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GOP predicts Roberts won't cast tie-breaking vote on witnesses

Republicans are signaling confidence that Chief Justice John Roberts will not insert himself into the middle of the looming fight over witnesses at President TrumpDonald John TrumpFox News president, top anchors advised to quarantine after coronavirus exposure: report Six notable moments from Trump and Biden's '60 Minutes' interviews Biden on attacks on mental fitness: Trump thought '9/11 attack was 7/11 attack' MORE’s impeachment trial. 

GOP senators are cautiously optimistic they will be able to fend off any effort to call new witnesses. But with several of their colleagues still undecided ahead of Friday’s vote, the possibility of a 50-50 tie is seen as the one remaining wildcard in a trial whose outcome is all but certain to end in acquittal.

Roberts, who didn’t respond to a question this week about possibly casting the deciding vote, is facing pressure from Democrats to allow witnesses, after they unsuccessfully attempted to insert a similar provision in the impeachment rules.

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But GOP senators say they do not believe Roberts will, or even should, cast the make-or-break vote on witnesses, arguing it would be a departure from how they view his role, as ceremonial arbitrator, and put the chief justice in the middle of a fierce political fight in an election year. 

Sen. Josh HawleyJoshua (Josh) David HawleyInfrastructure, energy investments urgently needed to create U.S. jobs Justice Department charges Google with illegally maintaining search monopoly Conservatives seize on New York Post story to push Section 230 reform MORE (R-Mo.) acknowledged that he had not spoken to Roberts about the issue, but predicted the chief justice would not put himself at the center of the witness battle.

“I certainly think it’s a very fraught topic,” Hawley said. “I would guess that he would not break a tie.” 

Senate Rules Committee Chairman Roy BluntRoy Dean BluntPower players play chess match on COVID-19 aid GOP to Trump: Focus on policy Low-flying helicopters to measure radiation levels in DC before inauguration MORE (R-Mo.) said a 50-50 vote would mean the push for witnesses failed. 

Asked if he thought Roberts would break the tie, Blunt responded: “He would not.” 

Sen. Mike BraunMichael BraunSenators battle over Supreme Court nominee in rare Saturday session Trump is out of touch with Republican voters on climate change GOP to Trump: Focus on policy MORE (R-Ind.) indicated Roberts shouldn’t break a tie, noting “he would be taking a side there” if he did.

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Meanwhile, Sen. John CornynJohn CornynDallas Morning News poll shows Biden leading Trump in Texas Biden's oil stance jars Democrats in tough races The Hill's Campaign Report: 2020 spending wars | Biden looks to clean up oil comments | Debate ratings are in MORE (R-Texas), an adviser to Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellSenate Democrats hold talkathon to protest Barrett's Supreme Court nomination Trump looms over Ernst's tough reelection fight in Iowa Democratic senator votes against advancing Amy Coney Barrett nomination while wearing RBG mask MORE (R-Ky.), argued there was no specific language that allowed Roberts to vote and break a tie.

“He doesn’t have any role other than to ceremonially preside,” Cornyn said.

Roberts inserted himself into the impeachment trial as senators were debating the trial rules last week. After a heated back-and-forth between House Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerMarijuana stocks see boost after Harris debate comments Jewish lawmakers targeted by anti-Semitic tweets ahead of election: ADL Democrats shoot down talk of expanding Supreme Court MORE (D-N.Y.) and Jay SekulowJay Alan SekulowTrump cannot block grand jury subpoena for his tax returns, court rules Now, we need the election monitors Judge denies Trump's request for a stay on subpoena for tax records MORE, Trump’s personal attorney, Roberts called out both sides for their rhetoric.

“It is appropriate at this point for me to admonish both the House managers and president’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body,” Roberts warned during a middle-of-the-night debate. 

But since then Roberts has largely taken a passive role in the impeachment proceedings, only weighing in on Tuesday to indicate to Trump’s legal team and the House managers that he would like them to keep their responses to five minutes during the two-day question-and-answer session. 

The swirl of speculation around Roberts comes as McConnell scrambles to lock down the 51 votes needed to block new trial witnesses. 

Whether or not Roberts is willing to break a tie has consequences for the Republican whip effort. If Roberts were to signal he would break a tie and side with Democrats to allow witnesses, McConnell would need 51 senators to have an outright majority. That would allow him to lose no more than two Republican senators.

