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How Many Republican Votes Are Needed to Subpoena Bolton? 4, 3 or None? How Many Republican Votes Are Needed to Subpoena Bolton? 4, 3 or None?
(32 minutes later)
WASHINGTON — A potentially pivotal disclosure from a book draft by John R. Bolton, President Trump’s former national security adviser, about the Ukraine affair has heightened the question of whether the Senate will call Mr. Bolton as a witness in the impeachment trial.WASHINGTON — A potentially pivotal disclosure from a book draft by John R. Bolton, President Trump’s former national security adviser, about the Ukraine affair has heightened the question of whether the Senate will call Mr. Bolton as a witness in the impeachment trial.
But the rules for how a witness might be subpoenaed are murky, with gaps in the written procedures and only a few precedents to look to. It is also not clear whether or how many Republican senators would have to be willing to break partisan ranks and vote with Democrats to call witnesses. But the rules for how a witness might be subpoenaed are murky, with gaps in the written procedures and only a few precedents to look to. It is not clear whether or how many Republican senators would have to be willing to break partisan ranks and vote with Democrats to call witnesses.
With a 51-vote majority.With a 51-vote majority.
Under the special procedures for the Trump impeachment trial that the Senate approved this month, after Mr. Trump’s defense team finishes its presentation and there is a period of questions, the Senate will decide whether it wants to hear from witnesses. A motion to hear witness testimony can pass with a simple-majority vote.Under the special procedures for the Trump impeachment trial that the Senate approved this month, after Mr. Trump’s defense team finishes its presentation and there is a period of questions, the Senate will decide whether it wants to hear from witnesses. A motion to hear witness testimony can pass with a simple-majority vote.
Assuming all 47 members of the Democratic caucus stick together, that would require at least four Republican senators to defy Mr. Trump and vote for a motion to subpoena Mr. Bolton. Political observers have focused on Senators Lamar Alexander of Tennessee, Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah as Republicans to watch.Assuming all 47 members of the Democratic caucus stick together, that would require at least four Republican senators to defy Mr. Trump and vote for a motion to subpoena Mr. Bolton. Political observers have focused on Senators Lamar Alexander of Tennessee, Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah as Republicans to watch.
Mr. Trump explicitly linked his holdup of aid to Ukraine to a push for politically beneficial investigations, Mr. Bolton wrote. On Monday, Mr. Romney told reporters that “it’s increasingly likely that other Republicans will join those of us who think we should hear from John Bolton,” and Ms. Collins said on Twitter that the reports about Mr. Bolton’s book “strengthen the case for witnesses and have prompted a number of conversations among my colleagues.”Mr. Trump explicitly linked his holdup of aid to Ukraine to a push for politically beneficial investigations, Mr. Bolton wrote. On Monday, Mr. Romney told reporters that “it’s increasingly likely that other Republicans will join those of us who think we should hear from John Bolton,” and Ms. Collins said on Twitter that the reports about Mr. Bolton’s book “strengthen the case for witnesses and have prompted a number of conversations among my colleagues.”
In theory, Chief Justice John G. Roberts Jr. could decide — if he wants to be assertive.In theory, Chief Justice John G. Roberts Jr. could decide — if he wants to be assertive.
When a vote on a motion ends in a tie, the motion fails. But during the first presidential impeachment trial — the unsuccessful effort to remove Andrew Johnson in 1868 — Chief Justice Salmon P. Chase twice cast tiebreaking votes on motions as the presiding officer. They both passed. (On a third tie, Mr. Chase abstained, so that motion failed.)When a vote on a motion ends in a tie, the motion fails. But during the first presidential impeachment trial — the unsuccessful effort to remove Andrew Johnson in 1868 — Chief Justice Salmon P. Chase twice cast tiebreaking votes on motions as the presiding officer. They both passed. (On a third tie, Mr. Chase abstained, so that motion failed.)
The Senate’s general rules for impeachment trials are silent about whether the chief justice may cast tiebreaking votes on procedural motions, and the current version of them — last revised in 1986 — still does not address that question. A resolution that the Senate approved this month laying out specific procedures for the Trump trial is also silent about ties.The Senate’s general rules for impeachment trials are silent about whether the chief justice may cast tiebreaking votes on procedural motions, and the current version of them — last revised in 1986 — still does not address that question. A resolution that the Senate approved this month laying out specific procedures for the Trump trial is also silent about ties.
