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Roberts under pressure from both sides in witness fight

Senate Democrats are pressing Chief Justice John Roberts to rule in favor of calling witnesses at President TrumpDonald TrumpRomney blasts end of filibuster, expansion of SCOTUS McConnell, GOP slam Biden's executive order on SCOTUS US raises concerns about Iran's seriousness in nuclear talks MORE's impeachment trial, while Republicans argue it could force his recusal from potential Supreme Court cases. 

Democrats say it's simple: A trial can’t be a fair one without witnesses. Republicans counter that if Roberts rules on witnesses, he will have to recuse himself from any Supreme Court case on Trump's claims of executive privilege over potential witnesses like former national security adviser John BoltonJohn BoltonColin Kahl's nomination will be a disaster for Israel and the region Why is the Biden administration more interested in confrontation than cooperation? Trump offered North Korea's Kim a ride home on Air Force One: report MORE and acting White House chief of staff Mick MulvaneyMick MulvaneyHeadhunters having hard time finding jobs for former Trump officials: report Trump holdovers are denying Social Security benefits to the hardest working Americans Mulvaney calls Trump's comments on Capitol riot 'manifestly false' MORE.

“I don’t know how you have a serious trial unless you hear from witnesses who know in fact what the facts are, what happened,” said Sen. Bernie SandersBernie SandersHillicon Valley: Amazon wins union election — says 'our employees made the choice' On The Money: Biden .5T budget proposes major hike in social programs | GOP bashes border, policing provisions Overnight Defense: Biden proposes 3B defense budget | Criticism comes in from left and right | Pentagon moves toward new screening for extremists MORE (I-Vt.), a leading candidate for the Democratic presidential nomination.

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“I think it would be appropriate for the chief justice to do what I think should be done, and that is to allow witnesses to testify,” he added.

While Roberts is expected to refer major disputes over trial procedures to the entire Senate for a vote, some Democrats hope he will make his own rulings on what they say are basic questions of fair jurisprudence.

Democrats argue that holding a trial but blocking the consideration of relevant witness testimony and document review would fall well short of what’s considered a fair trial in any court of law. 

“We’ve been working to get an agreement with Republicans about the relevant witnesses for the trial and relevant documents and we’re continuing that effort,” said Sen. Chris Van HollenChristopher (Chris) Van HollenLawmakers struggle with Capitol security after latest attack Democrats torn on Biden's bipartisan pledge Democrats wrestle over tax hikes for infrastructure MORE (D-Md.). “Those types of questions will have to be considered as the trial proceeds.” 

Senators who want Roberts to intervene have pointed to the precedent set by then-Chief Justice Salmon P. Chase in the 1868 impeachment trial of President Andrew Johnson.

Chase broke two ties on procedural deadlocks, both votes on motions to adjourn.

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The Senate voted 27 to 21 to defeat an amendment proposed by Sen. Charles Sumner (R-Mass.) stating the chief justice had no authority to vote to break ties.

Senate Democratic Leader Charles SchumerChuck SchumerThe first Southern state legalizes marijuana — what it means nationally H.R. 1/S. 1: Democrats defend their majorities, not honest elections McCarthy asks FBI, CIA for briefing after two men on terror watchlist stopped at border MORE (D-N.Y.) has focused his demands on four witnesses: Bolton, Mulvaney, senior White House adviser Robert Blair, and senior Office of Management and Budget official Michael Duffey.

Republicans are pushing back, arguing Trump is expected to assert executive privilege to block the four witnesses Democrats have requested.

“The chief justice is supposed to preside, not make decisions for the Senate,” said a senior Senate GOP aide. 

“It would be a conundrum for the chief justice,” the aide added. “Let’s say [Roberts] says, ‘I’m going to break the tie,’ and John Bolton has to testify. Wouldn’t he have to recuse himself when the Supreme Court gets the question as to whether executive privilege applies?”

The aide said it “would be an unprecedented interference of the third branch into the first branch.”

A second senior Senate Republican aide said “the chief justice doesn’t vote,” adding that “you need 51 votes” to decide trial procedures.