If Roberts did not break a tie, that would allow McConnell to still block witnesses if the vote was 50-50. 

Several GOP senators — including Sens. Susan CollinsSusan Margaret CollinsSenate Democrats hold talkathon to protest Barrett's Supreme Court nomination Trump autographs pumpkin at Maine campaign event: 'It'll be on eBay tonight' Trump makes rare campaign stops in New England in closing stretch MORE (Maine), Lisa MurkowskiLisa Ann MurkowskiGOP clears key hurdle on Barrett's Supreme Court nomination, setting up Monday confirmation Senators battle over Supreme Court nominee in rare Saturday session Murkowski says she will vote to confirm Barrett to Supreme Court on Monday MORE (Alaska), Lamar AlexanderAndrew (Lamar) Lamar AlexanderSenate Health Committee chair asks Cuomo, Newsom to 'stop second guessing' FDA on vaccine efficacy The Hill's Morning Report - Sponsored by Goldman Sachs - Two weeks out, Trump attempts to rally the base McConnell aims for unity amid growing divisions with Trump MORE (Tenn.) and Mitt RomneyWillard (Mitt) Mitt RomneyThe Memo: Five reasons why Trump could upset the odds Will anyone from the left realize why Trump won — again? Ratings drop to 55M for final Trump-Biden debate MORE (Utah) — have not yet revealed their position on an initial vote to allow witnesses. 

Romney has said he wants to hear from former national security adviser John BoltonJohn BoltonObama highlights Biden's tweet from a year ago warning Trump wasn't ready for pandemic Trump's former Homeland Security adviser on COVID-19: 'We could have saved more lives with a different, faster approach' John Kelly called Trump 'the most flawed person' he's ever met: report MORE, while Collins has characterized herself as “very likely” to support calling witnesses. Both have stressed they will make a final decision after senators ask questions on Wednesday and Thursday.

“I have no idea how the votes are going to fall,” Collins told reporters on Wednesday.

If both Collins and Romney vote for witnesses, that would still leave McConnell with 51 GOP votes.

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In normal Senate procedure, a 50-50 tie could be broken by Vice President Pence. But Pence does not have a role in the impeachment trial, kicking the issue over to Roberts.

There were no ties in the 1999 Clinton trial, but Chief Justice Salmon Chase broke two ties during President Andrew Johnson’s impeachment trial in 1868.

Democrats tried but failed to get language in the rules resolution that would allow Roberts to rule on motions for new witnesses or documents.

An amendment offered by Sen. Chris Van HollenChristopher (Chris) Van HollenDemocratic senators unveil bill to ban discrimination in financial services industry Senate Democrats call for ramped up Capitol coronavirus testing Democratic senators offer bill to make payroll tax deferral optional for federal workers MORE (D-Md.) stated: “The Presiding Officer shall rule to authorize the subpoena of any witness or any document that a Senator or a party moves to subpoena if the Presiding Officer determines that the witness or document is likely to have probative evidence relevant to either article of impeachment before the Senate.”

A Senate Democratic aide noted at the time that the resolution was not intended to allow Roberts to break a tie, but instead make a ruling on requests for witnesses or documents. If the Senate disagreed, they could overrule him if they had 51 votes.

The Senate rejected Van Hollen’s amendment in a 53-47 party line vote.

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If Roberts injects himself into the middle of the witness fight, it would hardly be the first time he’s rankled Republicans.

Roberts last year sided with the court’s liberal wing to invalidate the Trump administration’s decision to add a citizenship question to the 2020 census. In 2012, he sparked fierce backlash from conservatives when he sided with Democratic-appointed justices to uphold ObamaCare’s individual mandate.

But Democrats are keeping up the pressure for Roberts to take the reins of what new witnesses or documents are allowed or not allowed.

Senate Minority Leader Charles SchumerChuck SchumerGraham dismisses criticism from Fox Business's Lou Dobbs Lewandowski: Trump 'wants to see every Republican reelected regardless of ... if they break with the president' Democratic Senate emerges as possible hurdle for progressives  MORE (D-N.Y.) knocked Republicans for trying to box out Roberts, saying they were “afraid of any independent analysis.” 

“The Senate rules would allow the Senate to overrule Roberts, but the weight of his ruling would matter,” Schumer added when asked if Roberts should “step in.” 

“And we liked that,” he said. “And we hoped that could happen.”