Roberts is a Republican who does everything he can to bend the law to the Republican agenda.

but a Republican, let the whole world know that he is a fake judge, or...if he complies and calls for witnesses, then he should be admired for his commitment to justice.

I don't understand why the dismissive reaction, if there is another option then use it, it may work.

trump called Roberts , trying to rig this trial, and if he had others illegally try to listen in on him for something to use to compromise him with it, or dig into all his dealings to use against him , and threaten him with.

The entire argument rests on one misstatement:

and place that power within the authority of the judge, in this case the chief justice.

The Chief Justice is not "the judge" in an impeachment trial. The Senate itself is.

Nor can there be an argument on this point... because the previous CJ to hold that chair essentially said the same thing when the issue came up in the Clinton impeachment trial.

And, of course, we can go farther back than that

Federalist Paper No. 65

Judges aren’t allowed to leave their seats during a tribunal.

That Federalist Paper concept wasn’t codified.

There are never 100 or so judges in a trial, nor a trial where 100 judges must also vote as jurors.

Now’s the time to be very literal on the constitution, does it allow the Chief Justice to call witnesses and documents himself? (I don’t know, I’m no Constitutional scholar)

Why? Because they have the trial briefs and the transcripts of the oral argument.

The same is true for an impeachment trial.

The role of the CJ in a Presidental impeachment trial is the same as the role of the VP or President Pro Tempore in any other impeachment trial. And no one has ever suggested the Vice President or President Pro Tempore has the authority to call witnesses or demand documents.

During legislative matters, the "Presiding Officer" of the Senate maintains the order of the day's proceedings and rules on procedural motions. That is essentially the role of the CJ when sitting as the Presiding Officer in an impeachment trial.

From the article:

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.

"authorized by these rules, or by the Senate". Nothing in the rules authorizes the presiding officer to compel witnesses by unilaterally issuing a subpoena. Any action the presiding officer takes has to be "authorized by the Senate"

Indeed, Rule VI expressly states that "the Senate shall have power to compel the attendance of witnesses". It doesn't say the presiding officer can. The highlighted language in your post simply references under whose signature an order, mandate, writ and precept (if authorized by the Senate's rules or otherwise by the Senate) will be issued. It would be bizarre in the extreme to interpret that language as giving the "Secretary of the Senate" -- a purely administrative post -- the authority to make the decision whether a subpoena is to be issued.

And rule XXV (not XXIV) provides the form for a subpoena but doesn't address what steps have to be taken to authorize the issuance of the subpoena. It's a form, not a substantive rule.

Think of it this way: if the House impeached one of Trump's cabinet appointees, would you really want to put the authority to decide whether a subpoena should be issued in the hands of VP Pence or Lindsay Graham or Mitch McConnell or any other of the Republican Senators who would be authorized to "preside" over the impeachment trial?

It happens all the time.

There are never 100 or so judges in a trial, nor a trial where 100 judges must also vote as jurors.

There are every time there's an impeachment (i.e., about a score of times)

Now’s the time to be very literal on the constitution, does it allow the Chief Justice to call witnesses and documents himself?

The constitution nowhere adds any powers to the CJ during an impeachment. The totality of evidence from the document is that the Senate has the sole power to try impeachments... the CJ will "preside"... and the Senate makes its own rules.

I think he is the judge here - in that he still has his power of Chief Justice of the US Supreme Court - your saying that's moot, he's just an observer with no power?

The Senate has a "presiding officer". Not just during impeachments... but all the time. The Constitution says that the VP holds that position except during impeachments of the president. This makes sense when you realize that when the Constitution was written, the VP was the person who received the second most electoral college votes. In other words, it was the president's chief political rival.

It didn't make sense for the president's rival to preside over a senate trial (clear conflict of interest), so they named someone else (in this case the CJ). But they didn't imbue the "preside" roll with any powers that didn't already exist.

I do think however that there has to be a distinction between the largely ceremonial role of the VP now - only there as a tie breaker/chosen by the prez - and the role of the chief justice of the supreme court in the most important trial context that we can have as a country.

Seems akin to a spelling error.

They say "judge" at the beginning but later point out that Rule V talks about the presiding officer.

