Yesterday’s question and answer period was a largely choreographed exercise with legal teams spontaneously responding to questions with preset video clips and visual displays. However, there was one major but largely overlooked moment that raises some serious issues over the authority of the presiding officer vis-a-vis the Senate. In the midst of the questions, Robert spiked a question from Sen. Rand Paul (R, Ky). It concerned the whistleblower and the underlying legal premise for barring the question could prove controversial today. UPDATE: Roberts again refused to read the question of Sen. Paul. After the Chief Justice refused to ask his question, Rand walked out of the Senate.
Sen. Paul appears to have delivered a question to Roberts that would have named the alleged whistleblower. Roberts had indicated that he was going to disallow questions on the whistleblowers but he was reportedly deterred from that course by the threat of being overruled by the Senate. He allowed general questions about the whistleblower by preventing Paul from asking his question. Paul reportedly pledged to revisit the issue today and was overheard by reporter Niels Lesniewski in saying “I don’t want to have to stand up to try and fight for recognition . . . “If I have to fight for recognition, I will.”
This creates a fascinating conflict. Federal law does not guarantee anonymity of such whistleblowers in Congress — only protection from retaliation. Conversely, the presiding officer rarely stands in the path of senators seeking clarification or information from the legal teams. Paul could name the whistleblower on the floor without violation federal law. Moreover, the Justice Department offered a compelling analysis that the whistleblower complaint was not in fact covered by the intelligence law (the reason for the delay in reporting the matter to Congress). The Justice Department’s Office of Legal Counsel found that the complaint did not meet the legal definition of “urgent” because it treated the call between Trump and a head of state was if the president were an employee of the intelligence community. The OLC found that the call “does not relate to ‘the funding administration, or operation of an intelligence activity’ under the authority of the Director of National Intelligence . . . As a result, the statute does not require the Director to transmit the complaint to the congressional intelligence committees.” The Council of the Inspectors General on Integrity and Efficiency Council strongly disagree with that reading.
Regardless of the merits of this dispute, Roberts felt that his position allows him to curtail such questions and answers as a matter of general decorum and conduct. It is certainly true that all judges are given some leeway in maintaining basic rules concerning the conduct and comments of participants in such “courts.”
This could lead to a confrontation over the right of senators to seek answers to lawful questions and the authority of the presiding office to maintain basic rules of fairness and decorum. It is not clear what the basis of the Chief Justice’s ruling would be in barring references to the name of the whistleblower if his status as a whistleblower is contested and federal law does not protect his name. Yet, there are many things that are not prohibited by law but still proscribed by courts. This issue however goes to the fact-finding interests of a senator who must cast a vote on impeachment. Unless Majority Leader Mitch McConnell can defuse the situation, this afternoon could force Roberts into a formal decision with considerable importance for this and future trials.
Update: Paul said that his question did not mention the name of the whistleblower and instead focused on “whether or not individuals who were holdovers from the Obama National Security Council and Democrat partisans conspired with Schiff staffers to plot impeaching the president before there were formal House impeachment proceedings.” If that is the full question, I fail to see the justification for Roberts refusing to read it. There have been various questions on both sides raising political influences and conspiracies. Once the presiding officer begins to bar questions as disrespectful or objectionable, it is incumbent on the officer to explain the criteria or basis for such regulation.