Chief Justice Roberts’ quiet choice not to preside over Senate impeachment trial reveals trial’s questionable legality

George Mason, a delegate to the Constitutional Convention, would likely find the current U.S. Senate trial of former President Donald Trump appalling. His writings in 1787 may explain, in part, why Chief Justice John Roberts chose not to preside over the trial.

The Golden Hammer Staff Reports

Washington, D.C., February 11 – Chief Justice of the United States John Roberts chose not to attend or preside over the United States Senate’s impeachment trial of former President Donald Trump. Instead, United States Senator Patrick Leahy, the President Pro Tempore of the Senate, is acting as the presiding officer during the trial.

The national news media gave very little coverage to the significant absence of Roberts from the trial, because his decision to decline to preside reveals the intellectual disdain he has for the proceeding.

Roberts never announced or commented on his declining to participate in the Trump impeachment trial. Only Leahy issued a press release on January 25, 2021, the entirety of which follows:

“The president pro tempore has historically presided over Senate impeachment trials of non-presidents.  When presiding over an impeachment trial, the president pro tempore takes an additional special oath to do impartial justice according to the Constitution and the laws.  It is an oath that I take extraordinarily seriously.

“I consider holding the office of the president pro tempore and the responsibilities that come with it to be one of the highest honors and most serious responsibilities of my career.  When I preside over the impeachment trial of former President Donald Trump, I will not waver from my constitutional and sworn obligations to administer the trial with fairness, in accordance with the Constitution and the laws.

Leahy’s press statement is very significant, because he acknowledged that the Senate trial involves a “non-president.”

Leahy’s statement and Chief Justice Roberts’ decision to avoid the trial altogether call into question the Constitutional propriety of the proceeding altogether.

Article I, Section 3, Clause 6 of the United States Constitution provides, “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

Two Delegates to the Constitutional Convention in 1787 wrote about impeachment trials during the Convention’s deliberations. George Mason of Virginia wrote:

“[S]ome provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the Chief Magistrate. The limitation of the period of his service . . . was not a sufficient security. He might lose his capacity after his appointment. He might pervert his admiration into a scheme of peculation or oppression. . . . In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.”

Edmund Randolph of Virginia and also a Delegate to the Constitutional Convention wrote:

“The Executive will have great opportunities of abusing, power; particularly in time of war when the military force, and hi some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults and insurrections.”

In other words, the Chief Justice acts as the presiding officer in a presidential impeachment proceeding, because, as Alexander Hamilton wrote in Federalist Number 65, it was important to “unite…the Supreme Court with the Senate, in the formation of the court of impeachments…” Hamilton made clear that was a purpose in “making the chief justice of the Supreme Court the president of the court of impeachments.”

A former President, however, who is no longer the Chief Magistrate of the United States does not have the opportunity to “pervert his admiration into a scheme of peculation or oppression.” There is no fatal danger to the Republic, so, if a President has left office, there would seem to be no purpose to the proceeding whatsoever.

For Chief Justice Roberts, the more significant problem is that he has sworn in his Oath of Office to uphold the Constitution and the laws of the United States. Therefore, he cannot act as a judge in a proceeding without any legal basis.

There is no purpose to the impeachment proceeding of Donald Trump under the Constitution. Rather, it is partisan gamesmanship to give Democrat politicians and their liberal media allies an opportunity to beat up on a former official who poses none of the threats which form the basis for the Constitutional provision authorizing impeachment of Executive officials.

Therefore, it’s not surprising that Chief Justice Roberts chose not to participate. It’s also not surprising that the hyper-partisan liberal media chose not to report Roberts’ decision, because upholding the rule of law in this instance undercuts the legitimacy of the circus-like proceedings occurring in the United States Senate.





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