This … would solve a number of thorny problems, if it actually worked. According to Neal Katyal, Joshua Geltzer, and Mickey Edwards, Adam Schiff could bypass a Senate vote on witness subpoenas by demanding that Supreme Court Chief Justice John Roberts issue them. As presider over the trial of Donald Trump, they argue, Roberts has the authority to issue the subpoenas apart from any vote by the Senate.
Which is true … kind of. Right up to the point where the trio argue about “rules”:
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.
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.”
All of this is accurate, as far as it goes. Let’s mull over that potential for just a moment before I throw cold water all over this idea. If Roberts has the authority to issue a subpoena, then responsibility for a vote dissipates. Cui bono? It ain’t the Democrats, at least not in terms of the damage done to the standing of certain senators. That would let the Republicans entirely off the hook, including those who have to face tough re-election campaigns in purple states like Susan Collins. Schiff gets his witnesses, and then presumably Republicans get theirs when Trump’s legal team asks Roberts to subpoena Joe and Hunter Biden, the whistleblower, and maybe even Adam Schiff.
Right? Er, not so fast. Katyal et al skip over another part of the same rules. The catch comes in Paragraph 176, from where the trio argue for Roberts’ plenary power to issue subpoenas. Emphasis mine:
176 VII. The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber, and the Presiding Officer on the trial shall direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. And 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; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate. Upon all such questions the vote shall be taken in accordance with the Standing Rules of the Senate.
Roberts is the Presiding Officer, in this case, who has plenary authority to rule on motions and subpoena requests … unless one member of the Senate objects to it. If that happens — and you can bet your bottom dollar it will on any of these potential witnesses — it has to go to a vote. The Presiding Officer in the Senate — a routine task fulfilled by most if not all members of the Senate at some point — does not get to make plenary decisions unless they are “without objection,” a phrase often heard in parliamentary proceedings.
That’s because the Senate runs the Senate, even in an impeachment, not the federal judiciary. The Chief Justice presides only to run the proceedings, acting in the same function and manner as the Senate’s presiding officer at any other time. The authority to act still rests with the Senate, not the Chief Justice, as Paragraph 175 of the impeachment rules makes clear:
175 VI. The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way contempts of, and disobedience to, its authority, orders, mandates, writs, precepts, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice. And the Sergeant at Arms, under the direction of the Senate, may employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, writs, and precepts of the Senate.
It’s “the Senate” that has the power to compel witnesses, not the Chief Justice. (Please hold your Exorcist jokes to the very end.) The only way in which the Chief Justice can issue a subpoena without triggering a vote is if all 100 senators refrain from objecting. The odds of that happening in any of these subpoena demands are higher than 100-1 against. Much higher.
Alas for fantasy impeachment trial players, the votes still matter. At the moment, it looks as though Democrats might well get the necessary votes to issue some subpoenas while being able to block others, although that calculus might still change. Regardless, there won’t be a shortcut around this process, no matter how much both sides might desire it..