Obviously, I take no position on whether President Trump should or should not be impeached. Even if I had a position, I would not reveal it. But I am intrigued by the fact that the Chief Justice of the United States becomes the Presiding officer in such a trial pursuant to Article I, Section 3, Clause 6 of the Constitution. That is:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
But, what does “preside” mean?
Back in the day, when Chief Justice Salmon Chase presided over the impeachment of President Andrew Johnson, the Chief Justice made at least two procedural rulings that the Senate as a whole overruled.[i] Michael J. Gerhardt, Trial of Impeachment, The Heritage Guide to the Constitution (last accessed September 26, 2019).(Because of an odd linking problem that I cannot solve, it is best to copy “Trial of Impeachment and Heritage” and paste it into your browser.)
The Senate now has rules about such things. Rule VII of Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials states:
The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the Presiding Officer on the trial shall direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate. Upon all such questions the vote shall be taken in accordance with the Standing Rules of the Senate.
So, let’s imagine. A lawyer asks a question of a witness during the impeachment trial. The other lawyer objects. The Chief Justice inquires, “What is your objection, Sir?” The first lawyer responds, “The questions makes no damn sense Mr. Chief Justice!” The Chief Justice overrules the objection. A Senator asks that a formal vote be taken. The question of whether the question makes no damn sense is then put before the body for a vote.
Richard G. Kopf
United States District Judge (Nebraska)
[i] As you may remember, the President escaped impeachment by one vote.