convicted.

Because conviction requires a two-thirds vote, Leahy’s position as Democratic senator is unlikely to be determinative. But other procedural matters could pose complicated dilemmas.

Senate rules say the presiding officer may rule on all questions of evidence, but that if a senator objects, the officer can be reversed by a majority vote of the Senate.

Leahy may sidestep ruling on a controversial issue that would predictably prompt an objection, and instead put the matter directly to the full Senate, which is currently divided 50-50 between Republicans and Democrats.

Trump denies that he incited the mob that descended on the Capitol, and his lawyers argue that the Senate has no authority to try him. They say once he left office on January 20, he can no longer be subject to a Senate impeachment trial.

And they hold up the absence of Roberts as one piece of evidence for the overall unconstitutionality of the trial, asserting, “(T)he constitutional mandate for the Chief Justice to preside at all impeachments involving the President evidently disappeared.”

On the broad issue of the constitutionality of trying Trump, the House managers insist, “There is no ‘January Exception’ to impeachment or any other provision of the Constitution. A president must answer comprehensively for his conduct in office from his first day in office through his last.”