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.