Law professor Gregory Mark said in an op-ed for The Hill that the absence of Supreme Court Chief Justice John Roberts from the Senate impeachment trial of former President Donald Trump should tell people everything they need to know about its constitutionality.
Mark was a prosecutor during the Iran-Contra affair and former law dean at DePaul University where he still teaches. He is also a Public Voices Fellow through The Op-Ed Project. His area of specialty is constitutional history.
When Mark was in law school at the University of Chicago, he remembers telling a classmate that a hypothetical final exam question involving an impeachment trial of a president where the chief justice did not preside was “so absurd and implausible that it would never happen.”
Now, Mark said, it is happening, but in his view, it is still absurd. Mark said of the situation that “by stepping aside, Roberts not only is failing to meet his duty, but his actions bring an air of illegitimacy to the trial.”
Non-partisan trial under Leahy impossible
It simply isn’t possible to have a non-partisan trial when a senator rather than a justice presides over it, Mark contends. In this case, the senator is Patrick Leahy (D-VT), who voted to impeach Trump the first time and will get to vote this time, too, even though he is presiding.
No matter what happens in the trial under Leahy’s leadership, Mark points out, Trump is going to be able to say it’s unconstitutional and partisan because Roberts didn’t preside. Rather than barring Trump from holding further office if he is convicted, Congress will open itself up to ongoing legal action by having Leahy preside.
If Trump wanted to, he could drag out the question of whether he could run for future office for years, and there’s every chance the court could decide for him in the end.
Does the country really need to be put through that? I don’t think so.
“Most momentous act”
“The trial of a president is the most momentous act the Senate can be called on to perform,” Mark wrote. “If convicted, Trump would be the only native-born American over age 35 to be prohibited from holding the presidency (aside from former two-term presidents disqualified by the 22nd Amendment).”
“The Founders wanted the entire government involved in a decision of that order,” he continued. “The gravity of the trial demands the chief’s presence. The dignity of the process requires it.”
It comes down to this: Mark characterizes Roberts’ action as cowardly–he just didn’t want to deal with another trial and the political fallout from it.
“Chief Justice Roberts is doing what he said he would never do: making his own rules,” Mark said disappointedly. And the country will not be better off for it.