The news of the Bolton book leak has electrified Washington and, as intended, has rekindled calls for witnesses. I have long stated a preference for witnesses despite my criticism of the historic blunder of the House leadership in rushing this impeachment forward on an incomplete record. However, the media has now latched on to a column in the New York Times by Neal K. Katyal, Joshua A. Geltzer and Mickey Edwards that Chief Justice Roberts can not only order a subpoena for Bolton solely on the request of the House managers but that his decision cannot be overturned by anything less than a two-thirds vote. I believe that the premise of the argument on the vote is highly flawed and should not be seriously entertained by either the House managers or the Chief Justice.
For the record, I have long disagreed with Katyal on these and other issues raised during the Trump Administration. For example, I strongly disagreed with Katyal that the challenge going to the Supreme Court over Trump travel orders would be successful. (It wasn’t). I also disagreed with his long support for impeachment on various grounds, including what he described as a strong if not unassailable case for a bribery charge. In my recent testimony before the House Judiciary Committee regarding President Trump’s impeachment, I opposed the position of my fellow witnesses that the definition of actual crimes is immaterial to their use as the basis for impeachment — and I specifically opposed impeachment articles based on bribery, extortion, campaign finance violations or obstruction of justice. The committee ultimately rejected those articles and adopted the only two articles I felt could be legitimately advanced: abuse of power, obstruction of Congress. It clearly did not view bribery as a strong article of impeachment.
We disagree on this novel argument. The long-standing rule is that the Senate ultimately controls by majority vote question of evidence. The rules include an express statement 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.” Katyal (and his co-authors) however come up with the novel position that this is not really an evidentiary question even if it would be a subpoena for evidence. Instead, he argues that the Senate could not overturn the Chief Justice absent a two-third vote. The basis is something of a legal slight-of-hand.
The argument is that this falls under 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.” Since this rule was not changed, they argue that it would take a two-thirds vote since this goes to the foundational authority of the presiding officer.
That is highly contestable. Rule V simply refers to the general authority of the Chief Justice to issue orders, mandates, writs, and other precepts. It includes a specific reference to carrying out the decision of the Senate majority on such questions. There is no change or challenge to that authority in a fight over a subpoena. The subpoena itself is an evidentiary ruling that is subject to the majority vote of such questions. Otherwise, according to their logic, any order could be viewed as a challenge to the authority of the presiding officer and subject to a two-thirds vote.
To put it simply, the argument tries too hard. I believe that the New York Times editorial is fundamentally in error on the controlling rules. However, this is admittedly a relatively uncharted territory. Frankly, it is an area that Roberts likely would loathe to enter. Yet, if forced to do so, he should reject this argument.