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A regular point of contention between the dueling sides, continuing on Thursday, is whether Roberts could resolve any White House attempt to block witnesses such as former national security adviser John Bolton.
Democratic senators, aligned with the US House managers, advocated expansive powers for Roberts to intervene and ensure witness testimony. Republican senators, eliciting responses from the Trump legal team, clearly were of a different view. They cast Roberts’ role as limited and not akin to judges in the regular federal court process for tests of presidential privilege.
The black-robed Roberts said nothing beyond reading the questions, never revealing his thoughts or tipping his hand in either direction.
Trump’s defenders have said any conservations with Bolton over the President’s Ukrainian dealings would be barred because they involve Trump’s constitutionally protected interest in confidential conversations with his advisers. But such assertions of “executive privilege” may not be valid.
In past cases brought by presidents, the Supreme Court has balanced competing interests. In the milestone 1974 United States v. Nixon case, the high court unanimously rejected President Richard Nixon’s claim of executive privilege against a subpoena for Oval Office tapes related to the Watergate scandal. The justices said the need for evidence in a pending criminal trial overrode Nixon’s interest in keeping the communications private.
At one point Wednesday, Roberts, reading glasses down on his nose, directed a question to the House managers: “Some have claimed that subpoenaing witnesses or documents would unnecessarily prolong this trial. … [I]sn’t it true that the chief justice as presiding officer in this trial has the authority to resolve any claims of privileges or other issues without any delay?”
Rep. Hakeem Jeffries, a New York Democrat, responded that adding witnesses would not consume many more days and suggested Roberts indeed had the power to decide claims of privilege on the spot. Jeffries later hammered on that point.
“The Senate can get to the truth,” Jeffries said. “You can get to the truth by calling witnesses who can testify. And any privilege issues can be worked out by the chief justice of the Supreme Court.”
Later, lead House manager Rep. Adam Schiff, a California Democrat, made his position clear, echoing the question Roberts presented: “Is the chief justice empowered under the Senate rules to adjudicate questions of witnesses, and privilege and the answer is yes. Can the chief justice make those determinations quickly? The answer is yes.”
Roberts added nothing of his own to the exchanges and was fed questions that fueled the opposite response about the breadth of his authority: “Is it true,” he read from a senator’s card, “that in these proceedings that the chief justice can rule on the issue of production of exhibits and the testimony of witnesses over the objection of either the managers or the president’s counsel? Would a determination by the chief justice be subject to judicial review?”
Deputy White House counsel Patrick Philbin, defending Trump, said Roberts, as he presides over the Senate trial rather than in his usual place on the Supreme Court bench, could not resolve any assertion of executive privilege.
“That’s not going to be something determined … with all respect, sir,” Philbin said, nodding toward Roberts, “by the chief justice. That’s something that would have to be in the courts or by negotiation with the executive branch.”
Jay Sekulow, another Trump lawyer, agreed as he answered a separate question that the President would enforce his rights in court, not before the chief justice in the Senate. “With no disrespect to … the chief justice, that’s not the constitutional design.”
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