The effort by Democrats to impeach and convict President Trump is raising questions that, in a well-functioning society, would be reserved for law school exams. In such a society, Trump wouldn’t have acted as he did during his final days and Democrats would be content with the fact that those were his final days.
One question raised is whether a president can be impeached after he leaves office. A second is who presides over such an impeachment trial.
The Chief Justice of the Supreme Court presides when a sitting president is tried by the Senate. But in the case of an ex-president, the answer is less clear.
The Constitution says: “When the President of the United States is tried, the Chief Justice shall preside.” But Donald Trump is not the president. Thus, if he can be tried as an ex-president, the Constitution doesn’t require that the Chief Justice preside. The presumption, I suppose, is that he will not preside — that, instead, the vice president will, as she normally does over Senate proceedings.
I imagine the main reason for having the Chief Justice preside in the case of a sitting president is to avoid a conflict of interest. The vice president might well have an interest in the outcome of such a trial because she would ascend to the presidency in the event of removal.
Kamala Harris is not conflicted in this case in that way. She will not become president if Trump is convicted.
Nonetheless, Harris has a conflict of interest, and not just because she’s a partisan Democrat asked to preside over a partisan proceeding. If Trump is convicted, he can then be barred, by a simple majority vote, from holding office again. If not convicted, Trump might well be on the ballot as a presidential candidate in 2024, either as the Republican nominee or the nominee of his own party.
Harris will likely be on the ballot in 2024, maybe as the Democratic candidate for vice president or maybe as its presidential nominee. Thus, she has a personal stake in the outcome of the impeachment trial (though whether it cuts in favor of conviction or against it can be debated).
Personally, I hope Harris presides. An impeachment trial of an ex-president doesn’t deserve the dignity of the Chief Justice’s presence. With Harris presiding, the proceeding will look all the more absurd and all the more partisan. So, quite possibly, will Harris.
In addition, Harris may make rulings that further alienate her from Republican members. Thus, it might diminish the chances for collegiality in the Senate, which I hope are already slight.