The Chief Justice doesn't rule the Senate

(Editor's Note: This piece first appeared in the Washington Examiner on January 28, 2020.)

The Senate's impeachment trial of President Trump has entered its second week. Some of the president's critics have concerns with how it's going—and they want Chief Justice John Roberts to do something about it. 

In a recent op-ed, Neal Katyal, Joshua Geltzer, and Mickey Edwards assert that Chief Justice John Roberts can require witnesses such as John Bolton and Mick Mulvaney to testify if the House managers first ask him to do so. But their argument rests on a flawed reading of the Senate's rules and practices.

Under the Senate’s standing impeachment rules, the chief justice cannot subpoena witnesses to testify in an impeachment trial unless the Senate first empowers him to do so. The president's counsel or the House managers can ask the chief justice to issue a subpoena under those rules. However, the supplemental rules package (S. Res. 483) approved by the Senate last week prohibits the parties from doing so until senators vote to permit subpoenas for witnesses and documents.

Still, Katyal and Geltzer, law professors at Georgetown University, and Edwards, a former member of the House of Representatives, want the House managers to ignore those rules. They want the House managers to ask Roberts to subpoena former administration official John Bolton and Acting White House Chief of Staff, Mick Mulvaney to testify in the trial. They want senators to probe the revelation that Bolton knew of the president’s alleged decision to force the Ukrainian government into investigating his political opponents by withholding military aid that Congress had already approved.

Notwithstanding these revelations, the Senate’s impeachment rules do not give the chief justice the power to make and issue subpoenas without the Senate’s approval. Rule V stipulates that the chief justice can only make and issue subpoenas “as authorized by those rules or by the Senate.” And Rule VI gives the Senate, not the chief justice, the “power to compel the attendance of witnesses” and “to enforce obedience to its orders.”

The House managers may indeed ask the chief justice to issue a subpoena. Rule XVI stipulates that the president's counsel and House managers must address "all motions, objections, requests, or applications whether relating to the procedure of the Senate or relating immediately to the trial" to the chief justice. But, as noted, S. Res. 483 prohibits the parties from filing motions "permitted under the rules of impeachment" to "subpoena witnesses or documents" until after the Senate votes to decide whether or not such motions will be allowed.

Katyal, Geltzer, and Edwards argue that the supplementary rules package cannot limit the chief justice’s power under Rule V to issue subpoenas. However, Article I, section 5, clause 2 of the Constitution stipulates, "Each House [of Congress] may determine the Rules of its Proceedings." The Senate uses this authority to sanction its rules and precedents, which, by extension, means the limits on subpoenas in S. Res. 483 trump Rule V because they were last agreed to.

Finally, the authors’ claim that the Senate "despite outlining the rules for subpoenas, never made its subpoena rules governed by Rule VII" is not consistent with Rule XXIV. That rule states that "all orders and decisions may be acted upon without objection, or, if objection is heard, the orders and decisions shall be voted on without debate by yeas and nays, which shall be entered on the record, subject, however, to the operation of Rule VII." Without debate means filibusters are not allowed. And if filibusters are not allowed, there is no required two-thirds vote to end debate before voting on the underlying question. All votes are simple-majority.

Regardless of the trial’s eventual outcome, calling on the chief justice to enforce the rules of the Senate by breaking the rules of the Senate only serves to undermine the legitimacy of those rules in the first place.

Moreover, it is reckless to suggest that the chief justice is “not merely the first, but also the last” word on what the Senate does. It implies that senators are ruled by someone whom they and their constituents cannot hold accountable.

That idea, far more than anything that has happened over the course of Trump’s impeachment trial, is detrimental to the future health of the republic.