As the Senate prepares to begin the President Trump's impeachment trial on Tuesday, Chief Justice John Roberts faces pressure from both sides over the issue of witnesses.
Roberts, who was officially sworn in for his role on Thursday, has offered no clues as to how he will approach the situation - which is particularly relevant in the event of a tie-breaking vote. Of note, some Republicans have argued that Roberts should not be able to break a tie on this issue.
Sen. Lisa Murkowski (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.
Sen. Richard Shelby (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.” -The Hill
Sen. Dianne Feinstein (D-CA) argued that Roberts should be able to break a 50-50 tie on a major procedural question, such as key witnesses.
"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."
Democrats have argued that a trial wouldn't be fair without witnesses - just not Hunter or Joe Biden, or Rudy Giuliani, or former Ukrainian prosecutors, or anyone else at the heart of Ukrainegate.
Republicans have suggested that if Roberts rules on witnesses, he will be required to recuse himself from any Supreme Court decisions related to Trump invoking executive privilege over potential witnesses John Bolton and acting White House chief of staff Mick Mulvaney - who oversaw a pause in US aid to Ukraine as the head of the Office of Management and Budget (OMB).
"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 Sanders (I-VT), adding "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."
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 Hollen (D-Md.). “Those types of questions will have to be considered as the trial proceeds.” -The Hill
Senate Minority Leader Chuck Schumer (D-NY) has demanded four witnesses; Bolton, Mulvaney, senior WH adviser Robert Blair, and senior OMB official Michael Duffey.
"Every Senate impeachment trial in our history, all 15 that were brought to completion, featured witnesses. Every single one," said Schumer on 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. -The Hill
Republicans expect Trump to invoke executive privilege to block the four witnesses - which is where it may get sticky for Roberts.
"The chief justice is supposed to preside, not make decisions for the Senate," said a senior Senate GOP aide, via The Hill.
"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?"
According to the aide, it "would be an unprecedented interference [of] the third branch into the first branch."
Meanwhile, two Republican Senators have indicated that they will likely vote in favor of calling witnesses; Mitt Romney of Utah and Susan Collins of Maine.
Murkowski said she's "curious" to hear what Bolton has to say but has offered no clue on how she'll vote.