In a panel discussion with CNN, Ryan Goodman said that there's no legal basis for this claim.
"In fact, the Senate can decide the matter and it wouldn't be litigated," Goodman explained. "If the Senate decided to issue the subpoenas and the Chief Justice, in fact, sent those subpoenas, it would be the final word. There's a Supreme Court case about this, Nixon v. United States, Judge Nixon, which said the Senate sets the rules and the courts review it. So, it's not like it will be litigated in a way. They are the final word."
He went on to say that the Chief Justice of the Supreme Court assigns the subpoenas, which is an enormous call to comply.
"There are multiple ways in which it doesn't even get to the situation of executive privilege being invoked because the senate is so powerful in that moment," he went on.
For those looking for senators to pressure for witnesses, Sens. Lisa Murkowski (R-AK), Susan Collins (R-ME), Mitt Romney (R-UT) and Lamar Alexander (R-TN) are the four senators who are seen as being possible swing votes to get them.
“As I said last week, while I need to hear the case argued and the questions answered, I anticipate that I would conclude that having additional information would be helpful. It is likely that I would support a motion to subpoena witnesses at that point in the trial, just as I did in 1999," Collins said.
“I’ve said I’d like to hear from John Bolton. I expect that, barring some kind of surprise, I’ll be voting in favor of hearing from witnesses after those opening arguments," Romney claimed.
Murkowski told reporters in Anchorage on Jan. 18 that she would "at the trial's start" vote to table the witnesses until after the opening statements. That's not her final word on witnesses, however.
Alexander is retiring after his term ends this year, but when interviewed about witnesses, he said "maybe" and "maybe not." He's the least likely among the four to oppose McConnell, but if he voted for witnesses, others would follow.
Seven in ten Americans want to see witnesses, according to recent polls. McConnell has been unfazed by that fact.
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