The coming fight over additional witnesses in the Senate impeachment trial

There is going to be a fight over additional witnesses in the Senate impeachment trial of Donald Trump. This may involve some complex legal issues.

Our analysis begins with the “potted plant,” Chief Justice John Roberts.

Neal K. Katyal, Joshua A. Geltzer and Mickey Edwards explain at the New York Times, John Roberts Can Call Witnesses to Trump’s Trial. Will He?

An overwhelming number of Americans, including a majority of Republicans [75 percent of registered voters in a new poll released Tuesday by The Quinnipiac poll], 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 Striking new revelations about the president’s role in the Ukraine affair, as reported from an unpublished manuscript by John Bolton, underscore the need for his testimony and that of others.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. [Accessories aiding and abetting a crime in progress.]

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.

* * *

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.

* * *

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.

The media, however, reports that a majority vote of senators is required to subpoena witnesses. Assuming, arguendo, that this is the position the Senate will eventually adopt:

Claire Finkelstein, professor of law and professor of philosophy and the faculty director of the Center for Ethics and the Rule of Law at the University of Pennsylvania, explains The Fight Over Witnesses Is Really a Fight Against Trump’s Obstruction:

The Senate is facing a test of the very issue under consideration in the second article of impeachment, namely Mr. Trump’s obstruction of Congress and the institution’s willingness to rein in a president who is abusing the powers of his office. Regardless of their inclinations on the final vote to remove, every senator should understand the critical nature of this decision for the integrity of the impeachment process, the preservation of congressional authority and ultimately for the rule of law.

First, a vote to subpoena witnesses would strike at the heart of the president’s efforts — which continue to this day — to impede his own removal from office. Earlier attempts by leaders in the House to complete a detailed inquiry without waiting out the courts on the issue of witnesses fell flat. Admittedly, they had good reasons to move on. As Jerry Nadler explained, it took eight months to get a Federal District Court to say that Don McGahn cannot ignore a congressional subpoena, and it could have taken eight more for a final judgment affirming that ruling on appeal.

By sending articles of impeachment to the Senate without having countered the president’s interference with House proceedings, Democratic leaders lost an opportunity. But there is a second shot at that confrontation, with the added benefit that any subpoenas the Senate issues will have bipartisan support. Calling a halt to Mr. Trump’s obstruction of Congress is essential if the process is to be impartial, independent and fully reflective of the conscience of our elected officials.

Second, it is critical to push back on the president’s dangerous expansion of executive privilege, regardless of whether the process results in his removal. Mr. Trump actually believes he is entitled to use his authority to prevent witnesses from testifying or to withhold incriminating documents or other evidence. Consider his open encouragement to witnesses to defy subpoenas, as well as the idea he floated that he would assert executive privilege to block current and former administration officials from testifying, for the sake of “protecting future presidents.” These moves are consistent with Mr. Trump’s view that Article II allows him to do whatever he wants.

If the Senate subpoenas witnesses, the Trump legal team will once more assert executive privilege, or the closely related idea of “testimonial immunity,” to block their enforcement, but this would be a gross abuse of that concept. The Senate must be prepared to go to the mat to enforce any subpoenas it issues, or the impeachment process itself will serve to weaken congressional authority and to establish the president’s entitlement to use the privilege of his office to immunize himself from scrutiny.

The enforcement of subpoenas in an impeachment trial is potentially complex. The Senate Impeachment Rules provide that “the Senate shall have power to compel the attendance of witnesses” and to “enforce obedience to its orders,” meaning that the Senate can use its inherent powers to enforce any subpoena it issues during an impeachment trial. But the sergeant-at-arms, who is empowered to conduct enforcement for Congress, does not have a jail or a full police force at his disposal. Moreover, Congress has not used its enforcement powers since 1934 (and the action prompted an immediate habeas petition from its recipient). This leaves open the possibility that the Senate will turn to the courts, not to rule on the validity of the subpoenas but to help enforce them. Alternatively, the witnesses themselves could turn to a federal court to defend against a Senate order to testify.

* * *

Ultimately, getting clear about the limits of presidential authority and strengthening Congress’s hand is even more important for protecting democracy and the rule of law than removing the 45th president. Leaving unaddressed the question of whether a president can use the powers of his office to shield himself from accountability will make it impossible to undo the damage wrought on our system of checks and balances by the Trump presidency. This is the moment to push back on the expansion of presidential power and to reinforce the principle that we are a government of laws, not men.

Safeguarding Congress’s authority and independence is the most important task facing the House managers in the Senate trial. Reasserting the ability of Congress to control its own process is the first step toward reclaiming that authority.

Trump’s attorneys hint they will invoke executive privilege in an effort to block potentially damaging public testimony from witnesses like former national security advisor John Bolton. Legal experts say that Trump may have waived executive privilege.

Barbara McQuade, law professor at the University of Michigan Law School and a former U.S. attorney for the Eastern District of Michigan, explains Trump waived executive privilege when he called Bolton a liar:

In a series of tweets just after midnight Monday, Trump responded to weekend reporting about a forthcoming book by his former national security adviser John Bolton. The book reportedly reveals that Trump tied military aid for Ukraine to his demands for investigations into his political rivals. Trump’s tweets directly dispute the truth of these claims. He may have been hoping to push wavering Senate Republicans away from agreeing to call Bolton to testify in the impeachment trial. But in the process, Trump probably waived any executive privilege that he could have claimed to keep Bolton quiet if that gambit fails.

* * *

Trump’s tweets directly denying the substance of Bolton’s reported allegations waive any privilege that might have protected them from public disclosure. Privilege is meant to keep a president’s secrets confidential. If the president reveals those secrets or publicly discusses the conversations himself, there is no longer any need to protect them from disclosure.

Not everyone entirely agrees (surprise). Did Trump undercut his ability to exert executive privilege over John Bolton with a tweet?

Does Trump’s discussion of what he talked about with Bolton render the White House unable to claim that his conversations with his former staffer can receive that protection?

Carrie Cordero, an expert who spoke with CNN indicated that it did. But Steven Schwinn, a law professor at John Marshall Law School in Chicago who has written about privilege and spoke with The Post by phone Monday, didn’t agree.

“Ideally what would happen is if the Senate wanted to hear from John Bolton, they’d call John Bolton. John Bolton would appear. And then if John Bolton were asked a question over which Trump thought that he should exert executive privilege, he could assert it at that point — but not categorically over Bolton’s testimony,” Schwinn said. “So a claim that he didn’t say something to John Bolton probably would not really impact the way executive privilege is supposedto work.”

“I don’t see anything where he is revealing information that would later foreclose an assertion of executive privilege,” he added. “He’s saying, I didn’t talk to him about this — and that’s the opposite of what might waive executive privilege.”

Schwinn noted that Trump’s team had danced around explicitly invoking executive privilege, using the threat of it to fend off queries but steering clear of actually forcing the issue.

“Are they asserting executive privilege? Are they asserting something else? Who knows?” he said, imagining the response of Trump’s interlocutors. “We don’t know, and, therefore, we can’t defend against it.”

That said, he did have a view of Trump’s claims in this case.

“Just to be perfectly clear, I think he has utterly no claim of executive privilege here,” he added. “I think that the White House’s theory of executive privilege just is utterly unsupported by the Constitution or the Supreme Court’s rulings.”

In other words, Schwinn thinks that Trump’s tweet didn’t further diminish the vanishingly small validity of any claims of executive privilege in this case.

Things are about to get interesting.