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“No reporter in Washington knows or understands this.” — Senator Ted Cruz, Verdict with Ted Cruz, Episode 2
In the midst of impassioned posts, swirling social media content, and the never-ending news cycle, Sen. Ted Cruz brought a bit of real insight the other evening. He did so in a new podcast that is burning up the charts. In Episode 2, Sen. Cruz explained that the Senate has the power, in plainly written federal law, to unilaterally grant a witness “transactional immunity,” thereby removing the ability of the witness to refuse to testify on the constitutional basis of the Fifth Amendment right not to incriminate yourself. In plain English, the deal is: “talk, tell us the whole truth, and nothing you say may be used against you by anyone in any criminal procedure, ever.”
Watch Episode 2, from 19:40 to 22:28:
Sen. Cruz has the new number one podcast on iTunes after its launch last week. It surged past the New York Times and even Joe Rogan! The episodes are also available on YouTube, with a Verdict with Ted Cruz channel. It is doing so, in part, because you get good content, not just noise that contents your feelings.
How good is the content? Just look at the law for yourself. The Congress maintains the official United States Code, the compilation of all of federal laws now in effect. You will find it at the obviously named “uscode.congress.gov.” It is very well organized and searchable. Title 18 is “Crimes and Criminal Procedure.” Part V of Title 18 is “Immunity of Witnesses,” of which Section 6005 is “Congressional proceedings.” So, that would be referred in shorthand as 18 U.S. Code § 6005.
Before we get to reading Section 6005, we should check some definitions. No, not definitions in a dictionary, definitions inside the US Code itself, functioning like rules for a game or bits of code in a computer program. Look at 18 U.S. Code § 6001:
As used in this chapter-
(1) “agency of the United States” means any executive department as defined in section 101 of title 5, United States Code, a military department as defined in section 102 of title 5, United States Code, the Nuclear Regulatory Commission, the Board of Governors of the Federal Reserve System, the China Trade Act registrar appointed under 53 Stat. 1432 (15 U.S.C. sec. 143), the Commodity Futures Trading Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Maritime Commission, the Federal Power Commission, the Federal Trade Commission, the Surface Transportation Board, the National Labor Relations Board, the National Transportation Safety Board, the Railroad Retirement Board, an arbitration board established under 48 Stat. 1193 (45 U.S.C. sec. 157), the Securities and Exchange Commission, or a board established under 49 Stat. 31 (15 U.S.C. sec. 715d);
(2) “other information” includes any book, paper, document, record, recording, or other material;
(3) “proceeding before an agency of the United States” means any proceeding before such an agency with respect to which it is authorized to issue subpenas and to take testimony or receive other information from witnesses under oath; and
(4) “court of the United States” means any of the following courts: the Supreme Court of the United States, a United States court of appeals, a United States district court established under chapter 5, title 28, United States Code, a United States bankruptcy court established under chapter 6, title 28, United States Code, the District of Columbia Court of Appeals, the Superior Court of the District of Columbia, the District Court of Guam, the District Court of the Virgin Islands, the United States Court of Federal Claims, the Tax Court of the United States, the Court of International Trade, and the Court of Appeals for the Armed Forces.
With that secret decoder ring, let us turn to the relevant sections affecting Hunter Biden. First, we get the basic rule for federal witness immunity in Section 6002 [emphasis added]:
§6002. Immunity generally
Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to-
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.
Here, Hunter Biden will presumably refuse to testify or given information to the Senate on the basis of his Fifth Amendment rights. The Senate, by a vote of 51 senators, can then give him immunity, which would be communicated by Chief Justice Roberts (presiding over the proceeding) to Hunter Biden in the form of a court order, with the detailed process laid out in Section 6005. The effect would be a get-out-of-jail-free card for whatever beans he spilled to the Senate. More on that in a moment; first here is the rest of the law affecting this Senate proceeding [emphasis added]:
§6005. Congressional proceedings
(a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to either House of Congress, or any committee, or any subcommittee of either House, or any joint committee of the two Houses, a United States district court shall issue, in accordance with subsection (b) of this section, upon the request of a duly authorized representative of the House of Congress or the committee concerned, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this title.
(b) Before issuing an order under subsection (a) of this section, a United States district court shall find that-
(1) in the case of a proceeding before or ancillary to either House of Congress, the request for such an order has been approved by an affirmative vote of a majority of the Members present of that House;
(2) in the case of a proceeding before or ancillary to a committee or a subcommittee of either House of Congress or a joint committee of both Houses, the request for such an order has been approved by an affirmative vote of two-thirds of the members of the full committee; and
(3) ten days or more prior to the day on which the request for such an order was made, the Attorney General was served with notice of an intention to request the order.
