In the upcoming Senate "trial" of Donald Trump, can Adam Schiff reject a subpoena to appear because he presided over the House proceedings? I find it unusual that someone could both officiate in and testify in the same investigative political/legal process. Yes, I would extend the same reasoning to any Republicans such as Devin Nunes.

Does Congressman Adam Schiff have the right to refuse legal demands to testify, based on such a conflict of procedures and interests?

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    Wouldn't he be the one to present the evidence in the senate anyway? Or are you asking if senators could call him as a fact witness? – JJJ Nov 23 '19 at 13:41
  • I am not American. So I am used to systems where anyone in one House is not allowed to go into the other one. But if Schiff is allowed to preside over the Senate proceedings then surely the conflict of interest, if he were called as a fact witness, would be even greater? – Snack_Food_Termite Nov 23 '19 at 13:43
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    He doesn't preside over the senate but he, or someone else from the House will present the evidence of the inquiry and impeachment part in the house to the senate. It's like a trial, the senators are jurors and others will give evidence. I don't know the exact procedure or if that's already determined but it makes for interesting questions. – JJJ Nov 23 '19 at 13:48
  • Is there a reason behind this question? Some indication that Schiff would refuse to testify? Otherwise it seems like a baseless attack. – Jontia Nov 23 '19 at 17:42
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    @JJforTransparencyandMonica be careful: in English law, "give evidence" means the same as "testify" in US law. That is, it describes what a witness does. Schiff wouldn't be a witness, as you note, but more likely a prosecutor (called "managers" in an impeachment trial). – phoog Nov 24 '19 at 16:10

Can Adam Schiff refuse to testify because of a conflict of interest?

No. Not conflict of interest.

[TL;DR - In any trial, facts must be established and Rep. Schiff has certain facts to be established as part of the proceeding; therefore may be called.]

Rep. Schiff may be called to testify that the whistleblower contacted the House Intelligence Committee prior to filing a complaint with the Inspector General of the Intelligence Community (IGIC) and to question how much information was provided. Any contact, by the whistleblower prior to filing a complaint with the IGIC would appear to be a violation of procedure in 50 U.S. Code § 3033 (k)(5)(I).

(I) An individual who has submitted a complaint or information to the Inspector General under this section may notify any member of either of the congressional intelligence committees, or a staff member of either of such committees, of the fact that such individual has made a submission to the Inspector General, and of the date on which such submission was made.

[Emphasis added.]

Having established that a violation of procedure occurred, it would appear that the Senate is free to "out" the whistleblower and question that person about any and all relevant facts surrounding the complaint. This is important to establish whether the complaint was a matter of "urgent concern".

(G) In this paragraph, the term “urgent concern” means any of the following:

(i) A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.

[Emphasis added.]

The phone call didn't, if I recall correctly, involv[e] classified information, despite the attempt to conceal elements of it by moving the transcript to a classified server, and, with the proper "spin", it could be argued that weeding out "corruption" is a public policy matter, with which the whistleblower had differences of opinion due to the mention of a potential political opponent to the president.

  • Please note that I have given this answer a tick because of its legal detail. I am not considering my views about the whistleblower. – Snack_Food_Termite Nov 23 '19 at 17:10
  • I've downvoted this answer because I don't think that there is any precedent suggesting that house members would be asked to testify concerning how they came by the evidence that they present in trial. If anyone can point to something showing that I am wrong, I'll change my vote. – phoog Nov 24 '19 at 16:07
  • @phoog - It isn't about precedent. It's about what the president's counsel wants and what the Senate will allow. Articles I read yesterday suggest the Senate will not allow Rep. Schiff to be called and may allow the president's counsel to depose the whistleblower in private. In any case, I was suggesting a hypothetical under which Rep. Schiff "may" be called to testify. – Rick Smith Nov 24 '19 at 16:31
  • Perhaps I should have said "precedent or anything else." The idea that Schiff could be a witness just strikes me as bizarre. – phoog Nov 24 '19 at 19:22

Should Rep. Schiff refuse to comply with a Senate suboena to testify during an impeachment trial, that would be a completely unprecedented event in recent US history, so the results of such a refusal are impossible to predict with certainty.

First, it appear to me that Rep. Schiff would not be subpoenaed by the Senate no matter what. What would he testify to? Any role in the processing of the whistleblower's complaint? Rep. Schiff's testimony in such a situation would be irrelevant. Should there be documentation of his involvement in the process of handling the whistleblower's complaint, for example, Rep. Schiff's testimony wouldn't matter as any role he played would be documented. And if there's no documentation, there'd be no point in calling Rep. Schiff to testify. The only point in calling him to testify would be political, and in my opinion Senators won't want to poison House-Senate relations to score points on another member (because in the future, maybe they'd be the ones subject to such a subpoena, so let's not establish that precedent...).

