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 TrumpTrump PACs brought in over M for the first half of 2021 Chicago owes Trump M tax refund, state's attorney mounts legal challenge Biden hits resistance from unions on vaccine requirement 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 HawleyBiden's bipartisan deal faces Senate gauntlet 228 Republican lawmakers urge Supreme Court to overrule Roe v. Wade Trio of Senate Republicans urges Supreme Court to overrule Roe v. Wade 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 BluntBiden's bipartisan deal faces Senate gauntlet The Hill's Morning Report - Presented by Facebook - Biden sets new vaccine mandate as COVID-19 cases surge Former Missouri Gov. Jay Nixon passes on Senate campaign 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 BraunBiden's bipartisan deal faces Senate gauntlet CDC backtracks with new mask guidance GOP senators invite Yellen to brief them on debt ceiling expiration, inflation 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 CornynBiden's bipartisan deal faces Senate gauntlet Senate votes to take up infrastructure deal Biden officials pledge to confront cybersecurity challenges head-on MORE (R-Texas), an adviser to Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden's bipartisan deal faces Senate gauntlet The Hill's Morning Report - Presented by Facebook - Biden sets new vaccine mandate as COVID-19 cases surge Democrats warn shrinking Biden's spending plan could backfire 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 NadlerBiden backs effort to include immigration in budget package Biden to meet with 11 Democratic lawmakers on DACA: report Britney Spears's new attorney files motion to remove her dad as conservator MORE (D-N.Y.) and Jay SekulowJay Alan SekulowThe Hill's Morning Report - Presented by TikTok - New video of riot unnerves many senators Trump legal switch hints at larger problems Trump, House GOP relationship suddenly deteriorates 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 CollinsSunday shows preview: Delta concerns prompt CDC mask update; bipartisan infrastructure bill to face challenges in Senate Top Democrat: 'A lot of spin' coming from White House on infrastructure Bill would honor Ginsburg, O'Connor with statues at Capitol MORE (Maine), Lisa MurkowskiLisa Ann MurkowskiBill would honor Ginsburg, O'Connor with statues at Capitol The Hill's 12:30 Report - Presented by Facebook - US gymnast wins all-around gold as Simone Biles cheers from the stands The Hill's Morning Report - Presented by Facebook - A huge win for Biden, centrist senators MORE (Alaska), Lamar AlexanderLamar AlexanderAuthorities link ex-Tennessee governor to killing of Jimmy Hoffa associate The Republicans' deep dive into nativism Senate GOP faces retirement brain drain MORE (Tenn.) and Mitt RomneyWillard (Mitt) Mitt RomneyThe Hill's 12:30 Report - Presented by Facebook - US gymnast wins all-around gold as Simone Biles cheers from the stands The Hill's Morning Report - Presented by Facebook - A huge win for Biden, centrist senators The 17 Republicans who voted to advance the Senate infrastructure bill 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 BoltonWant to evaluate Donald Trump's judgment? Listen to Donald Trump Will Pence primary Trump — and win? Bolton: Trump lacked enough 'advance thinking' for a coup 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 HollenSenate Democrats press administration on human rights abuses in Philippines Civil rights activist Gloria Richardson dies Senate Democrats hit speedbumps with big spending plans 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 SchumerSenate infrastructure talks spill over into rare Sunday session Senate holds sleepy Saturday session as negotiators finalize infrastructure deal An August ultimatum: No recess until redistricting reform is done 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.”