Some senators in 1868 believed that Chief Justice Chase lacked that power under the Constitution and moved to declare his intervention null. But the Senate voted down the objection, creating a precedent that chief justices do have tiebreaking power in impeachment trials, just as vice presidents have tiebreaking power in votes on legislation and nominations.Some senators in 1868 believed that Chief Justice Chase lacked that power under the Constitution and moved to declare his intervention null. But the Senate voted down the objection, creating a precedent that chief justices do have tiebreaking power in impeachment trials, just as vice presidents have tiebreaking power in votes on legislation and nominations.
To be sure, both of the procedural motions that Chief Justice Chase voted on were far less momentous than calling Mr. Bolton as a witness would be: They involved whether the Senate should take a short break and adjourn for the day.To be sure, both of the procedural motions that Chief Justice Chase voted on were far less momentous than calling Mr. Bolton as a witness would be: They involved whether the Senate should take a short break and adjourn for the day.
In the only other presidential impeachment trial — against Bill Clinton in 1999 — Chief Justice William H. Rehnquist cast no tiebreaking votes; the issue never came up.In the only other presidential impeachment trial — against Bill Clinton in 1999 — Chief Justice William H. Rehnquist cast no tiebreaking votes; the issue never came up.
It’s unclear.It’s unclear.
In an opinion article published Monday by The New York Times, three legal experts declared that he could. They argued that Chief Justice Roberts, as the presiding officer, has unilateral power to subpoena witnesses because a clause in the 1986-era rules for impeachment trials says presiding officers may issue orders on their own.In an opinion article published Monday by The New York Times, three legal experts declared that he could. They argued that Chief Justice Roberts, as the presiding officer, has unilateral power to subpoena witnesses because a clause in the 1986-era rules for impeachment trials says presiding officers may issue orders on their own.
There are several reasons for caution about this idea. First, even if this interpretation of the rules were correct — and even if Chief Justice Roberts were willing to subpoena Mr. Bolton on his own, notwithstanding the more limited procedure laid out in the Trump trial resolution — a subpoena, by itself, would merely compel Mr. Bolton to show up physically.There are several reasons for caution about this idea. First, even if this interpretation of the rules were correct — and even if Chief Justice Roberts were willing to subpoena Mr. Bolton on his own, notwithstanding the more limited procedure laid out in the Trump trial resolution — a subpoena, by itself, would merely compel Mr. Bolton to show up physically.
As the legal experts acknowledged, the 1986 rules also empower a Senate majority to decide that information is irrelevant and should not be admitted as evidence. Thus, Chief Justice Roberts could bring Mr. Bolton to the trial, but a Senate majority could still decline to hear what he has to say. That said, a subpoena from Chief Justice Roberts could increase momentum in favor of testimony.As the legal experts acknowledged, the 1986 rules also empower a Senate majority to decide that information is irrelevant and should not be admitted as evidence. Thus, Chief Justice Roberts could bring Mr. Bolton to the trial, but a Senate majority could still decline to hear what he has to say. That said, a subpoena from Chief Justice Roberts could increase momentum in favor of testimony.
Second, Chief Justice Roberts might reject the idea that he has the power to subpoena Mr. Bolton unilaterally were House impeachment managers to propose it, said Michael Davidson, who served as the Senate legal counsel — the chamber’s top lawyer — from 1979 to 1995.Second, Chief Justice Roberts might reject the idea that he has the power to subpoena Mr. Bolton unilaterally were House impeachment managers to propose it, said Michael Davidson, who served as the Senate legal counsel — the chamber’s top lawyer — from 1979 to 1995.
Mr. Davidson said that the Senate parliamentarian would most likely advise Chief Justice Roberts that the two sets of impeachment trial procedures must be read together, and that where they conflict, the more recent and specific rule — those passed for the Trump trial — should prevail.Mr. Davidson said that the Senate parliamentarian would most likely advise Chief Justice Roberts that the two sets of impeachment trial procedures must be read together, and that where they conflict, the more recent and specific rule — those passed for the Trump trial — should prevail.
Even if the parliamentarian or Chief Justice Roberts were to say otherwise, Mr. Davidson added, a Senate majority could always vote to override them.Even if the parliamentarian or Chief Justice Roberts were to say otherwise, Mr. Davidson added, a Senate majority could always vote to override them.
Finally, the opinion article said that changing Senate rules requires a two-thirds supermajority, and the Trump trial resolution fell short. But a simple majority of senators can change its rules, Mr. Davidson said. A two-thirds vote would be required to break any filibuster blocking an up-or-down vote on a rules change, but Democrats did not filibuster the Trump trial resolution.Finally, the opinion article said that changing Senate rules requires a two-thirds supermajority, and the Trump trial resolution fell short. But a simple majority of senators can change its rules, Mr. Davidson said. A two-thirds vote would be required to break any filibuster blocking an up-or-down vote on a rules change, but Democrats did not filibuster the Trump trial resolution.