Appealing to Justice

There are two ways to get witnesses. One requires only 50 votes.

With the opening statements from the House managers at an end and the first few hours of defense testimony complete, all eyes remain fixed on a handful of critical centrist Republicans.

As I predicted on December 20, House Speaker Nancy Pelosi had a definite strategy in mind by delaying the Articles of Impeachment for nearly a month. The delay, coupled with a startling gambit by her Senate counterpart Chuck Schumer, forced a public conversation about witnesses and evidence which prevented Senate Majority Leader Mitch McConnell from quietly passing a rules resolution that would have fast-tracked the Senate trial to an acquittal vote without evidence or witnesses. The delay allowed more time for new evidence to emerge and pressure to be placed on key Republican swing votes.

The strategy paid off. After new evidence emerged and John Bolton signaled his willingness to testify in the senate, centrist senators on both sides stated they wanted a trial which left the door open for new witness testimony. McConnell was forced to change his original rules proposal by hand under pressure from as many as fifteen GOP senators.

Pelosi’s quiet victory gave Schumer the leverage to force nearly a dozen votes during the opening day of the trial, successfully earning the defection of Susan Collins and making it more likely for the centrist bloc to swing left after opening statements.

One consequence of the extended debate on January 21 was that Trump’s defenders were pushed into the weekend, where their opening statements would begin on Saturday, January 25, but not resume until Monday, January 27. Trump, famously obsessed with TV ratings, was livid.

As a result, Trump attorney Jay Sekulow, Pat Cipollone, Mike Purpura, and Pat Philbin provided only a “trailer” of their anticipated defense on Saturday morning, reserving the main thrust for Monday. They made a point of repeating how much time the Democratic House managers had taken, suggesting that their remarks would ultimately prove to be shorter. This initial “trailer” focused primarily on claims that evidence had been presented selectively by the House as well as categorical attacks on the impeachment process.

Earlier, the first day of arguments saw the question of witness and evidence subpoenas delayed, albeit with a GOP statement of support for new witness testimony later in the trial. Any such consideration will likely come on January 31, after two more days of defense testimony and roughly 16 hours of questioning by the senators. At that point, the House managers are expected to move for the subpoenas of John Bolton, Mick Mulvaney, and other key witnesses previously prevented from testifying under orders from the White House. Under conventional wisdom, it would then require at least four Republican defections for the motion to receive the 51 votes it needs to succeed. It is expected that Susan Collins, Mitt Romney, and Lisa Murkowski are the most likely senators to support new witness testimony, with a possibility that Lamar Alexander or a few others might join.

Only earning three votes from Collins, Romney, and Murkowski (which aren’t yet guaranteed) would make the vote tally 50–50, not enough to subpoena new witnesses. However, there’s a twist I referenced on December 20.

In that post, I identified several key points at which the trial could bifurcate. We have already seen a dispute over the rules resolution unfold and develop critical momentum for later in the trial. Several of the other possible branches, like a motion for dismissal or the appointment of an evidentiary committee, have been essentially ruled out. There was one possible bifurcation, however, that I didn’t explore.

Under Senate rules for impeachment trials, the Chief Justice acts as the presiding officer in place of the Vice President.

As Chief Justice presiding in an impeachment, John Roberts can cast a single tie-breaking vote if the Senate becomes tied on matters of procedure. During the impeachment trial of Andrew Johnson, Chief Justice Salmon Chase cast two tie-breaking votes on procedural matters, each time in favor of allowing new evidence to be heard. In 1999, however, Chief Justice William Rehnquist took a hands-off approach, abstaining from any appearance of partisanship. Roberts, who replaced Rehnquist as Chief Justice in 2005, is likely to follow suit, especially given an even more polarized atmosphere.

However, the Chief Justice has one other power under impeachment rules. As House manager Adam Schiff alluded to on Friday, Roberts can make bench rulings on matters of law. For example, if the White House were to assert executive privilege to stop John Bolton from testifying, Roberts could rule on whether privilege was proper. These rulings are subject to a simple majority vote from the Senate, meaning that it takes only 51 senators to override the Chief Justice’s decisions.

That’s where things get interesting. If the House managers enter formal motions to subpoena John Bolton, Mick Mulvaney, and others, they will need 51 votes to succeed. If the vote is 50–50, Roberts likely will not break the tie, and it will fail. However, if Schiff appeals to Roberts to allow witness testimony, the Republicans will need 51 votes to overrule him, meaning a vote of 50–50 would result in witnesses being called.

The Democrats need four Republicans to pass motions for witnesses, but they only need three Republicans to uphold a ruling from the Chief Justice.

David MacMillan is a freelance writer, paralegal, and law student in Washington, DC. He writes about science, politics, and culture as he finishes his book about his departure from creationist science denial.

Anyone with really good ideas will always be looking for better ones. Writing about law, fundamentalism, and science denial…book to follow.

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