The Times Editorial Misstates The Law In Call For Roberts To Issue A Subpoena To Bolton

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.

158 thoughts on “The Times Editorial Misstates The Law In Call For Roberts To Issue A Subpoena To Bolton”

  1. The House managers are merely guests who had their turn. Only the Senate is Constitutionally empowered to conduct the trial phase. That is if there were a trial from the looks of things the left got most of their complaints by looking in a mirror,

  2. I agree with about half of your arguments, generally. And disagree, vehemently, with about half. (Yes, scientific method applied to derive these allocations.) On this, I agree and more…

    Aside: You’re wrong about bribery. Absolutely applied. This article was left on the table simply due to polling, the political lambasting when trying to explain its archane terminology (blackmail did not exist at framing), as well, the more ambiguous articles denied a clear political counter to the charge. (When asked, Dem leadership responded the Abuse of Power article encompassed the tabled Bribery charge.) Recall, impeachment is a POLITICAL exercise.

    I, too, was struck by the strong scent of desperate stretching in Katyal’s reasoning:

    V. “authorized by these rules or by the Senate”
    VI. “Senate shall have power to compel the attendance of witnesses” distinct verbiage from Presding Officer.
    VP being supplanted only breaks ties in regular course of duties.
    And in Johnson trial, Chase adds “unless the Senate think otherwise” as he issues his first order, and the senators withdraw to VOTE on it, and there after.

    Now, let’s talk about your opening statement in effusive support of AG Barr’s confirmation, at his hearing. I believe some humility is in order. And at least a pound of flesh…

    https://jonathanturley.org/wp-content/uploads/2019/01/Statement.Barr-Nomination.Turley-Written-Testimony.pdf

  3. I’m watching Alan Deshowitz’s argument on PBS. It’s oddly like Professor Turley’s testimony a few months back; this high-minded review of history told with great enthusiasm. That tone of voice like, “Isnt learning fun?” A parade of historic names and awe-inspiring references to the constitution. Just no mention of Donald Trump.

    Funny how that goes. One would think the only way to grasp Trump’s defense is to put him aside. We have to think in terms of a theoretic president. A Henry Fonda type, perhaps. But not Donald Trump.

    This defense Dershowitz presents is a variation of the basic What About. It’s not about Donald Trump. It’s about ‘someone else’. Some historic figure maligned by his contemporaries. Donald Trump can only be described as someone else.

    1. I agree with about half of your arguments, generally. And disagree, vehemently, with about half. (Yes, scientific method applied to derive these allocations.) On this, I agree and more…

      Aside: You’re wrong about bribery. Absolutely applied. This article was left on the table simply due to polling, the political lambasting when trying to explain its archane terminology (blackmail did not exist at framing), as well, the more ambiguous articles denied a clear political counter to the charge. (When asked, Dem leadership responded the Abuse of Power article encompassed the tabled Bribery charge.) Recall, impeachment is a POLITICAL exercise.

      I, too, was struck by the strong scent of desperate stretching in Katyal’s reasoning:

      V. “authorized by these rules or by the Senate”
      VI. “Senate shall have power to compel the attendance of witnesses” distinct verbiage from Presding Officer.
      VP being supplanted only breaks ties in regular course of duties.
      And in Johnson trial, Chase adds “unless the Senate think otherwise” as he issues his first order, and the senators withdraw to VOTE on it, and there after.

      Now, let’s talk about your opening statement in effusive support of AG Barr’s confirmation, at his hearing. I believe some humility is in order. And at least a pound of flesh…

      https://jonathanturley.org/wp-content/uploads/2019/01/Statement.Barr-Nomination.Turley-Written-Testimony.pdf

    2. You seem to be arguing that the only allowable commentary on the Constitution and the US Code is that critical of the current defendant. Framing commentrary on the law of the nation in such personal terms is not only divisive, it skirts close to encouraging a Constitutionally-forbidden bill of attainder (and the Articles of Impeachment originally presented to the House for a vote skated very close to that). Article II as approved by the House could be argued to be such a bill of attainder.

    1. David Benson is the God Emperor of Making Stuff Up and owes me forty-two citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after sixty-one weeks, and needs to cite all his work from now on. – Let’s see how Teflon Quid Pro Joe is. Pam Bondi really did a journeywoman’s op research on him yesterday. He is sinking in the polls as it is, not sure any of Pam’s research will help. 🙂

  4. BOLTON TRIED TO TELL TRUMP

    BUT LATTER HAD GRIEVANCES

    John Bolton’s Book describes a White House meeting where Bolton advised Trump to release aid to Ukraine. But Trump had grievances against Ukriane. Which isnt surprising. Ukrainians apparently cooperated with Federal Attorneys in prosecuting Paul Manafort.

