9:24 p.m.
The contrasting views held by House impeachment managers and President Trump’s defense team on Chief Justice John Roberts’s role in the fight over witnesses came into sharp focus late Wednesday.
The two sides clashed over whether Roberts is authorized to rule on executive privilege, and if the Senate always has the power to overrule Roberts with a simple majority, or only under certain circumstances.
The Constitution appoints the chief justice to preside over presidential impeachment trials in the Senate. The rules that govern the arrangement between the Senate and Roberts say the presiding officer “may rule” on all questions of evidence.
However, the rules make clear that a single senator can appeal an evidentiary ruling, which would trigger a vote in the Senate, where a simple majority would overturn Roberts.
Patrick Philbin, deputy counsel to the president said that an assertion by Trump of executive privilege, the legal doctrine that shields certain presidential communications, is beyond Roberts’s power to rule.
“On the subpoenas at the front end, that’s not going to be something that’s determined, with all respect, sir, by the chief justice,” Philbin said, turning to Roberts. “That’s something that would have to be sorted out in the courts or by negotiation with the executive branch.”
Lead House manager Rep. Adam Schiff (D-Calif.) pushed back on that assertion.
“Is the chief justice empowered under the senate rules to adjudicate questions of witnesses and privilege? The answer is yes,” Schiff said. “Can the chief justice make those determinations quickly? The answer is yes.”
While the Senate rules say a majority of senators can overrule the presiding officer on evidentiary rulings, Schiff suggested that Senate power also yields to that authority in some cases. He added that certain challenges by the Senate would require a supermajority to override Roberts.
“Is the senate empowered to overturn the chief justice? Under certain circumstances,” he said. “Is the vote 50 or is the vote two-thirds? That would be something that we would have to discuss with the parliamentarian and chief justice.”
The trial debate over Roberts’s relative power in the witness fight mirrors a similar debate being waged by legal scholars in opinion pages and legal blogs.
Experts say prior Supreme Court decisions would offer scant guidance on resolving an assertion by Trump of executive privilege, and that, procedurally speaking, the Trump impeachment trial has entered uncharted waters.
I think articles like this sidestep the critical issue, which I detailed in my other post.
Do you think an impeachment trial has the power to strip the President of his own legitimate rights? Just because the venue is now the Senate trial, doesn't the President have the same right of access to the courts as he did when the venue was the House committee hearing?
Just because the Chief Justice is presiding doesn't automatically vest within him the entire authority of the Judicial branch. The President still has his constitutional right of access to the entire legal system to make his claims.
Wouldn't you agree?
-PJ