Perhaps they were trying to dumb it down for people but it does seem like a mistake an editor would catch.. or two law professors.

They actually want you to believe that they're essentially the same thing, but the presiding officer of the Senate is a role that has existed for centuries... and it has never been synonymous with "judge"... or really any institutional power at all.

I suppose his analysis is shockingly bad as well?

Link to tweet

?s=20

It's ridiculous spin to claim that a process which the constitution vests entirely with the Senate can nevertheless be controlled by two people (a house manager and a SC justice) who aren't part of the Senate... and the Senate can't overrule the order.

They've already passed rules that say that even a request for additional witnesses or evidence is out of order unless/until the Senate votes to open the conversation. Roberts is bound by those rules.

Here’s a scenario:
1. House Managers invoke Rules VII & XXIV to ask the CJ to subpoena Bolton & all relevant documents
2. CJ Roberts issues subpoena
3. Trump lawyers realize Senate can’t overrule this order
4. Trump sues Roberts in DC district court
5. https://www.nytimes.com/2020/01/27/opinion/john-roberts-impeachment-witnesses.html …


The real scenario:
1 - House managers try to "invoke" rules 7/24
2 - CJ rules them out of order
3 - House managers realize that they have no power over the process in the Senate and no ability to sue anyone.

not that the Senate is prohibited from overruling.

and I'm sure they've been used to influence decisions or interpretations by the Court ( which succeeding courts may change) but if challenged would not the case have to be discussed by the Court to determine again and make a legal ruling on it if the prosecuting party requested the CJ to act?

Anybody know for sure?

Thanks.

authority and that questions relating to impeachment proceedings are not subject to judicial review.

Seems to be an important part of determining truth.

Just sayin’ the other day it might be a good idea to ask.

https://www.democraticunderground.com/100212898902

Last edited Mon Jan 27, 2020, 12:55 PM - Edit history (2)

He basically gives no credence to the weight of historical and judicial precedent. Or to the words of the Senate's rules, which in referring to the power to compel the attendance of witnesses clearly states that "the Senate" may compel the attendance of witnesses. While it indicates that the presiding officer can make evidentiary rulings, that is not the same thing as having the power to call a witness.

arguing cases before the Supreme Court.

The job of the Solicitor General is to advocate for a particular position (the DOJ/President's). They do so even when they know that they're going to lose 9-0 because the Constitution isn't on his side.

IOW - This very likely isn't his considered opinion of what the Constitution actually says... it's his best argument for the position - even though he likely knows there's no substance behind it.

Yes, Katyal was Solicitor General and argued cases before the Supreme Court. Here are a couple of other guys who served as Solicitor General: Robert Bork and Ken Starr. I don't accept anything and everything either of them wrote as gospel simply because they once were Solicitor General. Heck, I don't take every word written by Antonin Scalia as gospel, and he was a Supreme Court Justice (which makes him as much an "expert" as being SG).

Katyal didn't win every case he argued as SG. And he hasn't won every case he has argued since leaving the SG Office.

Finally, Katyal was only "acting" SG and only for 11 months (a far shorter period than either Bork or Starr). Before that he was Principal Deputy Solicitor General for around a year. You know who else was Principal Deputy Solicitor General? Current Supreme Court Chief Justice John Roberts (and for a much longer period than one year).

Having a title doesn't make you immune from having your arguments reviewed, criticized, challenged and/or rebutted.

Tribe is one of the top constitutional scholars in the country over the past half century or so.

Again...not infallible.
See post #28.

Tribe cites Rules VII and XXIV.

He ignores Rules V and VI:

V. 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.

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

By its own terms Rule V merely gives the presiding officer the power to issue orders, mandates, writs, etc. "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. And Rule VI expressly gives the power to compel the attendance of witnesses to the Senate.

Finally, like Katyal, Tribe seemlngly ignores the fact that the Supreme Court already has held that because the Constitution confers "sole" authority on the Senate to try impeachments, questions regarding the conduct of such proceedings are non-justiciable -- that is, they are not subject to judicial review.

John Roberts will celebrate his 65th birthday presiding over Trump’s impeachment trial

Quartz, Jan. 27, w2020
By Ephrat Livni & Isabella Steger

Excerpt...

