A member of President Donald Trump’s legal team dismissed House Democrats’ call for Chief Justice John Roberts to resolve disputes over witnesses in the impeachment trial.
“I think that’s largely wishful thinking by Democrats,” said Robert Ray, a former federal prosecutor who succeeded Ken Starr as the independent counsel investigating President Bill Clinton and is now representing Trump during his impeachment trial.
The Senate faces a pivotal decision next week–whether to vote to allow additional witnesses and documents in the trial before issuing a final verdict that could remove the president from office.
Republican lawmakers have cited concerns that if a majority of senators were to vote to subpoena testimony, particularly from former national security adviser John Bolton, the president would assert executive privilege, triggering a drawn-out court battle.
In his closing remarks of the House managers’ three-day presentation, Rep. Adam Schiff, D-Calif., urged senators to vote for additional witnesses and then allow Roberts to issue a ruling if the president were to claim executive privilege. Schiff said it would be a way to avoid a protracted legal battle in lower courts.
“To the degree that there were a dispute over whether a privilege applied, we have a perfectly good judge sitting behind me, empowered by the rules of this body to resolve those disputes,” Schiff said, as he addressed the Senate chamber Friday night.
But Ray told the NewsHour he disagrees. “He’s not there to be making those rulings,” Ray said of Roberts’ role.
“He is the chief justice presiding over an impeachment trial. That’s not a substitute for what is done in the ordinary course of Article III courts,” he added, referring to courts below the Supreme Court, where an effort by House Democrats to compel testimony from former White House Counsel Don McGahn has stalled.
The rules of the current impeachment trial allow Roberts to rule on questions of evidence, if he chooses. However, senators could also overrule Roberts with a simple majority.
Neal Katyal, former acting solicitor general in the Obama administration, said the chief justice is “absolutely empowered” to decide questions of executive privilege in his current role.
“Comments to the contrary from the president’s legal team just underscore how scared they are to have a real adjudication of the issue,” Katyal said.
The White House, at the direction of Trump, has blocked top aides and documents from House investigators during the impeachment process — and it has no plans to produce those witnesses now.
White House officials argue Schiff’s proposal would endanger presidential powers. They say they’re prepared to argue ruling over matters of executive privilege is not part of Roberts’ role in the impeachment trial.
A senior White House official said Roberts’ ruling would create two standards of executive privilege, one within and one outside the U.S. Senate chamber.
“Adam Schiff is wrong: no ruling from the chief [justice] in an impeachment trial would suddenly make everything hunky-dory. Much the contrary,” the official said.
Roberts’ may not have to make a ruling over witnesses or evidence in the proceedings next week. Democrats still need to convince at least four Republican senators to vote for witnesses in the impeachment trial.