Today, US Supreme Court chief justice John Roberts will spend his 65th birthday in the Senate, presiding over president Donald Trump’s impeachment trial, and perhaps contemplating the “gifts” he’s being given.
To mark the occasion, many impeachment watchers sent Roberts an unwelcome birthday message, calling on him to step up and subpoena witnesses.
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.”
It would take two-thirds of the Senate to overrule Roberts’ subpoenas, putting Republican politicians in the uncomfortable position of having to choose between the legal reasoning of the highest judge in the land and the president’s demands for loyalty. In any case, even if all of the 53 Republican senators present opposed the chief, which seems unlikely (and would be unseemly), they wouldn’t be able to overrule the chief’s call.
Harvard Law School professor Laurence Tribe posited this morning on Twitter that if these rules are invoked, the president may even sue the chief in federal court.
Of course, if witnesses are subpoenaed to testify, a majority of senators can limit what evidence comes into the trial, overruling the evidentiary rulings Roberts makes by a mere 51-vote majority. However, impeachment observers argue that the first step is actually issuing subpoenas to bring in the witnesses.
Roberts, who emphasizes the nonpartisan nature of the judiciary, is widely thought to loathe his current role in the thick of a political proceeding, and may not be game.
Indeed, he’s faced criticism for his focus on civility. A Washington Post editorial last week accused Roberts of ill-advisedly shifting the focus from “damning facts” to mere politesse. The chief accused the parties of “pettifogging,” but the editorial argues he’d do better to protect the substantive integrity of the trial rather than getting preoccupied with matters of tone.
At a dinner in Davos, Switzerland last week, financier George Soros expressed his faith in Roberts, saying:
The trial in the Senate is shaping up to be a strictly pro forma affair because the Republican majority in the Senate is united behind Trump—although chief justice Roberts, who is presiding, may surprise us… I think [he’s] an honorable man who cares about his place in history and… he may be able to allow all the new evidence that has surfaced—in spite of the Trump team’s efforts to repress it—to be heard. Because without witnesses there can’t be a fair trial and my only hope that he will realize this and do something about it.
Today, his birthday, the Trump defense team is expected to conclude its presentation. Whether the chief will then use the powers his current position offers to further illuminate Trump’s activities is not clear. If he does, it will extend the trial that has already been a serious strain on his schedule and his attempts to maintain a semblance of judicial nonpartisanship.