BALLS AND STRIKES? NAHHH.

Josh Marshall reproduces an email from a former assistant U.S. attorney who thinks Democrats have found a way to compel testimony from reluctant witnesses in the impeachment process.

I’m a former federal corruption AUSA and also a former DOJ attorney. Let me tell you why I think the House isn’t going to court over the failure of Bolton, Pompeo, etc. to appear for testimony.

If the House were to go to the District Court, any ruling would eventually be appealed to the Supreme Court. The earliest any decision would come is next spring or early summer.

If the House impeaches the president, the impeachment will be conducted no later than January, and occur under the Senate’s impeachment rules.

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....

I think it is likely that testimony from Mulvaney would be compelled – at least as far as his public statements, and that Bolton and others would be ordered to testify – at least as to some matters. Additional documentary evidence would likely be compelled, as well....

Chief Justice Roberts will make straight rulings on the evidence and the power of the Senate to compel testimony. That’s the best outcome the House can want.

Why does the attorney say this? Because, according to the facts and the rules, Roberts should do this? That strikes me as absurdly naive.

The attorney writes,

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.

Why would it be difficult? The GOP right now is an organized crime family. There are severe penalties for disloyalty -- not death, but certainly political death. A few GOP senators might vote against dismissal of the impeachment before a trial can be held -- but if that happens, given the nature of today's GOP, it will be regarded as an act of tremendous bravery on the part of the dissenters (maybe Romney, Collins, Murkowski, Gardner, and/or a few others). They'll congratulate themselves for it and find it absurd to imagine that a commitment to justice requires them to do even more defiance of White House wishes. So of course they'll vote to overturn any rulings by the chief justice that go against the president's wishes.

Marshall writes,

A majority of the Senate can also overrule [the chief justice's] rulings. But that means owning overruling a Chief Justice strongly identified as a conservative and a Republican.

But as anyone who spends time in Wingnuttia knows, Roberts isn't "strongly identified as a conservative and a Republican" by movement conservatives and MAGA fans. There were right-wing calls to impeach Roberts when he provided the fifth vote to uphold the Affordable Care Act in 2012. There was more impeachment talk on the right when Roberts sided with the Court's liberals and refused to allow a citizenship question in the 2020 census.

Roberts may side with liberals on occasion, but he isn't our friend. He won't endanger Republicans in the Senate by allowing them to lose control of this trial. I think he'll rule for executive privilege down the line. (He can always do a 180 when there's a Democrat in the White House.) And if he does rule against the White House, gang loyalty on the part of Senate Republicans will ensure that he's swiftly overruled.