ANOTHER WAY — TO SECURE WITNESSES IN THE SENATE TRIAL
By John P. Flannery
Another way to get witnesses, based on a reading of the Senate rules, is an application made directly to the Presiding Officer, Chief Justice Roberts, seeking a subpoena to issue for John Bolton.
This draft application (attached) for a subpoena for Mr. Bolton argues that the Presiding Officer has the authority on his own to issue a subpoena without reference to any vote by the Senate in the pending impeachment trial.
Action by the Chief Justice on this subpoena question would very likely take the “politics” out of the issue.
There has even been a proposal by one of the Senators to do just that and have the Chief Justice decide the question of witnesses.
Fence sitting Senators should prefer a procedure such as this because it relieves them from voting on the subpoena issue. It also favorably comports with the precise oath that each Senator swore, as this process is entirely impartial.
The following draft is an ensemble production but the principal contributors, serving pro bona publica, and responsible for the draft document that follows are two DC counsel, Paul D. Cullen, Sr., and Daniel Toomey. They have some long experience in difficult legal and procedural matters.
The following draft application for a subpoena might be used as is, or revised.
It is a draft, we can’t say that enough, and is proposed by interested third parties, interested only because they care about the proceedings in the Senate, and that they proceed correctly, and they have no official or informal connection with the House Managers or the President’s counsel or the Senate.
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PROPOSED DRAFT — an exercise in process — that we believe may be of some assistance in the pending discussion about the use of witnesses in the Senate Impeachment trial, and about who may call the witnesses and how they may call the witnesses in accordance with the senate rules –
IN THE SENATE OF THE UNITED STATES
Sitting as a Court of Impeachment
APPLICATION PURSUANT TO RULE XVI
FOR THE ISSUANCE OF A SUBPOENA TO JOHN R. BOLTON
DIRECTED TO THE PRESIDING OFFICER
BY THE UNITED STATES HOUSE OF REPRESENTATIVES
APPLICATION
To: Chief Justice, the Hon John G. Roberts,
Presiding Officer in the Impeachment Trial
of President Donald J. Trump,
pursuant to Rule XVI.
The House Managers respectfully submit to Chief Justice John G. Roberts, Presiding Officer, the following application for a subpoena commanding the attendance and testimony of John R. Bolton in accordance with the form subpoena attached hereto as an Exhibit. See S. Doc. 99–33 at 6. In support of this application the House Managers state as follows:
1. The Presiding Officer has the Authority to Issue Subpoenas.
The Senate’s Rules governing impeachment trials provide that when a party or counsel proposes a schedule for the trial or other procedures to govern the proceeding, such a request may only be made in accordance with Senate Impeachment Rule XVI which provides:
”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 addressed to the Presiding Officer only, and if he, or any Senator, shall require it, they shall be committed to writing, and read at the Secretary’s table. (Emphasis added).”
Under the Senate’s Impeachment Rules, it is solely the Presiding Officer, Chief Justice Roberts, who has the authority to both consider and determine how the trial will be conducted. He is to do so in accordance with the oath he has taken to ensure impartially that a fair trial is conducted in accordance with the Constitution and laws of the United States. Thus, Rule VII provides in part:
“The Presiding Officer … on the trial shall direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment, and all forms during the trial not otherwise specially provided for. (Emphasis added).”
The Presiding Officer’s authority extends to the issuance of subpoenas. Rule VI authorizes the Senate to issue subpoenas. That authority is necessarily shared with the Presiding Officer under Rule V which states:
”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. (Emphasis added).”
There is no provision for any role for the Majority Leader in these three rules.
To the extent the Senate Impeachment Rules contemplate the ability of the Senate to overturn rulings by the Presiding Officer, such authority has no textual support in the Constitution.
Moreover, the last three sentences of Rule VII, which purportedly empowers the Senate to overturn certain rulings by the Chief Justice, are limited to a narrow category of evidentiary rulings.
Rule VII’s narrow focus does not authorize a procedure for the full Senate to challenge any other determinations or orders by the Presiding Officer on matters other than evidentiary rulings.
2. S. Res. 483 Does Not Amend the Senate’s Standing Rules on Impeachment Trials.
S. Res. 483 was proposed and voted upon while the Senate was sitting as a court of impeachment. Thus, the Senate could only legitimately adopt it under the applicable rules for the Senate sitting as a court of impeachment. Under Rule XVI, the procedural changes proposed in S. Res. 483 should have been “addressed to the Presiding Officer only.”
Rule V gives the Presiding Officer the exclusive authority to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment.” Rule VII ensures that the Presiding Officer has the power “to make and issue, by himself,” “all orders, mandates, writs, and precepts authorized by these rules or by the Senate…”.
Thus, it is abundantly clear that the Majority Leader had no authority, while the Senate was sitting as a court of impeachment, to propose and seek approval of procedural changes to the rules governing an impeachment trial by a vote of the Senate. Such a request could only be directed to and decided by the Presiding Officer.
Any inconsistency between S. Res. 483 and the prevailing rules initially adopted by the Senate in connection with the impeachment trial of President Johnson in 1868 (as amended) must be resolved in favor of the prevailing rules. S. Res. 483 does not alter or amend, nor do they purport to, the existing standing rules of the Senate for impeachment trials as are set forth in S. Doc. 99–33.
To interpret Senate Res. 483 otherwise, would constitute a massive usurpation of authority conferred by the Constitution and current Senate Rules on the Chief Justice serving as the Presiding Officer. The Constitution places the authority to preside over the Impeachment Trial in the hands of the Chief Justice.
The current rules of the Senate governing presidential impeachment trials place the authority to preside in the hands of the Presiding Officer, not the Majority Leader. Because the authority of the Chief Justice acting as the Presiding Officer is established in Article I, Section 3 of the Constitution, partisan interests within the Senate have no constitutional authority to circumscribe his authority. Indeed, the Senate impeachment rules themselves allow no such interference except specifically for rulings on routine evidentiary matters under Rule VII.
The Senate rules confer authority on the Chief Justice as Presiding Officer over compelling witnesses to attend, subpoenas of documents (Rules V and VI) and myriad issues which may arise during an important and potentially complex proceeding like this presidential impeachment trial. The current Senate Impeachment Rules contain no provisions authorizing the full Senate to overrule determinations by the Presiding Officer on these matters.
3. John R. Bolton is a Proper Subject for a Subpoena.
Trial testimony taken to date and the public record amply demonstrate that Mr. Bolton is likely to have personal knowledge of the actions of President Trump in connection with issues raised in the Articles of Impeachment. That he is an appropriate candidate for a subpoena is beyond serious question.
Respectfully Submitted,
/s/__________________
_____
EXHIBIT
Form of a subpoena to be issued on the application of the managers of the impeachment, or of the party impeached, or of his counsel
To — — — — — — , greeting:
You and each of you are hereby commanded to appear before the Senate of the United States, on the — — — day of — — — , at the Senate Chamber in the city of Washington, then and there to testify your knowledge in the cause which is before the Senate in which the House of Representatives have impeached — — — — — — .
Fail not.
Witness — — — — — — , and Presiding Officer of the Senate, at the city of Washington, this — — — day of — — — , in the year of our Lord — — — , and of the Independence of the United States the —
— — .
— — — — — — ,
