Roberts Can Call Witnesses without Senate Approval

Roberts Can Call Witnesses without Senate Approval January 28, 2020

Neil Katyal, former Solicitor General, and two others have an op-ed in the New York Times citing the rules of impeachment in place since the Andrew Johnson impeachment in 1868 to establish that Chief Justice John Roberts has full authority to call witnesses and issue subpoenas for documents without needing the approval of Senate Republicans.

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.

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.

There is a lot more detail in the column and it all should be read if you want to understand the issue. The case is quite solid. The question, of course, is whether Roberts actually will do this. I think the answer is very likely no, unfortunately. But there’s a chance he might, especially in light of the new revelations from John Bolton. A fair trial demands it. Is Roberts committed to a fair trial or to the Republican party that appointed him? It wouldn’t be the first time he’s angered the GOP faithful. After his vote to save Obamacare, there was actually speculation that he had been bribed or blackmailed.

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