Harvard Law Professor Laurence Tribe suggested  recently that the Chief Justice of the Supreme Court gets to decide whether he has jurisdiction to forcibly recuse (or disqualify) a senator from participating in an impeachment trial. According to Tribe, Chief Justice John Roberts must consider whether to disqualify senators whom he thinks cannot be impartial during an impeachment trial.

Yet the Chief Justice does not have the power to bar senators from exercising their senatorial duties under the Constitution. Only the full Senate can take such action. Moreover, senators have been reluctant to do so on the rare occasions when they have considered the issue. According to Floyd M. Riddick’s report, “Procedure and Guidelines for Impeachment Trials in the United States Senate ,” senators denied on two prior occasions attempts to “disqualify certain senators” from voting during an impeachment trial. And contrary to Tribe’s suggestion, the Senate’s presiding officer played only a minor role in both instances.

Role of the chief justice

Article I, section 3, clause 6 of the Constitution stipulates,

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Rule VII of the Senate’s Impeachment Rules requires the presiding officer, or Chief Justice, to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment.” In that capacity, senators expect the presiding officer to rule on questions of evidence (i.e., issues of relevancy, materiality, redundancy) and any “incidental questions” that may arise during the trial. The presiding officer may rule when presented with such questions or submit them directly to the Senate to be decided. If the presiding officer does rule on an issue raised during the trial, any senator may appeal it and ask for a “formal vote.”

Pickering impeachment trial (1804)

The first attempt to disqualify a senator from participating in an impeachment trial for an alleged inability to be impartial occurred during the 1804 trial of John Pickering. Pickering, a United States District Judge for the District of New Hampshire, was the second person impeached by the House of Representatives under the Constitution and the first to be convicted by the Senate. At issue was whether three senators (Samuel Smith of Maryland, Israel Smith of Vermont, and John Smith of New York) who previously served in the House and participated in its impeachment proceedings related to Pickering should be “disqualified” from participating, and voting, in his Senate trial. (Samuel Smith and John Smith both voted to impeach Pickering. Israel Smith did not vote.)

On January 4, 1804, John Quincy Adams of Massachusetts moved that the three Smiths be disqualified from participating in the Pickering trial because they could not be impartial. Adams proposed,

“Resolved, That any senator of the United States, having previously acted and voted as a member of the House of Representatives, on a question of impeachment, is thereby disqualified to sit and act, in the same case, as a member of the Senate, sitting as a court of impeachment.”

The Senate eventually defeated Adams’s proposal. (The motion failed on an 8-to-20 vote on March 2, 1804).

Johnson impeachment trial (1868)

On March 5, 1868, Thomas Hendricks of Indiana objected to Chief Justice Salmon P. Chase administering the oath to Benjamin Wade of Ohio at the beginning of President Andrew Johnson’s impeachment trial. According to the Senate’s Journal,

“When the name of Mr. Wade was called Mr. Hendricks rose and submitted to the Senate the question whether Mr. Wade, being the President of the Senate pro tempore, and by law made the successor to the office of President of the United States, in case the articles of impeachment exhibited by the House of Representatives against Andrew Johnson should be sustained, was competent to sit as a member of the court upon the trial of the impeachment of the President of the United States.”

Riddick notes that in the ensuing debate, Oliver Morton of Indiana observed: “that under the Constitution the Senate has the sole power to try all impeachments and that Senator Wade, as a member of the Senate, had a constitutional right to sit there.” After a “lengthy discussion,” Senator Hendricks withdrew his motion on March 6, 1868.

Trump impeachment trial (2020)

Professor Tribe contends that Chief Justice Roberts must decide if he has jurisdiction to rule on a motion to forcibly recuse (or disqualify) a senator form participating in an impeachment trial because he or she cannot be impartial. But, ultimately, the Chief Justice does not make that decision. The Senate’s precedents from the 1804 Pickering trial and the 1868 Johnson trial affirm instead that it is up to senators to decide whether they should bar one of their colleagues from participating in an impeachment trial. The precedents also demonstrate that senators have been unwilling to recuse one of their colleagues forcibly.