US Constitutional Scholars: Chief John Robert’s Can Demand Witnesses Appear At Impeachment Trial

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Guess what? The GOP legislators in the US Senate have not been exactly forthcoming as to how any House Democratic Party managers assigned to prosecute the impeachment case against the republican President Donald J. Trump can (on their own) request that the chief justice issue subpoenas under his authority regarding relevant key witnesses like John Bolton, where they are forced to at least make an appearance on the floor of the US Senate during its impeachment’s trial.

According to legal experts/ scholars of the US Constitution including Professor Tribe of Harvard Law School, any Democratic Party House Manager involved in US Senate’s impeachment against President Donald J. Trump can demand the subpoenas of relevant testimony by participants in the Trump-Ukraine scandal.

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As per the 1/27/2020 New York Times article, “The rules further empower the chief justice to enforce the subpoena rule. Rule V says: “The presiding officer shall have power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, writs, and precepts authorized by these rules, or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.”

In addition, it would take two-thirds or 67 votes of the US Senators to override Chief John Roberts if he rules in favor to allow for witnesses to submit to questioning by the US Senate during the current impeachment trial.

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As per the January 27, 2019 New York Times analysis, “John Roberts Can Call Witnesses to Trump’s Trial. Will He?”by Neal K. KatyalJoshua A. Geltzer, legal professors at Georgetown Law School and Mickey Edwards:

Excerpts:

“An overwhelming number of Americans (69-71%), including a majority of Republicans, believe the Senate should hear from relevant witnesses and obtain documents during President Trump’s impeachment trial. Striking new revelations about the president’s role in the Ukraine affair, as reported from an unpublished manuscript by John Bolton, underscore the need for his testimony and that of others.”

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“Yet Republican members of the Senate have signaled that they intend to uphold Mr. Trump’s unprecedented decision to block all of this material.”

“But turns out they don’t get to make that choice — Chief Justice John Roberts does. This isn’t a matter of Democrats needing four “moderate” Republicans to vote for subpoenas and witnesses, as the Trump lawyers have been claiming. Rather, the impeachment rules, like all trial systems, put a large thumb on the scale of issuing subpoenas and place that power within the authority of the judge, in this case the chief justice.”

Most critically, it would take a two-thirds vote — not a majority — of the Senate to overrule that. This week, Democrats can and should ask the chief justice to issue subpoenas on his authority so that key witnesses of relevance like John Bolton and Mick Mulvaney appear in the Senate, and the Senate should subpoena all relevant documents as well.

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“The Senate rules for impeachment date back to 1868 and have been in effect since that time. They specifically provide for the subpoenas of witnesses, going so far in Rule XXIV as to outline the specific language a subpoena must use — the “form of subpoena to be issued on the application of the managers of the impeachment, or of the party impeached, or of his counsel.”

As you can see, there is no “Senate vote” requirement whatsoever in the subpoena rule. A manager can seek it on his own.

“The rules further empower the chief justice to enforce the subpoena rule. Rule V says: “The presiding officer shall have power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, writs, and precepts authorized by these rules, or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.” The presiding officer, under our Constitution, is the chief justice. As such, the chief justice, as presiding officer, has the “power to make and issue, by himself,” subpoenas.”

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“President Trump’s allies have tried to distort a separate rule (also still in effect), hoping that it could be stretched to say that a majority of senators can override the chief justice’s decision. Rule VII reads, in the relevant part: “the presiding officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate.” So President Trump’s allies are hoping that last clause authorizes a majority of Senators to overrule the chief justice on matters including subpoena issuance.”

“But its plain text says otherwise. It’s carefully drawn to be about “questions of evidence”: whether, for example, a line of witness questioning is relevant or not. The issuance of a Rule XXIV subpoena, however, is not a question of evidence. In normal litigation, we’d call it a discovery question.”

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“The Democrats’ impeachment managers should immediately ask the chief justice to issue subpoenas for key witnesses and documents, insisting that the Senate rules make him and him alone the decision maker about whether to “make and enforce” those subpoenas. That’s his prerogative — and his responsibility, one he can’t simply shift to the senators as permitted for evidentiary questions under the Rule VII carve-out.”

“What happens next won’t be totally within Democrats’ or the chief justice’s control. As Representative Adam Schiff acknowledged Thursday, the chief justice can decide evidence questions like executive privilege, but his determinations can be overruled by a majority of senators.”

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“Likewise, when witnesses and documents arrive at the Senate, if questions arise about actual evidentiary rulings — like whether Mr. Bolton or Mr. Mulvaney can be forced to answer particular questions — a majority of senators can, under Rule VII, overrule the chief justice. But the first step is getting them to the Senate in the first place.”

“There’s icing on this cake. The special rules for Mr. Trump’s impeachment trial drafted by the Senate majority leader, Mitch McConnell, establish certain obstacles for witness testimony, requiring a deposition first and only then a Senate vote on whether to allow the witness to testify. But those rules apply only to a particular category of witnesses — those called “if the Senate agrees” to them. They manifestly don’t apply when it’s the chief justice who orders witnesses to appear.”

“Mr. McConnell’s rules separately say that the Senate shall debate “whether it shall be in order to consider and debate under the impeachment rules any motion to subpoena witnesses or documents.” That language cannot restrict Rule V’s pre-existing empowerment of the chief justice to issue subpoenas. To amend Rule V requires a two-thirds vote of the Senate, something Mr. McConnell didn’t get. That is presumably why the rules speak only to whether the Senate should subpoena witnesses or documents — but do not restrict the chief justice’s ability to issue subpoenas under his Rule V authority.”

“And that’s precisely what the Democrats must ask him to do — now.”

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8 comments

  1. Hello Gronda. Interesting post. I wonder how the politics of it will play out. The House managers may not want to upset the proud of their traditions Senators by passing over them going directly to the Chief Justice. The Chief Justice might be wary of crossing Moscow Mitch. However the Senators may be wary of overruling the decisions of the Chief Justice. Hugs

    Liked by 2 people

  2. The thing that frosts my butt is that we even need to rely on Roberts for this action!

    The whole scenario smacks of a well-known trial in which a defense lawyer threw out his infamous line: “If it doesn’t fit, you must acquit.”

    Of course tRUmpsky and his gang of henchman are making sure the “glove” is buried under a mountain of lies because they are well aware it fits … but keeping Control is far more important than truth.

    Liked by 3 people

  3. Welcome back my friend. Good post. I am glad a high percentage of Republicans want to see evidence. I have a feeling they think it might exonerate the president. The opposite is likely true, as why would you hide something that would be in your favor?

    It was great to meet you the other day. My wife and I enjoyed your company. Take care, Keith

    Liked by 3 people

    • Hi Keith,

      Jill gave me an update a few days ago about Gronda and informed me that you and your wife gave Gronda a visit and had a lovely lunch together there. That’s very kind and caring of you to check up on Gronda when she’s not quite up to par. Thank you.

      Happy Chinese New year to you! It is the year of the rat!

      Liked by 2 people

  4. Hi Gronda,

    At Jill’s post entitled “The Playground Bully” published on 7 Jan 2020,

    Scottie stated:

    tRump is a weak mans idea of a strong man.

    SoundEagle stated:

    Trump is a fool’s idea of a genius.

    To add to or synergize with your collection of cartoons here, please kindly visit the one by SoundEagle at https://soundeagle.wordpress.com/2017/10/18/the-quotation-fallacy/best-quotation-to-win-an-exclusive-loyal-contract-to-make-pig-boss-company-great-again/

    Liked by 2 people

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