“The Constitution says the chief justice presides for a sitting president. So it was up to John Roberts whether he wanted to preside with a president who is no longer sitting, Trump, and he doesn’t want to do it,” Schumer said during an appearance on MSNBC.
“So traditionally what has happened is then the next in line is the Senate pro tem. That’s the most senior senator on the majority side, and that’s Sen. Leahy, who’s a very experienced man, and a very fair man.”
The Supreme Court hasn’t responded to requests for comment.
Senate President Pro Tempore Patrick Leahy (D-Vt.) announced earlier Monday that he would be presiding over Trump’s upcoming trial, even as he serves as a juror.
“When I preside over the impeachment trial of former President Donald Trump, I will not waver from my constitutional and sworn obligations to administer the trial with fairness, in accordance with the Constitution and the laws,” Leahy said in a statement.
The House, which impeached then-President Trump on Jan. 13, transmitted the charge of incitement of insurrection to the Senate on Monday. The Senate trial is supposed to start during the week of Feb. 8.
According to the Constitution, the Supreme Court’s chief justice shall preside when the president of the United States is tried in an impeachment trial. An impeachment trial of a former president has never taken place in U.S. history. The Constitution does not directly address whether Congress may impeach and try a former president for actions taken while in office, according to the nonpartisan Congressional Research Service.
While former Secretary of War William Belknap was impeached in 1876 after he resigned—he was later acquitted—in more recent history, both the House of Representatives and the Senate have opted not to proceed with impeaching an official who has resigned or left office.
“At times, it appears that this decision is based on a judgment that removal is often the primary, if not the sole goal of an impeachment trial,” the service stated in a report this month.