    So it seems believable that Trump would sit back in his chair; making that dismissive face he’s so fond of making. Like “Screw Ukraine!” They annoyed Donald Trump by prosecuting Manafort. So they’re going to be at Putin’s mercy, making peace on Putins terms.

    None of this is right, of course for any president. It’s shockingly disturbing. It’s Richard Nixon all over again. A president more concerned with personal grievances than anything else. Yet Trump’s Defense Team is telling us this behavior doesnt rise to impeachment!

    It’s a ridiculous defense and the public will see through it. Historians will see through it. This defense would have us believe a president can disregard all advice and not be held accountable.

    1. Bolton advised Trump to release aid to Ukraine. But Trump had grievances against Ukriane. Which isnt surprising.
      __________________________________________________

      Sounds like Bolton was not in the loop on why aid was withheld. He is just another witness like all the ones before that does not know what is really going on

      1. Jinn, if that’s the case, the Bolton should be allowed to tell the senate how hopelessly out of the loop he was.

        1. And if Bolton is called to show that he was supposedly ” out of the loop”, the whistleblower needs to testify to see if he was “in the loop”.
          Vindman should also be recalled, so the questions that Schiff interrupted in the House can be asked without interruption in the Senate trial.

          1. whistleblower needs to testify to see if he was “in the loop”.
            _________________________________________
            You are still operating under the assumption that trump is guilty and you believe that if they can smear somebody else with enough dirt that will somehow make Trump’s guilt excusable.

            The people in the loop are the close advisor of Trump who can provide testimony of why aid was delayed that will clear trump of any wrong doing. There is no reason to believe the whistleblower is one of those witnesses.

            1. Jinn, the preponderance of evidence is that not only is Trump guilty of the accusation, but that he is also not a 3D chess playing genius. He’s a needy and impulsive sociopath with just enough charisma to tell us up is down if it fits his short term agenda and have 40% of Americans agree with him.

              1. Jinn, the preponderance of evidence is that not only is Trump guilty of the accusation, but that he is also not a 3D chess playing genius
                ____________________________________
                If that statement were true nobody would be talking about witnesses.

                You have jumped to a conclusion about what you will hear

                trump doesn’t have to be a genius. He just needs to be smarter than you and your fellow true believers and that is not a very high bar to clear.

                1. Jinn, if you were as clever as you seem to think you are – no, believing in conspiracies is a sign of mental weakness, not strength (see this blog for examples) – you’d understand that Bolton answers GOP complaints about no 1st person witnesses and if he says what is expected, will put them in a box and convince more voters that “he didn’t do it” is a lie.

                  Objective and honest observers can see what happened already, and the absence of evidence to the contrary – please, offer some – confirms that likelihood. It’s not like you can say he has too many principles to have done it. He has none.

                  1. believing in conspiracies is a sign of mental weakness
                    _________________________________

                    Do you mean a like believing in Russia collusion?

                  2. conspiracies are proven in courts all over the world day after day
                    they are only hypotheses until they have factual support and evidence

                    then they become “conspiracy theories”

                    and yet

                    it is a well known ploy of of the establishment to suppress skeptics and questioning aimed at favored narratives as “conspiracy theories”

                    see FOIA obtained copy of CIA Dispatch #1035-960

              2. the preponderance of evidence is that not only is Trump guilty of the accusation

                Preponderance, hmm. Isn’t that lawyer-speak for plenty of, or an overwhelming amount? Well gosh, that sounds like the Democrats have an open and shut case. Let’s get through the 16 hours of questions and then vote on the articles of impeachment.

                Wait. What? Democrats want to call more witnesses? Now why is that? Well here’s another important sounding word: Exiguous. As in the Democrats impeachment case is atrociously inadequate due to their exiguous amount of evidence and material witnesses. Translated, that means they have a case built on feelings and not on actual evidence. Hence the demand for more witnesses that will confirm their feelings, but will never do anything to change the evidence:
                1. Call transcript shows no QPQ.
                2. Zelensky said there was no pressure, no linkage to the delay in aid.
                3. Ukraine did not know about the delay in aid at the time of the call.
                4. Ukraine received the aid prior to September 30th, without the alleged preconditions.

                A 5th fact that won’t help the Democrat’s case, is that there is a preponderance of evidence that Ukraine has a corruption problem and President Trump (as is duty) was concerned that our aid would not support corruption.

                1. Yeah, as if Trump, who’s best buddies are Putin, Lil Kim, MBS, and Erdogan has ever shown any interest in corruption among foreign governments.

                  A heads up: Olly produced a similar list of falsehoods and incomplete information last week and I responded specifically and politely and asked his response. His response was to denounce me personally without answering even one point. The guy has no balls or self respect.

