The Role of the Chief Justice During Impeachment Trials

A recent op-ed authored by two prominent law professors and a former member of Congress argues that Chief Justice John Roberts can issue subpoenas relating to witness testimony in President Donald Trump's impeachment trial. Yet as with earlier claims made that the Chief Justice could decide not to administer the oath to senators, the authors derive their argument from a flawed reading of the Senate’s rules.

The Argument

In the op-ed, Neal Katyal and Joshua Geltzer, both law professors at Georgetown University, and Mickey Edwards, a former member of the House of Representatives, write that Chief Justice Roberts can require witnesses such as John Bolton and Mick Mulvaney to testify under the Senate’s standing impeachment rules without senators’ approval. They also claim that a Senate majority can’t prevent Roberts from issuing the subpoenas and that provisions in the supplemental rules (S. Res. 483) package, passed by senators last week, that prohibit such subpoenas are not binding on the Chief Justice.

First, the authors claim that the Senate’s standing impeachment rules place the power to issue subpoenas “within the authority of the judge, in this case the chief justice.” They claim that the Chief Justice has the power to issue subpoenas without senators’ prior approval under Rule V of the Senate’s standing impeachment rules.

Second, the authors contend that any effort to reverse the Chief Justice’s decision to issue a subpoena “would take a two-thirds vote — not a majority — of the Senate to overrule.” They defend their claim by asserting that subpoenas are not subject to Rule VII of the Senate’s standing impeachment rules. That rule stipulates that the Senate can reverse the Chief Justice’s decisions, on an appeal, with a simple-majority vote. However, the appeal process specified in Rule VII does not apply to subpoenas, according to the authors. They argue instead that Rule VII is “carefully drawn to be about ‘questions of evidence’…The issuance of a Rule XXIV subpoena, however, is not a question of evidence.”  In their view, the Chief Justice “is not merely the first word but also the last” on matters relating to subpoenaing witnesses. 

Third, the authors then argue that any effort to reverse the Chief Justice’s decision to issue a subpoena “would take a two-thirds vote — not a majority — of the Senate to overrule.” In their view, the supplemental rules “cannot restrict Rule V’s pre-existing empowerment of the chief justice to issue subpoenas.” Consequently, senators must amend Rule V if they want to block Roberts from issuing a subpoena. Yet changing Rule V "requires a two-thirds vote of the Senate," which, the authors point out, the supplemental rules package did not get (it passed 53-47).

What the Rules Say

The authors derive their three claims from a flawed reading of the Senate’s rules. A closer look at those rules demonstrates that the Chief Justice cannot subpoena witnesses to testify in an impeachment trial unless the Senate first empowers him to do so. A closer look also highlights the fact that a Senate majority can reverse any decision that the Chief Justice makes, including a decision to subpoena witnesses. Finally, a closer look underscores the relationship between the supplemental rules package and the Senate’s standing impeachment rules under the Constitution.

Chief Justice Can’t Act Without Senate

First, the Chief Justice needs the Senate’s approval before he can act. That means that the Chief Justice cannot subpoena witnesses to testify in an impeachment trial unless the Senate first empowers him to do so. Rule V stipulates that the Chief Justice,

“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.”

In short, the Chief Justice can’t subpoena witnesses if the rules don’t authorize him to do so. And senators make the rules.

 Rule XVI acknowledges that the president’s counsel and House managers have the authorization to ask the Chief Justice to issue subpoenas.

“All motions, objections, requests, or applications whether relating to the procedure of the Senate or relating immediately to the trial (including questions with respect to admission of evidence or other questions arising during the trial) made by the parties or their counsel shall be address to the Presiding Officer only.”

Yet Rule VI underscores the Chief Justice’s lack of discretionary power to act on the “motions, objections, requests, or applications” authorized in Rule XVI. Rule VI stipulates,

“The Senate shall have power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way contempts of, and disobedience to, its authority, orders, mandates, writs, precepts, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice.”

Rule VI gives the Senate, not the Chief Justice, the “power to compel the attendance of witnesses” and “to enforce obedience to its orders,” as well as to “make all lawful orders, rules, and regulations which it may deem essential.” Rule V empowers the Chief Justice to act only under those rules.

 Senators Have The Last Word

Contrary to what Katyal, Geltzer, and Edwards argue in their op-ed, the procedures outlined in Rule VII also govern the process for issuing witness subpoenas. Rule XXIV stipulates,

“All the orders and decisions may be acted upon without objection, or, if objection is heard, the orders and decisions shall be voted on without debate by yeas and nays, which shall be entered on the record, subject, however, to the operation of Rule VII.””

And Rule VII stipulates,

“The presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for a decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate.”

Consequently, decisions to issue subpoenas, while authorized under the rules, are subject to reversal by a majority of senators present and voting. Furthermore, the language in Rule XXIV incorporating Rule VII also gives the Chief Justice the option of declining to decide on whether to issue a subpoena. In such circumstances, the Chief Justice can instead submit the question to the Senate to be resolved.

All Rules Are Equal

Under the Senate’s standing impeachment rules, the chief justice cannot subpoena witnesses to testify in an impeachment trial unless the Senate first empowers him to do so. The president's counsel or the House managers can ask the chief justice to issue a subpoena under those rules. But the supplemental rules package approved by the Senate last week prohibits the parties from doing so until senators vote to permit such subpoenas at a specified point in the trial.

The authors claim that provisions in the supplemental rules package are not binding on the Chief Justice because they contradict provisions in the Senate’s standing impeachment rules. Yet, in doing so, they omit the fact that the Constitution gives the Senate plenary power over its rules of procedure. Specifically, Article I, section 5, clause 2 (the Rules and Expulsion Clause) stipulates, “Each House [of Congress] may determine the Rules of its Proceedings.” The Senate uses this authority to sanction its rules and precedents, which, by extension, means the limits on subpoenas in S. Res. 483 trump related provisions in the impeachment rules because they were last agreed to.