'How does a Senator preside, like a judge, and serve as juror too?' tweeted Texas Sen. John Cornyn.
GOP senators are stopping at nothing to derail the Senate impeachment trial of Donald Trump for his role in inciting the violent attack on the U.S. Capitol on Jan. 6 by his supporters, making easily debunked arguments against the constitutionality of the upcoming proceedings.
Trump's trial on the incitement charge on which he was impeached on Jan 13. by the House of Representatives for a historic second time is set to begin Feb. 9. It's a hot-button topic among Republican politicians this week, with some complaining that the trial proceedings will be unconstitutional because Sen. Patrick Leahy (D-VT), and not Chief Justice John Roberts, will preside over them.
The Constitution dictates that the chief justice of the United States preside over the impeachment trial of a sitting president.
Leahy is the president pro tempore of the Senate and possesses the authority to preside over Senate business in the absence of the body's president, Vice President Kamala Harris.
In a public statement, Leahy attested to his commitment to impartiality, saying, “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."
"Unprecedented; never happened in all of American history. So there isn't a Senate rule or constitutional provision authorizing this. How does a Senator preside, like a judge, and serve as juror too? #conflictofinterest," tweeted Sen. John Cornyn (R-TX) on Monday.
But Cornyn, as both a former lawyer and a former judge, would be aware that there is such a thing in many cases as a bench trial, in which the judge essentially acts as the jury as well.
Sen. Roger Marshall (R-KS) also voiced his objections to the chief justice's absence from the trial.
"If the chief justice is not showing up, it's a hearing, not an impeachment," Marshall tweeted. "We must vote on a motion to dismiss."
Sen. Rand Paul (R-KY) tweeted Monday, "If Chief Justice Roberts can't be bothered to come over for the so-called impeachment, makes you wonder if this exercise is constitutional at all."
In an op-ed in the Hill on Sunday, Paul also dismissed the idea of Leahy presiding over a Senate trial.
"The Constitution says two things about impeachment — it is a tool to remove the officeholder, and it must be presided over by the chief justice of the Supreme Court," he inaccurately claimed. "If Justice Roberts is not presiding over this, then it is not impeachment. This charade will be nothing more than bitter partisanship and political theater."
Article 1, Section 3 of the U.S. Constitution gives protocols for impeachment and notes only that "when the President of the United States is tried [in the Senate], the Chief Justice shall preside." It makes no specific provision for who should preside when a former president or other official is the subject of the impeachment.
And previous impeachment cases provide precedent for U.S. senators or the vice president presiding over the proceedings.
In 1986, Vice President George H.W. Bush presided over the impeachment trial of Judge Harry Claiborne.
In 1989, West Virginia Democratic Sen. Robert Byrd, acting as president pro tempore, presided over the Senate impeachment trials of Judge Walter Nixon and Judge Alcee Hastings.
And in 2010, Louisiana Judge Thomas Porteous was impeached and removed from office in a trial presided over by Democratic president pro tempore Sen. Daniel Inouye of Hawaii.
But the facts aren't stopping Republicans from objecting to ordinary procedures.
Sen. Lindsey Graham of South Carolina tweeted on Jan. 22, "The President was impeached in the House from start to finish in less than 60 hours without one witness being called and without a lawyer. This will not happen in the Senate. I believe post-presidential impeachments are blatantly unconstitutional."
But there is also historical precedent for impeaching an official after he leaves office.
In 1876, Secretary of War William Belknap resigned just before the House of Representatives was to vote on impeachment charges of corruption against him.
But the House went on impeach Belknap even after his resignation from office, and a Senate trial still took place. Lawmakers argued that his leaving office didn't negate the need for trial, to prevent officeholders from resigning when faced with such sanctions.
The Senate voted 37-29 to try Belknap, who was then acquitted.
Published with permission of The American Independent Foundation.