Schiff Repeats Flawed Position That A Two-Thirds Vote Might Be Needed To Overrule The Chief Justice

I recently wrote about the clearly incorrect theory of Neil Katyal that a two-thirds vote would be needed to overturn a ruling of the Chief Justice on calling witnesses. What was astonishing is not just that the New York Times gave credence to the theory but that the lead House manager would reference it last night. It is wildly at odds with the rules and the traditions governing impeachment. Strong arguments could be raised that the presiding officer cannot even break ties on such issues (despite the fact that Chief Justice Salmon Chase maintained such a robust view). With the confrontation today between Chief Justice Roberts and Sen. Rand Paul, this suggestion has bearing on possible votes today or tomorrow.

The argument is frankly absurd. Katyal (and his co-authors) focuses on Rule V which 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.

However, 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.

Schiff undermined his very strong performance by suggesting that there is a real debate between whether a simple majority or super majority is needed. Katyal’s interpretation has been roundly rejected by a wide array of academics. Yet, while the pile up against Dershowitz over his interpretation has been exhaustively covered, but not this equally dubious theory of Katyal. Dershowitz has objected to the bias in the media coverage and, while I criticized his theory and some of his comments yesterday, his position was distorted by some in the media and in Congress.

Roberts is not like the Vice President who is expressly made a member of the Senate when sitting as presiding officer. He can vote for that reason. There is no rule that expressly gives the Chief Justice the right to cast such a tie-breaking role. As I have written, Roberts has two models in history but he seems an unlikely choice to adopt a Chase-like role.

21 thoughts on “Schiff Repeats Flawed Position That A Two-Thirds Vote Might Be Needed To Overrule The Chief Justice”

  1. That photo of Roberts is disgusting.

    The singular American failure for 159 years has been the Supreme Court.

    The high court had but one simple charge, “…to declare all acts contrary to the manifest tenor of the Constitution void.”

    Obamacare should have declared void before it was written. The 2nd Amendment was arbitrarily repealed in Virginia today.

    Most constitutional rights, freedoms, privileges and immunities were stolen from Americans long ago.

    The singular American failure for 159 years has been the Supreme Court.
    __________________________________________________________

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  2. Inspired by LIberty2nd’s comment below, with apologies to Herb Alpert, Lou Adler, and Sam Cooke

    What a Wonderful World
    By
    Adam Schiff

    Don’t know much about history
    Don’t know much biology
    Don’t know much about a science book
    Don’t know much about the law I took

    But I do know I hate Donald Trump
    And if you hate him then you won’t be a chump
    What a wonderful world this would be

    Don’t know much about history
    Don’t know much biology
    Don’t know much about a science book
    Don’t know much about the law I took

    But I do know one and one is four
    And I do know I hate Trump to the core
    What a wonderful world this would be

    Now, I don’t claim to be an C student
    But I’m trying to be
    For maybe by being a C student, baby
    I can win your love for me

    Don’t know much about history
    Don’t know much biology
    Don’t know much about a science book
    Don’t know much about the law I took

    But I do know one and one is four
    And I do know I hate Trump to the core
    What a wonderful world this would be

    La ta ta ta ta ta ta (history)
    Hmm-mm-mm (biology)
    La ta ta ta ta ta ta (science book)
    Hmm-mm-mm (law I took)

    Yeah, I do know I hate Donald Trump
    And if you hate him then you won’t be a chump
    What a wonderful world this would be

  3. The Chase model seems like the most obvious reading of Art I, Sec. 3. Presumably the convention delegates intended the presiding officer to be something other than a figurehead. Otherwise, why bother making the CJ sit through an impeachment trial just for the show of it?

  4. Schiff. Don’t know nuthin bout history. Don;t nomuch about geography. One and One and one to him is two.

  5. Speaking of a two-thirds majority, if you want to prevent what has happened and what Hamilton feared, the simple majority for impeachment ought to replaced by a two-thirds majority requirement.

  6. “Schiff undermined his very strong performance by suggesting that there is a real debate between whether a simple majority or super majority is needed.”

    *******************
    Strong performance? ***chuckle***

  7. Article 1, Section 3, Clause 6 subordinates to the Senate any and all other entities, and no other entity has any degree or measure of power to conduct, modify or, otherwise, affect an impeachment trial.
    _____________________________________________________

    Article 1, Section 3, Clause 6

    The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

    1. Therefore Schiff who is not a member of the Senate has no Constitutional position to posit or demand or suggest anything. Since he has failed to back up the two charges he seeks to cast about for that to which he is not entitled. But the Senate is not the Representative and it’s leaders are not Pelosi’s. Schiff is a weak voice whose echo less whispers die with less impact and he wonders who will help reminding us that an owl has more to say than does Schiff or his characterless masters in their failed revolution.

    1. Strong with the stench of continued and unbroken string of failures. Our host set you up on that one. But then Our President does it on a continuous basis and the Schiff’s always bite.

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