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Their case was as simple as it was extraordinary, and in a strange constitutional twist, they wondered how to present it when prosecutors and the jury were witnesses and victims of the offense.
Equally complicated was how an essay could work.
When the Senate last met as an impeachment court in February 2020, it was chaired by Chief Justice John G. Roberts Jr. of the Supreme Court. But the Constitution only states that the chief justice must oversee the proceedings when a current president is tried, questioning who would run the chamber this time around.
The task could eventually be left to the Speaker of the Senate, who after Wednesday will be Vice President-elect Kamala Harris. Or, if Ms Harris does not want to be embroiled in the proceedings during her early days in office, she could eventually cede responsibility to the Senate Speaker pro tempore, Senator Patrick J. Leahy, Democrat of Vermont.
But other constitutional scholars have argued that because the charge was laid while Mr. Trump was still president, Chief Justice Roberts should once again preside.
The issue was shrouded in broader uncertainty about the Senate’s jurisdiction over Mr. Trump once he left office. While former government officials have been tried for uneasy crimes, no former president has. Some Tories have pointed to the lack of precedent and the Constitution’s silence on the issue to argue that the Senate has no right to try Mr. Trump after Wednesday.
This seems to be the minority view. The Senate tried President Ulysses S. Grant’s Secretary of War in the 1870s after he resigned. Many legal scholars believe that this is sufficient precedent to do so with Mr. Trump, and in any case, they argue that it is highly unlikely that the Supreme Court will challenge the Senate decision if a majority of the body were in. favor the hearing of the case.
The chief justice declined to comment on Friday through a spokesperson for the Supreme Court.
Senators and their staff were also trying to determine how they could alter the physical layout of the Senate Chamber and attendance requirements in order to conduct the trial safely during the pandemic. In the past, impeachment rules required that all 100 senators sit at their desks inside the chamber whenever the trial is in session, and members of the prosecution and defense teams crowd together. around curved tables installed in the Senate well. But to do so now with an airborne virus ravaging the country – and the halls of Congress – would be dangerous.
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