In the New York Times, two Georgetown University legal scholars, Neal Katyal and Joshua Geltzer, and former Republican congressman from Oklahoma, Mickey Edwards, argue that Roberts should step into the fray and issue subpoenas to witnesses and call for more evidence. “Democratic House managers should ask the chief justice to issue subpoenas for John Bolton and others,” they write.

Bolton, former national security adviser to Trump, said he will testify if subpoenaed. His contributions would shed light on the president’s Ukraine dealings. Bolton’s upcoming book reportedly reveals that Trump confirmed to his adviser that he was withholding congressionally-approved military aid to Ukraine to pressure the foreign government to initiate an investigation into his political rival, former vice president and current presidential contender Joe Biden.

Trump has denied Bolton’s claims and previously blocked his testimony. Now, Bolton wants to cooperate and House impeachment trial managers would love to hear from him: Bolton’s testimony could provide first-hand accounts of Trump’s alleged abuse of power, namely the claims he used public office for personal, political gain.

Roberts has so far played only a magisterial role in the proceedings. Based on the Senate’s procedure rules laid out in 1868—on the occasion of Andrew Johnson’s impeachment—House trial managers could invoke Rule XXIV, calling for witnesses and evidence, and the chief could enforce it under the power granted to a presiding officer under Rule V. “The presiding officer, under our Constitution, is the chief justice. As such, the Chief Justice has the ‘power to make and issue, by himself’ subpoenas,” Katyal, Geltzer, and Edwards write.

They accuse Trump’s lawyers of distorting the rules to give the false impression Roberts is impotent in his position as presiding officer in the impeachment trial. In fact, the editorial argues, the only reason no chief has ever taken an active role in an impeachment trial is because “no president has tried to hide all of the facts from Congress before.”

Continues...

https://qz.com/1791816/scotus-chief-roberts-gets-impeachment-challenges-for-his-birthday/

But aside from that pithy observation, the Roberts Court which is to say the conservative majority has been loathe to intervene in elections except to let the money flow, so the CJ himself will likely be happy to allow elections to play out and rule on Trump rather than the judiciary getting involved.

he's a Republican, which means he has sworn his oath to protect Trump above all else.

He's way too concerned with his reputation as "unbiased" to actually BE unbiased.

in an impeachment trial (as expressed in several posts above), but face it, the American public is never going to go that deep in the weeds on the matter.

That said, strictly from a political vantage point, the Democrats should go right ahead and seek subpoenas from Roberts for witnesses and documents. Let him explain on camera why he cannot "legally" do so and why he's going to kick it back to the senators, or perhaps even punt to a lower court.

If it sounds anything like what has been presented here, the public is going to collectively roll their eyeballs and jettison every word said after about the second sentence into a mindhole labeled "Republican Coverup."

Sounds like a win to me!

Here's to Democrats taking back the Senate in 2020!

The goal of this article isn't really to win the legal battle... because we already know we're going to lose in the senate.

The goal is to make the price they pay as high as possible. Including the reputation of the CJ in the public eye.

Good. I have no problem with that.

If it was made prior to the point in time provided for such requests in the rules adopted pertaining to this particular impeachment he would simply say it is untimely under the rules.

In the alternative, while less likely, he wouldn't rule one way or another or give any explanation -- he would, as provided in the standing rules governing impeachment, simply refer the motion to the entire Senate, just as Rehnquist referred motions for witnesses in the Clinton impeachment to the entire Senate without offering a view one way or another.

Point is to put it to floor while also appearing (to average Joe) that even Roberts is nothing more than a Rethug whipping boy.

Which is why they will never do what it is that Kaytal et al are suggesting.

is that they're rigged by one side to avoid getting to the truth. Therefore, any pushback on said "rules" is simply perceived as attempting to deliver on what 70% of the country has asked for: witnesses and documents.

But, I do agree with you in that there is definitely one group that would come away from such a move saying to themselves, "Dang, those guys are so stupid. They don't understand the rules, ha, ha, ha!"---TRUMPSTERS. Yes, I can see that.

But definitely not "MAGA-foggery!" That's A-OK, peachy-keen as far as Roberts is concerned.