UPDATE BELOW: I’ve decided to not delete the diary because I think the issue is important even if legal practitioners disagree on the law and standing rules.
UPDATE #2: Looks like one of my heroes, Glenn Kirschner, has read the same article cited in the diary and has this to say:
UPDATE #3: Rep. Van Hollen is now trying to get an amendment passed that would give the Chief Justice the power to call witnesses, perhaps drawing from the Time article:
www.washingtonpost.com/...
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If the impeachment trial continues down this same trajectory, the Constitutional power to “preside” over the impeachment trial has been illegally transferred from the Chief Justice to Senate Maj. Leader Mitch McConnell. As stated in the Constitution, Chief Justice John Roberts is given the sole power to preside over the trial, which means he is the one who decides whether or not witnesses are called, evidence is presented, and so on.
But the Founders chose not to provide many details regarding the impeachment process. All they told us in Article I was that (i) the House “shall have the sole power of Impeachment,” and the Senate “the sole power to try all Impeachments,” (ii) “When the President of the United States is tried, the Chief Justice shall preside” and (iii) it takes a two-thirds vote to convict, and the punishment is limited to removal from office.
An excellent article that explains this unprecedented move by McConnell:
John Roberts Has More Power Than Mitch McConnell Would Like You to Think. But Will He Use It?
….But wait a minute. While McConnell is not mentioned in the Constitution, Chief Justice John Roberts is. Indeed, it is the Chief Justice of the United States who shall “preside” over the trial, not the Majority Leader. So why isn’t it up to Roberts to decide whether witnesses shall appear?
Absent anything in the Constitution to the contrary, it seems obvious that the witness dispute should be resolved by the ruling of the constitutionally appointed “Presiding Officer” of the trial. This is especially true if we were to abide by the conservative element of our judiciary that insists on the strict construction of the words of any constitutional or statutory provision.
Why isn’t “let presiding officer decide” the guiding principle here? Because the Senate, without a shred of constitutional authority, has adopted a set of rules that would effectively strip the presiding officer of much of his power to “preside” over the trial.
Are those Senate rules constitutional? I keep a pocket copy of the Constitution in my backpack. I have reread it a dozen times. I see nothing in there giving McConnell, or a majority herd of senatorial sheep, the power to limit the Chief Justice’s constitutional power — and duty — to “preside” over this trial.
Is there a remedy for this illicit power grab? Yes. The remedy is for the Chief Justice of the United States to exercise his sworn duty and “preside” over the trial unencumbered by unconstitutional Senate rules. If he deems it relevant to call witnesses, he has the power and the duty to do so, whatever McConnell thinks.
The Constitution says the Chief Justice presides over the trial. I’m guessing Roberts, McConnell, and the GOP is relying on average Americans’ lack of Constitutional knowledge to get away with this unprecedented delegation of power, resulting in a sham trial. If Chief Justice Roberts allows this to happen, he should be impeached.
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Update:
Many thanks to Kokopelli2018 for this link that adds more context and relevant analysis: www.scotusblog.com/…
The Senate’s standing rules for impeachment trials make no distinction between the powers of the chief justice presiding in an impeachment and those of any other officer in the same role. The job is referred to throughout as “Presiding Officer” and its authority is the same regardless of who holds it. The rules nominally give the presiding officer considerable power, including the power to issue “orders, mandates, writs, and precepts” (Rule V), to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying and impeachment” (Rule VII), and to “rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence” (Rule VII). But in every case, this apparent authority is subject to the critical limitation that the presiding officer may only act in accordance with the will of the Senate.
For example, if the presiding officer makes a ruling on the relevance of evidence proffered by either the House managers or counsel for the president, that ruling can be questioned by any senator and overruled by a simple majority vote (Rule VII). Unlike in an ordinary trial, there is no higher court to which such a senatorial judgment can be appealed. The Senate itself is the final authority on every procedural or evidentiary question.
The essential impotence of the presiding officer is exacerbated by the fact that the Senate impeachment rules are very general and contain no provisions similar to the Federal Rules of Evidence regulating the admission or exclusion of witnesses, exhibits or particular testimony. If such rules existed, the presiding officer could base his or her rulings on their text, which would make votes to overturn such rulings at least politically or psychologically difficult so long as the presiding officer’s interpretation of the rules seemed logically sound. But as matters stand, every question ultimately rests in the unguided, and inevitably politically driven, discretion of a majority of senators.