The Constitution provides that, "When the President of the United States is tried, the Chief Justice shall preside." If Trump's trial doesn't start until after Biden is sworn in, will/should Roberts preside?

To me, the answer is yes—because the House *impeached* "the President."
Indeed, if Trump resigned (or his term ended) mid-trial, it would be more than a little odd for the Chief Justice to give way to the Vice President. The question should be whether the impeached officer was President at the time of impeachment. Here, he was, so Roberts presides.
(And if it seems odd to you that the Constitution doesn't speak to this scenario, here's a better one: Who presides over the trial if the *Vice President* is impeached?)

If nothing else, it's an object lesson in how ambiguous so much of the Constitution is (and always has been).

• • •

Missing some Tweet in this thread? You can try to force a refresh

Keep Current with Steve Vladeck

Steve Vladeck Profile picture

Stay in touch and get notified when new unrolls are available from this author!

Read all threads

This Thread may be Removed Anytime!


Twitter may remove this content at anytime! Save it as PDF for later use!

Try unrolling a thread yourself!

how to unroll video
  1. Follow @ThreadReaderApp to mention us!

  2. From a Twitter thread mention us with a keyword "unroll"
@threadreaderapp unroll

Practice here first or read more on our help page!

More from @steve_vladeck

15 Jan
1. Thanks to MyPillow guy (sigh), here's, hopefully for the last forking time, one more #thread on the Insurrection Act — and why there's neither a legal nor practical pathway by which Trump could use it to somehow stay in power and/or prevent Biden's inauguration next Wednesday:
2. Let's start at the beginning. The "Insurrection Act" is actually shorthand for a *series* of statutes dating back to 1792 that authorize the President to use the military for domestic law enforcement.

You'll find them today at 10 U.S.C. §§ 251–55:…
3. Critically, invoking the Insurrection Act is *not* tantamount to invoking "martial law." Almost every invocation of the statute throughout its history has been to *supplement* civilian law enforcement, not to *supplant* it — most recently during the Rodney King riots in LA.
Read 9 tweets
9 Jan
1. In light of this @RonanFarrow story about Larry Rendall Brock, Jr., an Air Force veteran, here's a quick #thread about the complicated, confusing, and evolving state of the law regarding when the military can (and cannot) court-martial retired servicemembers.
2. First, an important distinction: The military can *recall* most retirees to active duty. But that's not the same thing as whether they can be tried by court-martial for offenses committed *while* retired (and before being recalled).

That's where things get complicated.
3. The Uniform Code of Military Justice (UCMJ) authorizes courts-martial for *any* offense committed by those who have retired from a "regular component" and are receiving pay, along with members of the Fleet Reserve and Fleet Marine Corps Reserve (who are effectively retirees).
Read 9 tweets
30 Dec 20
1. Everyone needs to take a deep breath.

Yes, the President and far too many Republicans are *continuing* to engage in dangerous, anti-democratic behavior—despite having utterly failed to substantiate *any* of the claimed electoral improprieties. But it's just not going to work.
2. First, even if a Senator like Hawley joins a House member's challenge to a particular state's electors, there's nowhere near a majority in *either* chamber (let alone both) to sustain the challenge. All that will happen from these challenges is the process getting slowed down.
3. Second, no, that doesn't mean that Republicans can "run out the clock." Even if McConnell somehow allowed this nonsense to drag on for *two weeks,* we'd end up with Acting President Pelosi at noon on 1/20, not President Trump. And the Twelfth Amendment isn't to the contrary.
Read 6 tweets
18 Dec 20
#BREAKING: #SCOTUS throws out challenge to Trump administration's exclusion of undocumented immigrants from next year's apportionment, with 6-3 majority holding that "this case is riddled with contingencies and speculation that impede judicial review":…
Majority: "Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time."
Writing for himself and Justices Sotomayor and Kagan, Justice Breyer dissents on justiciability, and would also affirm (holding that the Trump memo is unlawful) on the merits.
Read 4 tweets
16 Dec 20
There's a new piece in @TheHillOpinion arguing that, if Republicans *slow down* the counting of electoral votes enough, they can generate a scenario in which Trump wins:…

Here's a short #thread on why this scenario is not possible—let alone plausible:
The claim rises and falls on the 12th Amendment. It provides that, if no presidential or vice-presidential candidate receives a majority of electoral votes, they're chosen by the House (one vote per state) and Senate (one vote per Senator), respectively:…
With Republicans controlling a majority of state delegations in the new House, and perhaps a majority of the Senate as well (depending upon GA), the argument goes that, if they just stall long enough, they can choose Trump and Pence.

This argument just doesn't work. Here's why:
Read 6 tweets
15 Dec 20
I got an e-mail today from a county official in Texas who had some choice words about my analysis of the Texas #SCOTUS case and my responsibility as a law professor to fairly present "both sides."

I hope he enjoys reading my 1,336-word reply half as much as I enjoyed writing it.
Here’s the original note, with identifying information redacted:
Here’s my response:
Read 4 tweets

Did Thread Reader help you today?

Support us! We are indie developers!

This site is made by just two indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member ($3/month or $30/year) and get exclusive features!

Become Premium

Too expensive? Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal Become our Patreon

Thank you for your support!

Follow Us on Twitter!