(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’s trial. This time last year, the Chief Justice of the Supreme Court, John Roberts, fulfilled his constitutional duty by presiding over Donald Trump’s first impeachment trial. The otherwise reserved Roberts made his uneventful political debut in the Senate, assuming a role he likely despised given the extent to which he has avoided entangling himself in the partisanship which has dominated his time on the Court. This time, however, Mr. Roberts may be off the hook.

While some have already assumed that John Roberts will preside over Trump’s second trial, this conclusion is doubtful, and Mitch McConnell’s most recent memo 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 20^th. 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 president. This makes sense given that the likely reasons for removing the Vice President’s participation from the President’s 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’s trial, like she could over any other Senate trial, for a separate reason: she can do something that the Chief Justice won’t do—break ties.

Article I, Section III of the United States Constitution reads, “When the President of the United States is tried, the Chief Justice shall preside…” Certainly, if the Senate began its trial today and concluded before noon on January 20^th, John Roberts would find himself entering the Senate chamber once again. As Senate Majority Leader McConnell has made clear, however, Donald Trump’s trial will not occur until after President Trump has left office. Therefore, Donald Trump will not be “the” President of the United States by the time he stands trial. In fact, it is well-established that the United States has one president at a time, and on January 20^th, his name with be Joe Biden.

Yet, there is a wrinkle in this analysis: the Senate’s impeachment rules differ slightly from the Constitution’s language. While the Constitution instructs the Chief Justice to preside over the “trial” of the President, the Senate rules designate the Chief Justice as presider whenever the President is “impeached”—an earlier trigger point in the process.

The slight difference in the Senate rules’ wording was most likely a drafting error given that the issue has never arisen before. But, even if the Senate rules were intended to expand the Chief Justice’s role to a trial like this one—and in turn, shrink the Vice President’s role—one should question whether the Senate, by virtue of its own rules, can strip the Vice President of her constitutional role as president and tiebreaker of the Senate beyond what the Constitution already allows. Of course, the Senate is the “master of its own destiny,” but its rules cannot run overrun the Constitution.

Stephen Vladeck, Legal Professor at the University of Texas School of Law, takes the opposite side of the argument, arguing that the Vice President should not preside over a former president’s trial. Professor Vladeck argues that allowing the vice president to preside over a former president’s trial would lead to “odd” results, like, for example, the Chief Justice being replaced by the Vice President midway through the trial in the event of a mid-trial presidential resignation. But the result that Professor Vladeck describes as “odd” is not odd at all. In fact, the result makes sense given the likely reasons for substituting the Chief Justice for the Vice President in the first place.

When the current President is on trial, the Vice President has skin in the game. A conviction of the chief executive would immediately promote the Vice President to the top of the executive branch. James Madison warned against this type of conflict of interest in Federalist No. 10, writing that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” Indeed, this presumption against self-dealing similarly disallows judges from reviewing impeachment proceedings of other judges, because such a power “would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.” The constitutional provision requiring the Chief Justice to preside over the President’s trial likely reflects a similar concern. Remember, the vice presidency was originally awarded to the runner-up in the electoral college, not a president’s handpicked number two. This meant that the President and Vice President were something of political rivals, making the “conflict of interest” justification for the Chief Justice substitution even stronger. Could one imagine the spectacle of the election’s loser becoming President after presiding over the trial of the victor?

Of course, such a conflict will not exist once President Trump leaves office. Regardless of the Senate’s verdict, Kamala Harris will remain Vice President, and Joe Biden, President. Sure, Kamala Harris and Joe Biden may stand to gain politically 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.

A skeptical reader might question the entire basis of this piece and point out that the presiding officer does not do much during a Senate trial anyway, and that it hardly matters whether Roberts, Harris, or Santa Claus himself presides. Chief Justice Rehnquist probably agreed with this sentiment, stating that during the Clinton trial he “did nothing in particular, and . . . did it very well.” 

But there are circumstances—important circumstances—when the presiding officer can break a tie in a Senate trial. Of course, the most important vote, the vote to convict, requires a two-thirds majority, making a fifty-fifty tie irrelevant anyway. Other votes, however, only require a simple majority to pass. For example, the trial’s actual rules package is voted on by the entire Senate before the trial. Likewise, a vote to disqualify the President from holding future office, unlike the initial vote to convict, only requires a simple majority. If Democrats and Republicans do not agree on the trial’s rules, witnesses, or whether Mr. Trump should be disqualified from running again in 2024, the presiding officer could break the tie.

Make no mistake, if Chief Justice John Roberts does preside, he will certainly refuse to break a tie in each of these situations. In fact, he said so himself. During Trump’s most recent trial, Senate Democrats attempted to call witnesses but most Senate Republicans opposed the measure. Like the vote to disqualify, the vote to subpoena a witness also only requires a simple majority to pass, and the Democrats were one vote away from reaching fifty votes (they ended up losing the vote fifty-one to forty-nine). Anticipating the possibility of a fifty-fifty tie, Senate Minority Leader Chuck Schumer asked Chief Justice Roberts whether he planned to break a tie. In response, Roberts said that he could not break a tie because the chief justice is an “unelected official from a different branch of government,” making any tie-breaking vote cast by him inappropriate. Note that Chief Justice Roberts’s opinion differed from that of his predecessor, Chief Justice Samuel Chase, who broke multiple ties during the Senate trial of Andrew Johnson.

Chief Justice John Roberts’s reluctance to break a tie creates a potential problem in the upcoming trial. Because there will be fifty Senate Democrats and fifty Senate Republicans—a comically coincidental occurrence—it 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 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’s 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—Kamala Harris.

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. 

Suggested Citation: Jimmy Pinchak, Kamala Harris Should Let John Roberts Off the Hook, 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/.