                  1. Olly produced a similar list of falsehoods and incomplete information

                    So you’re still going with your buddy Biden’s we believe in truth not facts form of reasoning. Your comment above saying if he says what is expected, will put them in a box and convince more voters that “he didn’t do it” is a lie. is really just a tell on what this impeachment farce is all about, classic projection by the Democrat party and their interference in the 2020 election. Voters have seen what is a lie and will respond accordingly.

                    I responded specifically and politely and asked his response.

                    Given your fixation with my gonads last week and my balls this week, your Gainesville definition of polite is suspect.

                    1. A clarification: my comments on Ollys lack of the anatomical symbols of fortitude was after he called me every name in the book while not answering one of my half-dozen points, numbered to respond to his. Noting his obvious lack of self respect was new this morning.

                      Don’t waste your time on him.

                    2. was after he called me every name in the book

                      What book would that be? As you know, our moderator is not prone to ignoring inflammatory rhetoric. You are no longer on here as Anon1 because of your violation of those policies. Additionally, anyone that follows my comments know that my colorful Navy vocabulary is typically not on display here. Lastly, the blog archive doesn’t lie. So take your time, find the post supporting your accusation. And we’ll all get a solid understanding of your sensitive nature.

                      Ready. Go.

                    3. The names werent the point Olly. I’m used to that from your other disturbed allies here and couldn’t care less. Your inability to carry on a discussion of facts covered up by denouncing me personally is the point, a common pattern here.

                      Go away.

                    4. The names werent the point Olly.

                      Reading comprehension is not a problem of mine. But you’re suggesting writing comprehension (if there is such a thing) is apparently a problem for you. I will continue to engage your commentary and when warranted, I will denounce your feelings of what you believe to be true by consistently pointing out the unchangeable facts. That is the common pattern that has you now lying about my posts and begging me to go away.

                      Deal with it.

        2. Bolton should be allowed to tell the senate how hopelessly out of the loop he was.
          ________________________________________
          Yes he should testify, but it is quite possible that he has no direct knowledge of why the aid was delayed and thus will have to admit he doesn’t know for sure and is just speculating like the other witnesses have been.

          1. Jinn no explanation has been given for why it was held up and then why it was released, though the reason is clear.

            1. Jinn no explanation has been given for why it was held up and then why it was released
              ____________________________________
              Yes and apparently you believe that assume that allows you to fill in the blank.

              I submit that the reason no explanation was given is because it would make fools like you leap to your own erroneous explanation then act foolishly based on your erroneous conclusion. And then after behaving badly for many months when the real explanation is revealed, those who have staked their reputations on a faulty conclusion end up discredited and exposed as being foolish.

      1. Not sure how precise the Wiki biography is, but it appears he held 2d and 3d echelon positions in a series of campaigns over a period of 12 years, the last nearly 20 years ago. Some of the campaigns were competitive and some not. The more recent ones were not. He evidently has had some patronage jobs here or there. No clue how he’s supposed to be earning a living now. A great many of these NeverTrump chumps appear to be shills in the literal sense. (The Bulwark has been funded by Pierre Omidyar, &c). No clue who his patron is, or what kind of retainer he’s getting.

        1. TIA:
          He’s a ne’er do well political hack whose made a living attacking Trump because he can’t catch a winning thoroughbred to ride. There’s one of these guys for every mosquito along the Potomac.

      2. Mespo,

        Just wait till the link comes up on Willard, The Rat, Mitt Romney comes up so I can post it. What a POS!

        Among other places it’s coming up on The War Room with Owen Shroyer today, 1/27/20.

        And just in Bolton’s ties to Willard the Rat. Romney & their ties to Jeffrey Epstein!

      1. The Clintons were sufficiently threatened by a live Epstein. Does it follow that the Clintons are threatened by a live Prince? Don’t get in the limo, Andy.

    1. Dunno about that, but this crew are exceedingly annoying, and you’ll recall Gov. Haley blew the whistle on them. You had a whole mess of insubordinate officials at the NSC and the State Department (fuming that Trump was disrupting the policy agreed to by ‘the Interagency’) and cheesing them off is supposed to be an impeachable offense. I’m ready at this point to put Bolton, the Vindman brothers, Marie Yovanovitch, Rex Tillerson, Ciarmella, the cheesy lawyer who was ensconced in the National Security Division and then the DNI office, Adam Schiff, little miss American-by-Choice, and both Bidens, in a sealed box car and send it careering toward a wooden trestle that hasn’t been maintained since Coolidge was in office.

      1. hmmm cattle cars and mine shafts that was in book i read once i cant remember the name

        they say he’s a dictator? if he was then they would not be saying it. not for long at least.

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