John Roberts Can Call Witnesses to Trump’s Trial. Will He?

By Neal K. Katyal, Joshua A. Geltzer and Mickey Edwards

Democratic House managers should ask the chief justice to issue subpoenas for John Bolton and others.

By Neal K. Katyal, Joshua A. Geltzer and

Mr. Katyal and Mr. Geltzer are law professors at Georgetown. Mr. Edwards is a former Republican congressman from Oklahoma.

Chief Justice John Roberts, center, walked into the Senate chambers on Jan. 16 to swear in lawmakers for the impeachment trial of President Trump.
Chief Justice John Roberts, center, walked into the Senate chambers on Jan. 16 to swear in lawmakers for the impeachment trial of President Trump.Credit...Jim Lo Scalzo/EPA, via Shutterstock

An overwhelming number of Americans, including a majority of Republicans, believe the Senate should hear from relevant witnesses and obtain documents during President Trump’s impeachment trial. Striking new revelations about the president’s role in the Ukraine affair, as reported from an unpublished manuscript by John Bolton, underscore the need for his testimony and that of others.

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.

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.

President Trump’s allies have tried to distort a separate rule (also still in effect), hoping that it could be stretched to say that a majority of senators can override the chief justice’s decision. Rule VII reads, in the relevant part: “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.” So President Trump’s allies are hoping that last clause authorizes a majority of Senators to overrule the chief justice on matters including subpoena issuance.

But its plain text says otherwise. It’s carefully drawn to be about “questions of evidence”: whether, for example, a line of witness questioning is relevant or not. The issuance of a Rule XXIV subpoena, however, is not a question of evidence. In normal litigation, we’d call it a discovery question.

Whatever one calls it here, it simply isn’t an evidence question: It’s not about whether to admit into evidence a particular document, but about obtaining that document in the first place; and it’s not about whether a witness must answer a specific question, but about forcing that witness at least to show up. And that threshold question falls squarely under Rule V — meaning under the chief justice’s authority alone. And that’s why the Senate, despite outlining the rules for subpoenas, never made its subpoena rules governed by Rule VII.

If there were any doubt, recall the language of the Constitution, which orders that, in an impeachment trial of the president, “the Chief Justice shall preside.” To “preside” is not a merely symbolic role; it can mean, just as it meant during President Andrew Johnson’s impeachment trial, to be asked to make a range of actual rulings, including ones on which the chief justice is not merely the first word but also the last.

There’s a reason that, to our knowledge, no chief justice presiding over a president’s impeachment trial has had to confront precisely this issue before: No president has tried to hide all of the facts from Congress before. To be sure, previous presidents facing the prospect of impeachment — like Presidents Nixon and Clinton — have been accused of failing to share all of the information sought from them. But none ever vowed, as Mr. Trump has, to continue “fighting all the subpoenas” regardless of their particular validity. Ultimately, some accommodation was reached in previous impeachment inquiries as to the scope of information provided — including, for Mr. Clinton’s impeachment trial, an eventual agreement on witness testimony. If Chief Justice Roberts is being asked to answer difficult questions, it is a direct result of President Trump’s scorched-earth approach to congressional oversight.

The framers’ wisdom in giving this responsibility to a member of the judiciary expected to be apolitical and impartial has never been clearer. With key Republican senators having told the American people that they prejudged the case against President Trump before it began and even working with Mr. Trump’s lawyers to build the very defense for which they’re supposed to be the audience, the notion that they’re doing the “impartial justice” they’ve sworn to do is very much in question.

The Democrats’ impeachment managers should immediately ask the chief justice to issue subpoenas for key witnesses and documents, insisting that the Senate rules make him and him alone the decision maker about whether to “make and enforce” those subpoenas. That’s his prerogative — and his responsibility, one he can’t simply shift to the senators as permitted for evidentiary questions under the Rule VII carve-out.

What happens next won’t be totally within Democrats’ or the chief justice’s control. As Representative Adam Schiff acknowledged Thursday, the chief justice can decide evidence questions like executive privilege, but his determinations can be overruled by a majority of senators.

Likewise, when witnesses and documents arrive at the Senate, if questions arise about actual evidentiary rulings — like whether Mr. Bolton or Mr. Mulvaney can be forced to answer particular questions — a majority of senators can, under Rule VII, overrule the chief justice. But the first step is getting them to the Senate in the first place.

There’s icing on this cake. The special rules for Mr. Trump’s impeachment trial drafted by the Senate majority leader, Mitch McConnell, establish certain obstacles for witness testimony, requiring a deposition first and only then a Senate vote on whether to allow the witness to testify. But those rules apply only to a particular category of witnesses — those called “if the Senate agrees” to them. They manifestly don’t apply when it’s the chief justice who orders witnesses to appear.

Mr. McConnell’s rules separately say that the Senate shall debate “whether it shall be in order to consider and debate under the impeachment rules any motion to subpoena witnesses or documents.” That language cannot restrict Rule V’s pre-existing empowerment of the chief justice to issue subpoenas. To amend Rule V requires a two-thirds vote of the Senate, something Mr. McConnell didn’t get. That is presumably why the rules speak only to whether the Senate should subpoena witnesses or documents — but do not restrict the chief justice’s ability to issue subpoenas under his Rule V authority.

And that’s precisely what the Democrats must ask him to do — now.

Neal K. Katyal (@neal_katyal), the author of “Impeach: The Case Against Donald Trump,” and Joshua A. Geltzer (@jgeltzer), a former deputy legal adviser and senior director for counterterrorism at the National Security Council, are law professors at Georgetown. Mickey Edwards, a former Republican congressman from Oklahoma, is a visiting professor at the Woodrow Wilson School of Public and International Affairs at Princeton.

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