Their case was as simple as it was extraordinary, and in a bizarre constitutional upheaval, they were struggling to figure out how to present it when prosecutors and the jury were witnesses and victims of the crime.
How a test could work was proving to be so complicated.
When the Senate last met as an impeachment court in February 2020, it was chaired by Supreme Court President John G. Roberts Jr .. But the constitution stipulates only that the president of the court must oversee the process when a current President is on trial, casting doubt on who would lead the Chamber this time.
The task could be left to the President of the Senate, who will be elected Vice President Kamala Harris after Wednesday. Or, if Ms. Harris doesn’t want to be involved in the process during her first days in office, she could hand over the responsibility to the Senate’s pro tempore president, Sen. Patrick J. Leahy, a Vermont Democrat.
But other constitutional scholars have argued that, since the indictment was filed while Trump was still president, the president of court Roberts should preside again.
The issue was involved in a broader uncertainty over the Senate’s jurisdiction over Trump after he stepped down. Although former government officials have been tried for impeachable crimes, no former president has done so. Some conservatives were pointing to the lack of precedent and the silence of the Constitution on the issue, to argue that the Senate had no right to try Trump after Wednesday.
This seems to be the minority view. The Senate tried President Ulysses S. Grant’s war secretary in the 1870s, after he had already resigned. Many jurists believe it is sufficient precedent to do so with Trump, and in any case, they argue that it is highly unlikely that the Supreme Court would challenge the Senate decision if the majority of the body were in favor of hearing the case.
The court’s president declined to comment on Friday through a Supreme Court spokeswoman.
Senators and their advisers were also trying to determine how they could change the physical layout of the Senate chamber and attendance requirements to operate the trial safely during the pandemic. In the past, impeachment rules required all 100 senators to sit at their desks inside the chamber whenever the trial was in progress, and members of the prosecution and defense teams huddled around curved tables set up in the Senate pit. But doing so now with an airborne virus ravaging the country – and the corridors of Congress – would not be safe.