Slade3200
Diamond Member
- Jan 13, 2016
- 66,361
- 16,798
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you should stick to arguing gun rights as law does not seem to be your strong suit. Unlike in the house the senate determines the allowance of witnesses and issues surrounding privilege claims or challenges to subpoenas. It is a majority vote situation.
Here read this....
Testimony and Executive Privilege in the Senate Impeachment Trial
An initial question here, however, is whether the witnesses other than Bolton would even appear. The White House, supported by the Office of Legal Counsel (OLC), relied on various constitutional arguments to direct all four of the relevant witnesses not to appear in the House. Bolton has now indicated he will nonetheless comply with a Senate subpoena. And Duffey would almost certainly have to appear. In the House inquiry, he refused to comply with a subpoena for a deposition solely because agency counsel would not be allowed to attend, and the House did not subpoena him to appear for public testimony at which he could have been accompanied by agency counsel. Assuming the Senate subpoenaed him for public testimony or, if it conducted a deposition, allowed government counsel to attend, Duffey would no longer have any basis for refusing to appear.
But the White House could again direct Mulvaney and Blair not to appear at all on the basis of testimonial immunity. Unlike the litigation that would likely have been required to force their testimony in the House inquiry, however, the Senate itself could vote on the validity of that immunity claim. As congressional experts have explained, Chief Justice John Roberts, presiding over the trial, would probably not be the one to decide their immunity or any privilege claim; ultimately, 51 senators are likely necessary to require the testimony. (The question of what happens in the event of a tie is more complicated, but in general, a 50-50 tie means a motion fails—though Roberts could potentially vote to break a tie in some circumstances.) As NPR’s Nina Totenberg put it, “under Senate rules, it is the senators themselves who have the first and last word.”
Accordingly, unlike the procedures that would have applied in the House, in the Senate the judge of the claim would be the full chamber. And a vote overruling any immunity or privilege claim would, by necessity, be a bipartisan one. Democrats would need three Republican senators to force a tie and four for a 51-vote majority. In the House, the Democratic chairman alone ruled on whether to recognize the claimed privilege or immunity. If Mulvaney and Blair were both confronted with a bipartisan Senate ruling that they must appear in the impeachment inquiry, they may be less willing to refuse to comply than they were in the House. That would be particularly true if the same Senate majority subsequently scheduled a vote to hold Mulvaney and Blair in contempt for their refusal to appear. In addition, if the U.S. Court of Appeals for the D.C. Circuit were to issue a decision rejecting McGahn’s immunity claim, on which it recently heard oral arguments, that opinion could provide further impetus for Mulvaney and Blair to abide by the Senate subpoena rather than the White House’s direction.
