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The winning vote of the 13 senators to respect the Supreme Court's Temporary Restraining Order, against a senate subpoena to reveal any information or for that matter open confidential bank accounts to public scrutiny, was as fine a piece of political and judicial statesmanship as history can show. I credit Juan Ponce Enrile for it. One only wishes the senators who voted against had spared us their self-confessed simplistic views.
Enrile read out the vote that the Senate would respect the TRO. But he prefaced it with a strong insistence. The senate is in no way waiving or softening its claim to be the exclusive authority governing all aspects of an impeachment trial. Indeed there is a petition for certiorari pending before the high court, questioning the legal propriety of the current impeachment that was signed sight unseen in the house and prepared, it now appears, without any evidence at hand despite the role of the House being that of a Grand Jury to establish probable cause for an impeachment. It was the intention of the House to trawl for the evidence when the impeachment was at sea. A clear violation of due process that taints the House but in no way yet - except for the prosecutorial role adopted by a couple of senators - staining the Senate.
Enrile said the Senate would fight tooth and nail to establish the Senate's supreme exclusivity in all matters relating to the trial of impeachments but it would do so before the Supreme Court. Not before itself. Self-assertions like talking to oneself are symptoms of insanity.
Now this may sound like surrender. It concedes that the Court must be respected, even as it asserts a claim it hopes the Court will recognize.
The senate claim is supremacy but the final say on that lies with the Court and not with the Senate itself. Mark the distinction.
This is not concession. This is a necessity imposed by the situation.
Only a fool would deny the judicial supremacy of the Supreme Court. The Constitution clearly says the judicial power, the power to decide what is law or not law, lies in one, and only one, Supreme Court.
But only a fool would stop with that. If the Senate impeachment court - of which the Constitutions makes no mention, merely that the Senate shall be the exclusive venue to try impeachments - indeed, if the Senate believed it needed to go farther than the Court was inclined to let it, then it should press its claim. But it should press it with the Court.
In so doing the Senate would not be surrendering a particle of its claim but merely acknowledging that the final wisdom on the extent of that claim lies with the body exclusively vested by the Constitution to decide it - the Supreme Court.
The Court, in turn, could rule, as it did in Marbury, that it was so supreme in all matters of law that even Congress could not give it more authority than the constitution allowed. The court could rule against its own authority. But no other body could do that for the Court.
It could rule, as supreme arbiter, that the Senate had exclusive authority over one, or a few, or even most but never all aspects of the trial of an impeachment; particularly where it trenched on the fundamental rights of the accused.
On top of all that, the Senate vote to respect the TRO rendered the latter moot for there is now nothing to restrain, no senate subpoena to stop. A perfect balance is achieved. This is genius. Thank you, Senator Enrile, and a Happy Birthday.
