WASHINGTON — Sen. Patrick J. Leahy, in his role as the president pro tempore, will preside over the Senate’s second impeachment trial of former President Donald Trump, according to a source who was not authorized to speak publicly.
There had been some legal uncertainty about who would preside over Trump’s second trial since a former president has never been impeached before, so this decision will set a precedent. The president pro tempore presides over impeachment trials when the individual impeached is not the current president, the source said.
Supreme Court Chief Justice John G. Roberts Jr. presided over Trump’s first impeachment trial last year. That was in keeping with the Constitution, which states, “When the President of the United States is tried the Chief Justice shall preside.”
But the Constitution does not specify who would preside over the trial of a former president, nor does it even envision such a circumstance. Some Republicans have argued that holding an impeachment trial with Trump out of office would be unconstitutional, but Democrats and others, including many legal experts, say it is allowed and there is a precedent for trying officials after they have left office.
The question about the constitutionally of the trial is likely to be debated when the House impeachment managers and Trump’s defense team file legal arguments in the coming weeks and in their oral arguments when the trial begins the week of Feb. 8.
Leahy presiding over the trial puts him in a position where the Vermont Democrat will likely try to appear neutral throughout the proceedings but will be attacked for any decisions he makes that could be perceived as partisan. Ultimately, as one of the 100 senators charged with determining Trump’s fate, Leahy will get to cast a vote on whether to convict or acquit Trump at the end of the trial.
Although the presentation of arguments in the trial won’t begin before Feb. 9, the proceedings will officially kick off Monday as the House managers walk the article of impeachment over to the Senate just before 7 p.m. At that time, the managers will then exhibit the article, reading it before the Senate.
On Tuesday, senators will be sworn in and Trump will be sent a summons to register his plea, which is due Feb. 2.
