Tuesday, December 31, 2019


Or go blind?
Let me reiterate:  questions like this go to Chief Justice John Roberts first.

While a majority of the Senate could vote to overturn the Chief Justice’s ruling, any evidentiary/privilege ruling by him would have a presumption that it was correct. As a political matter, it would be difficult for many Republican senators to vote to overturn an evidentiary ruling by the Chief that is based on the law. (That is different than a motion to dismiss because the evidence is insufficient, where it is the senators’ role to evaluate the weight of the evidence.) Only a handful of Republican senators would have to vote to uphold the Chief Justice’s ruling for a majority to sustain the ruling that testimony or documents should be compelled.
The difference with a Motion to Dismiss is that it has to be made AFTER the evidence is presented, not before.  So the case can't be "disbursed without the necessity of a trial" (He means dismissed.  A good lawyer Blakeman is not.)  If the evidence is insufficient, it has to be presented first in order to be determined to be insufficient.  That leads us back to the other role Roberts will play as Presiding Officer.

The rules provide that the House managers can issue subpoenas to anyone, presumably including Bolton and Mulvaney. A senator could object that the testimony is irrelevant or covered by privilege. Rule VII provides that a ruling on such questions will usually be made by the Presiding Officer – the Chief Justice, unless he refers the decision to the full Senate. The Chief Justice would likely decide, in the first instance, claims of executive privilege or attorney-client privilege. He would also likely decide questions such as the crime/fraud exception and the co-conspirator exception to the hearsay rule, as well as questions of waiver of any privilege. Finally, he would rule on subpoenas for the production of documents. 
Trump is going to get his trial whether he wants it or not.

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