House impeachment strategy re: going to court

[DeminPennswoods]

Josh Marshall over at TPM posted a terrific letter from a former AUSA on why Dems aren't going to court to force testimony before the House. It's a great read and something that hasn't been mentioned.

Link: https://talkingpointsmemo.com/edblog/read-this-11

The (Senate) 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.

and

Thus, by moving directly to impeachment, the House gets its best chance of winning the testimony of Bolton, Mulvaney, and others, and doing so in a timely fashion. The House likely won’t be able to depose witnesses or examine all the documents in advance, but that’s a small price to pay for obtaining the evidence at the trial.

In addition, a favorable decision can’t be hung up in the courts. The decision of the Senate on procedural rulings, whether by the Presiding Officer or if reviewed, by the full Senate, is final, and not subject to court review. See Nixon v. United States (involving the impeachment of Judge Nixon, not Richard Nixon).

[Raven123]

1. Thanks for posting. Been wondering about that issue

[Karadeniz]

2. Good to know...thanks!

[maxsolomon]

3. Put Roberts in a Public Box.

Will he actually preside, or allow the weasels in the majority to suppress evidence?

[leftieNanner]

4. I began to ask a question

And then realized I better read the article first. It didn't answer my question, so here goes.

How much input will the Dems have on the witnesses called? Can Moscow Mitch (I love that my phone immediately offers 'Mitch' after I type 'Moscow'!) hold a fake trial without allowing any witnesses of substance?

Thanks DU!

[gristy]

5. This is all what may happen in the Senate

But I believe next up is the House Judiciary Committee, which may choose to find other rocks to turn over and witnesses to call.

[Hermit-The-Prog]

6. yeah, the House ain't done until they decide to be

The House has the sole power of impeachment.

Shout out: Get over it, Dumbass Donald TrumPutin.

[onenote]

7. Flaw in the reasoning: it assumes the CJ wouldn't simply refer the issue to the full Senate

in the first instance.

Since the questions ultimately are left in the hands of the Senate, there's no reason for the CJ to decide a question that he believes will be contested.

[FBaggins]

8. Or that they wouldn't take it from him

Even if he doesn’t refer it to them, a single senator can object to the ruling and then the majority can rule however it likes.

[Jersey Devil]

9. This also explains why the Senate was talking about dismissal before trial on motion

They don't want to risk any ruling by the Ch Justice that would force witnesses or documents now being obstructed to appear.

[DeminPennswoods]

10. Update with comments from Schiff

Link: https://talkingpointsmemo.com/edblog/adam-schiff-seems-to-agree