(c) Upon application of the Attorney General, the United States district court shall defer the issuance of any order under subsection (a) of this section for such period, not longer than twenty days from the date of the request for such order, as the Attorney General may specify.
So, a plain reading of the law suggests that the Senate needs to serve Attorney General Barr with notice of intent to request orders (which must by default be granted) to compel testimony by specific witnesses. They should do so the moment they have voted on specific witnesses, so as to get the clock running. On day 10 after notifying Barr, the Senate lawyers should drop the (likely pair of) requests for orders to compel the witness(es) testimony.
There is no need to play delay games, letting the witnesses fiddle around before refusing to testify. Section 6005 (a) allows the Senate to forestall that gambit as it may crank up this process for “… any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to either House of Congress.”
On the current rule for this Senate impeachment trial, S.Res.483*, it looks like we will get to the vote about witnesses on Friday, January 31. Assuming 51 senators vote for witnesses, and then vote for the first two witnesses, those two names need to be immediately sent to Attorney General Barr, as there will be no court order issued until February 10, unless the Attorney General can and does agree to waive some portion of his notice time. Assume an order was applied for, the judge is going to be extremely quick, likely same-day service, since it is the Chief Justice sending the “request,” which is really an order to produce a court order.
Ah, but then the Senate does not want a bunch of garbage being unloaded by witnesses, so they will have them deposed before taking a further vote to admit their testimony. So, without any further fights over other serious issues like executive privilege, we are looking at mid-February, at the most optimistic, if 51 senators put up their hands for any witnesses to be called.
IN THE SENATE OF THE UNITED STATES
January 22, 2020
Mr. McConnell submitted the following resolution
January 22 (legislative day, January 21), 2020
Considered and agreed to
To provide for related procedures concerning the articles of impeachment against Donald John Trump, President of the United States.
Resolved, That the House of Representatives shall file its record with the Secretary of the Senate, which will consist of those publicly available materials that have been submitted to or produced by the House Judiciary Committee, including transcripts of public hearings or mark-ups and any materials printed by the House of Representatives or the House Judiciary Committee pursuant to House Resolution 660. Materials in this record will be admitted into evidence subject to any hearsay, evidentiary, or other objections that the President may make after opening presentations are concluded. All materials filed pursuant to this paragraph shall be printed and made available to all parties.
The President and the House of Representatives shall have until 9:00 a.m. on Wednesday, January 22, 2020, to file any motions permitted under the rules of impeachment with the exception of motions to subpoena witnesses or documents or any other evidentiary motions. Responses to any such motions shall be filed no later than 11:00 a.m. on Wednesday, January 22, 2020. All materials filed pursuant to this paragraph shall be filed with the Secretary and be printed and made available to all parties.
Arguments on such motions shall begin at 1:00 p.m. on Wednesday, January 22, 2020, and each side may determine the number of persons to make its presentation, following which the Senate shall deliberate, if so ordered under the impeachment rules, and vote on any such motions.
Following the disposition of such motions, or if no motions are made, then the House of Representatives shall make its presentation in support of the articles of impeachment for a period of time not to exceed 24 hours, over up to 3 session days. [22-24 JAN] Following the House of Representatives’ presentation, the President shall make his presentation for a period not to exceed 24 hours, over up to 3 session days. [25, 27-28 JAN] Each side may determine the number of persons to make its presentation.
Upon the conclusion of the President’s presentation, Senators may question the parties for a period of time not to exceed 16 hours. [29-30 JAN]
Upon the conclusion of questioning by the Senate, there shall be 4 hours of argument by the parties, equally divided, followed by deliberation by the Senate, if so ordered under the impeachment rules, on the question of whether it shall be in order to consider and debate under the impeachment rules any motion to subpoena witnesses or documents. The Senate, without any intervening action, motion, or amendment, shall then decide by the yeas and nays whether it shall be in order to consider and debate under the impeachment rules any motion to subpoena witnesses or documents. [31 JAN]
Following the disposition of that question, other motions provided under the impeachment rules shall be in order.
If the Senate agrees to allow either the House of Representatives or the President to subpoena witnesses, the witnesses shall first be deposed and the Senate shall decide after deposition which witnesses shall testify, pursuant to the impeachment rules. No testimony shall be admissible in the Senate unless the parties have had an opportunity to depose such witnesses.
At the conclusion of the deliberations by the Senate, the Senate shall vote on each article of impeachment.