And that applies to any situation I could see where Rep. Schiff's testimony could even be tangentially relevant to any impeachment trial. Rep. Schiff's testimony would be irrelevant because either events would be documented, or there would be no documentation and no reason to call him.

But, assuming we get to Rep. Schiff being called to testify in a Senate impeachment trial anyway...

It's a pretty strongly established aspect of US jurisprudence that the Senate and the House of Representatives have plenary power to set the rules for their own proceedings*, granted by the US Constitution, Article I, section 5:

Each House may determine the Rules of its Proceedings

In addition to that, the US Constitution's Article I, section 3 gives the Senate "sole power to try all impeachments":

The Senate shall have the sole Power to try all Impeachments.

Note that the only uses of the words "sole power" in the US Constitution are in granting the House of Representatives the power to impeach, and in granting the Senate the power to try all impeachments, making its use extremely significant (I'm not aware of any judicial ruling regarding interpretation of the impeachment clauses granting "sole power" so there's no precedent that I'm aware of, but I suspect no US court would want to involve itself in this.)

So the Senate should in theory be free to subpoena anyone they wanted to for impeachment trial testimony, and I can't see any way any court would block such a Senate subpoena given the "sole power" grant in the US Constitution.

So, Rep. Schiff would not be able to quash the subpoena.

What would happen should Rep. Schiff then defy the subpoena and refuse to testify?

As far as I can tell, that's a complete unknown. I can find no instances of anything similar happening in a Senate impeachment trial. The closest recent example of a US government official in any significant role that refused to testify before Congress is that of Attorney General Eric Holder, who refused to testify before the House, and was held in civil and criminal contempt of Congress in 2012.

Effectively nothing happened to Holder for his being held in criminal contempt of Congress as the Department of Justice refused to prosecute.

That would lead me to think Rep. Schiff would be able to effectively ignore the Senate subpoena.

However, Holder's case is significantly different from any hypothetical Schiff refusal to testify in two ways

  • This would be an impeachment trial held by the entire US Senate, of much, much greater importance than a partisan-tinged investigation by a single House committee. The political and legal pressure on Rep. Schiff could very well be much, much stronger than what Holder faced and was able to withstand.
  • Rep. Schiff is not in charge of the Department of Justice, so there would be no apparent "who wants to be the one to charge our boss with a crime" conflict of interest to perhaps protect him.

So, I don't think anyone can predict what would happen should Rep. Schiff attempt to defy a Senate subpoena to testify during any impeachment trial.

I'd speculate, however, that the results would highly depend on the importance of Rep. Schiff's testimony and how it might potentially relate to any facts established in the Senate trial. Should his testimony obviously be of marginal or no importance, I suspect Rep. Schiff would be able to ignore the subpoena with immunity.

In the entirely hypothetical situation where his testimony would be of utter, absolutely critical importance to the trial, and Rep. Schiff still refused to testify, it would not surprise me to see Rep. Schiff frog-marched live on TV onto the Senate floor live in irons for his testimony. I think that it's extremely, extremely unlikely for any situation to reach that point though, as Rep. Schiff would likely be able to delay such a possibility for a long enough time that his testimony would become moot no matter how critical it might have been earlier in the process.

Now, what would happen should we get to forced testimony, and Rep Schiff invoked his Constitutionally-protected right against self-incrimination? I suspect the Senate would be able to grant (or in this case, impose...) immunity to Rep. Schiff, removing his ability to incriminate himself and therefore his right to refuse to testify. But that would take time, too, increasing the chances his testimony would be moot. But maybe not.

So again, after a lot of back-and-forth we're all back to, "No one really knows what would happen."

It's just too unprecedented an event to be able to predict with certainty.

But do note that in all cases, "Nothing happened to Rep. Schiff for refusing to testify." is always, in my opinion, somewhere from completely certain to fairly likely.

* - and my Google skills are lacking to find actual cites for this.

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    It is not unprecedented for Schiff to refuse a subpoena? Haven't some people refused ones that were requested by the Democrats in the course of these hearings? – Snack_Food_Termite Nov 23 '19 at 17:06
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    @Snack_Food_Termite I'd think so, but this answer was already long enough. – Just Me Nov 23 '19 at 18:22
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    I've upvoted this answer because of the second paragraph: there's no reason to think anyone would seek Schiff's testimony at the Senate trial. – phoog Nov 24 '19 at 16:12
  • @phoog Thanks. This whole answer is admittedly a hypothetical exploration of "What if they did anyway?" The TLDR answer would be: "They won't, but if they did, Rep. Schiff could almost certainly avoid testifying with impunity should he desire." – Just Me Nov 25 '19 at 23:28

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