The Roberts Option

Chief Justices Chase, Rehnquist, and Roberts.

When Neal Katyal speaks, I listen:

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 it 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.

Rachel Maddow asked Adam Schiff about this possibility last night. He was cagey, which is a good sign.

I hope they give this a shot. It will put the Chief Justice on the spot, but if Salmon P. Chase could do it, so can he. Roberts is just sitting there like a hood ornament right now, after all. It would be like throwing a live grenade in his lap ala Bolton-Rudy. The wheels keep on turning. Stay tuned.

3 thoughts on “The Roberts Option

  1. gratuitous says:

    Roberts, as you say, is playing the hood ornament on this bus. I think he’s hoping that he can deny ever being in the Senate trial if he stays quiet enough and sits still enough. So far, Roberts appears to have adopted the narrowest possible interpretation of his constitutional duty to “preside” over the Senate trial. Gavel the session in, gavel it out, and respond to any tattle-tale notes Susan Collins slips him.

    I hope the House managers give issuing a subpoena a shot, too. But don’t look for Roberts to clank into motion as the presiding officer if he can possibly avoid it. I’d bet that any question referred to him about subpoenas would have Roberts recognized McConnell, who would make a snap motion for a vote on removal, and count on holding 34 Republicans together to vote no.

  2. LarrytheRed says:

    I have a better chance of winning the lottery than rely on Roberts for anything that might irritate DJT, even a little.

  3. RapierLOL says:

    Roberts ruling for witnesses? LOL. Sure, and I’m the king of Sweden. (Well I would have been as in a previous life I was the crown prince. Killed in a plane crash because some stupid Dane left the wind locks on the tail ailerons.)

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