Impeachment – Senator Leahy Presiding May Undercut Legitimacy; Democrat Presiding Suspect, Raises Clear Issues of Conflict of Interest
Senator Leahy Presiding Trump's Impeachment Trial May Undercut Legitimacy
WASHINGTON, D.C. (January 25, 2021) - The decision to have Senator Pat Leahy, the most senior Democrat in the Senate, preside at the impeachment trial of former president Donald Trump may undercut the legitimacy of the proceeding, as well as raise serious conflict of interest issues, says public interest law professor John Banzhaf.
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Many republicans, as well as some legal scholars, have argued that only a president who is still in office can be convicted and barred from holding office in the future, since the Constitution provides that "The President . . . shall be removed from office on impeachment for conviction of . . . other high crimes and misdemeanors," and does not refer to impeachment and "disqualification to hold and enjoy any office of honor, trust or profit under the United States" for persons no longer in office.
This argument could be strengthened by not having the Chief Justice preside in the Senate trial, since the Constitution clearly states that "When the President of the United States is tried, the Chief Justice shall preside."
Since it is the former president who "shall be removed from office" for acts and articles of impeachment adopted while he was still president, a strong argument can be made that it is the Chief Justice who should preside, and that not choosing him further undercuts the legitimacy of the impeachment trial.
It appears the the Founders provided for the Senate trial to be presided over by the Chief Justice in order to insure fairness, and the equally important appearance of fairness, by employing the person in government most likely to be - and to be seen - as impartial.
Substituting someone other than the Chief Justice to preside at the Senate impeachment trial seems to go directly contrary to this clear purpose.
Senator Leahy is the member of the political party which would clearly benefit if Trump were unable to run for president in 2024 as he has suggested he will.
Also, Senator Leahy voted to convict Trump of both of the charges in the earlier impeachment; something which might ordinarily suggest bias, and disqualify a juror in an ordinary trial.
Since he presumably would be entitled to vote, he would be serving as both judge and jury - or at least juror - something anathema to most legal traditions.
Demonstrating Clear Conflicts Of Interest
Thus Republicans, in addition to whatever objections and complaints there were prepared to offer before, now can demonstrate clear conflicts of interest by a presiding officer - whose decisions regarding procedure, validity of evidence and perhaps even of legal arguments, and in other rulings could appear to benefit the leaders and virtually all members of his own party, argues Banzhaf.
Prof Banzhaf helped to obtain a special prosecutor for Richard Nixon by claiming that having the Justice Department, under a president who clearly wanted to be rid of his vice president but could not simply discharge him, cleared a clear conflict of interest for which an impartial prosecutor was the obvious answer.