Sen. Lisa MurkowskiLisa Ann MurkowskiTop GOP super PAC endorses Murkowski amid primary threat Biden-GOP infrastructure talks off to rocky start Moderate GOP senators and Biden clash at start of infrastructure debate MORE (R-Alaska) told The Hill she has received briefing materials from former senators who participated in the 1999 Clinton trial arguing Roberts should not be able to break a tie. 

So far, she is still thinking about what his role should be. 

“It’s my understanding that if it’s a tie, it fails,” she said, summarizing the briefing paper. 

The chief justice is expected to do everything possible to avoid politicizing his or her role through partisan rulings, but Roberts could also come under harsh criticism from Democrats if he takes no action and allows Republicans to proceed with their preferred format, which does not include witnesses.

When Roberts swore in senators at the start of the trial on Thursday, he asked them to “do impartial justice according to the Constitution and laws.”

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“Every Senate impeachment trial in our history, all 15 that were brought to completion, featured witnesses. Every single one,” Schumer said Thursday. “The precedent in impeachment trials in the Senate is to have witnesses. To have no witnesses would be a dramatic break with precedent.” 

Schumer is also seeking to subpoena three sets of documents. He wants memos and emails related to efforts to pressure Ukraine to announce certain political investigations; documents related to the decision at the White House to withhold a meeting with the newly elected Ukrainian president; and communication touching the decision to withhold $391 million in military assistance to Ukraine. 

So far, two Republican senators have said they will likely vote to call additional witnesses.

Sen. Mitt RomneyWillard (Mitt) Mitt RomneyRomney blasts end of filibuster, expansion of SCOTUS On management of Utah public lands, Biden should pursue an accountable legislative process Biden-GOP infrastructure talks off to rocky start MORE (R-Utah) told reporters, “I presume I’ll be voting in favor of hearing from John Bolton, perhaps among others.”

Sen. Susan CollinsSusan Margaret CollinsThe Hill's Morning Report - Biden assails 'epidemic' of gun violence amid SC, Texas shootings Biden-GOP infrastructure talks off to rocky start Moderate GOP senators and Biden clash at start of infrastructure debate MORE (R-Maine) issued a statement Thursday saying “it is likely that I would support a motion to call witnesses” after both sides present opening arguments.

A third Republican, Murkowski, said she is “curious” to hear what Bolton has to say but won’t reveal how she’ll vote on witness subpoenas.

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Finding a fourth GOP senator to vote for subpoenas would be a tougher task, raising the prospect of a Senate deadlock.

Republicans hold a 53-47 majority in the chamber.

Sen. Dianne FeinsteinDianne Emiel FeinsteinCaitlyn Jenner exploring bid for California governor: report WokeWorld comes for 'oppressor' Obama: Activists rip school being named after 'deporter in chief' Senators press for answers in Space Command move decision MORE (Calif.), the top-ranking Democrat on the Judiciary Committee, said Roberts should break a 50-50 tie on a major procedural question, such as whether to subpoena Bolton or Mulvaney.

“It seems to me it should,” she said. “Tie vote is essentially a no on whatever the issue is. I’m not sure in this kind of situation that the body wants to sustain immobility, that you can’t move out of it. So something ought to break a tie.”

But Sen. Richard ShelbyRichard Craig ShelbyFive takeaways from Biden's first budget proposal Overnight Defense: Biden proposes 3B defense budget | Criticism comes in from left and right | Pentagon moves toward new screening for extremists Biden defense budget criticized by Republicans, progressives alike MORE (R-Ala.) said it would be odd for the chief justice to decide procedural questions that have become very politicized in recent weeks. 

“This is a Senate procedure,” he said. “In a committee, if you have a tie vote you don’t prevail. And that’s what would happen here, I would think.”

 

Correction: This article was updated Jan. 23 to reflect that Chief Justice Salmon P. Chase voted on two motions to adjourn the Senate. An amendment to prevent the chief justice from voting was soundly defeated without Chase’s participation.