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Yes, Hunter Biden Can Be Forced to Testify
“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:
§6001. Definitions
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.
* S.Res.483 – A resolution to provide for related procedures concerning the articles of impeachment against Donald John Trump, President of the United States. [emphasis and dates added]
Published in PoliticsIN 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 toRESOLUTION
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.
What questions would he be asked, though?
Should he be asked whether the new prosecutor was “solid,” as his father claimed?
I want him to testify, and also Adam Schiff. I want them to ask Schiff under oath if he met with the whistle blower. Or no, make it if he colluded with the whistle blower. And then play the audio tape of him colluding with a fake Russian on the phone, and ask him about THAT.
Don’t ask a question to which you don’t know the answer. Do we know?
Thanks CAB for pulling this together.
I suspect that, if there are witnesses, they will not get to testify live on C-SPAN but rather will only give depositions. These may well be recorded on video. The senators will all get the transcripts and controlled access to any video. Then they will vote to decide if anyone actually needs to appear live before the Senate.
There were no witnesses called to testify on the Senate floor in the Clinton impeachment trial, where there were witnesses but the Senate only allowed a set of video excerpts from the depositions to be played before the Senate in session. So, the “safe,” “fair” position is for the same to happen this time.
I think we do know that he met with him, don’t we? And that he even helped him with what he was going to say?
I don’t know. I guess I’m not up to speed on that.
If this were an actual court proceeding, rather than the political soap opera that is impeachment, Hunter Biden’s testimony on his alleged corruption would inadmissible as irrelevant.
Also, in a court proceeding with clear burdens of proof and presumptions of innocence, the defense would not want to call Hunter Biden. You only need a witness or two to establish that Trump had reasonable grounds to suspect corruption. Just someone to say “Here is what we told the President about Biden…” That is relevant and that is all you need. It’s as far as you need to go to establish the defense that Trump’s pressure may have had a legitimate purpose. You should never try to go further than you need to go.
What if you call Biden and his testimony doesn’t go the way you think it will? What if the corruption case turns out to be weak? That would make the President look really bad. You don’t need to risk that. It’s enough that there was a legitimate suspicion (if there was).
But since this is not a real court proceeding, nor, it seems, any real effort to examine executive power, where the line of abuse might be, etc…just tribal politics, I guess the hope is just to make it as messy a show as possible.
We disputed this earlier, and I offered an alternative theory. I certainly have no issue with a contrary opinion, but let’s not claim this is definitive enough to be more than a matter of your own informed viewpoint.
This is what happens when I get all my news from podcasts. Seven seconds into the video “Wait, that’s what Knowles looks like? No wonder Klavan rags on him so much.”
Wait, you believed the podcast PR shot?
Your assessment of the Democrats’ intent is fairly on target, I think.
Since you recognize this ain’t that, what do you see as desired optics and facts introduced into evidence, considering the goals of the Democrats and their GOP allies of convenience who desperately, deludedly desire a return to an imaginary status quo ante?
And. Are you even close to serious about the Hunter Biden passage? Really? Yes, as a matter of U.S. Code, written by the sleazeballs for the sleazeballs, there is a fair chance he was “perfectly legal” … and the facts are so plainly repulsive that every Senator will rush to co-sponsor a “reform” bill to “fix” the terrible optics.
I think Joe Biden should be called to explain why his forced firing of the Ukranian prosecutor looking into his son was not an impeachable offense.
Republicans are generally PR losers. So there is little value in providing ammunition for public relations. Since most media and Democrat voters don’t care about truth, arguments are irrelevant. Republican revelations will be ignored and overwhelmed by lies.
People have already chosen their corners. The legal game is what matters now. Can the President’s opponents prevent him from seeking reelection?
At least Cruz has proven more adept than most Republicans at media. He directly involves himself in new media like podcasts and YouTube, bypassing filters and interruptions. And he’s a clear, intelligent communicator.
I think Biden should testify as to what he did, and Republicans should do the explaining as to why it’s an impeachable offense. I’ve watched Republicans ask for explanations in public congressional hearings, and their stupidity is not a pretty sight.
I wonder if he sees how Trump manages the press and understands you don’t have to take their cr*p. Maybe he’s getting ready for 2024 . . .
This podcast was very good – well worth listening to, and I love Ted Cruz’s boots….
Interesting to watch how Cruz deals with reporters.
I am definitely serious about it. Here is one of the most common phenomena I have encountered in the practice of law: a client comes in with absolute certainty of the factual and moral superiority of their claim. It is clear as a bell to them that they cannot possibly lose. They can’t wait to get the other party under oath to show the rest of the world what terrible things they have done and what terrible people they are. It’s all a righteous march through the court system until…..the other side gets to have their say. Then things suddenly don’t look so clear. There are facts that my client forgot about, or didn’t know, or forces at work in the situation that they did not see, explanations and excuses on the part of the other party which may be legitimate and reasonable, things that my client’s natural, understandable bias blinded them to. Now, after promising to prove the other side is evil, my clients’ credibility is shot. Very quickly after I started practicing I became a much more cautious lawyer.
How often have the media and the Dems made this very mistake with Trump? Trump should take a lesson from them and stick with what he has. Right now, Hunter’s conduct looks very bad and presumably somebody informed Trump at some point of these concerns with corruption. For purposes of the impeachment defense, keep it that way. Don’t overreach.
I’m not saying he should let Hunter get away with anything. By all means continue to investigate. But don’t pin your impeachment defense on the results of that investigation. And certainly don’t give him immunity. That only makes it plain you don’t really care about his corruption.
Why give him immunity? Forcing Biden to state on the record that he cannot be compelled to testify due to his rights against self-incrimination tells the public all they need to know about whether President Trump had a good faith belief that Biden’s activities in Ukraine were a proper matter for investigation.
Fair points. And. This is not a court case. No one should care about Hunter Biden’s corruption in isolation. We ought to care about a senior elected official’s corruption, as Senator Cruz points out. The immunized testimony of Hunter Biden would clear up whether or not Vice President Biden was seriously bent or just sketchy, playing a game that Congress had made perfectly legal but that does not smell right to ordinary citizens, voters. That game, in the context of Ukraine, likely reinforced, rather than reduced, corruption in that country.
I still see him as Trump’s USSC nominee when Breyer retires.
Sure Hunter got the job because of his intimate knowledge of cocaine and strippers.
Ditto his China gig. And NTSB bank, and Amtrak.
Absolutely no attempt to gain influence with senator and later VP Slo Jo.
I hope he turns it down.
And. Perhaps a stretch from others, but still likely within the very broad lines Congress drew for its own benefit. Testimony could be embarrassing to a lot of people, and might shine enough light to prompt some ethics laws reform for Congress and government service more generally.
Let’s have the vote and be done with this.
yeah, that would work, because everyone knows that witnesses never lie.
The order would include lots of document production, show what you were paid by what business. Account for your apparent life style with financial statements. Standard white collar crime stuff plus that federal law about registration as a foreign power agent, if applicable. You likely ask no questions until you get documents, from the individual, financial institutions, even the foreign companies and governments.
The point is that the moment 51 senators vote for any witnesses, this goes at least a month longer, possibly much longer. Meanwhile, senators get back into regular business and the Democrats running for president get out on the campaign trail.
Not hardly. I just clicked on your video and it took me that long for the recognized voice to sync in my mind with the available face.