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During the hearings for the impeachment of President Trump, the House subpoenaed the testimony of several witnesses. However, some of the witnesses refused to testify, defying the House subpoenas. At the time of the hearings, there was a consensus that the House would have to wait for the Courts to resolve the situation if they insisted on hearing the testimony.

In the Senate trial, the situation appears to be different. There is currently a debate over whether the Senate should call witnesses, as if this will result in the witnesses actually appearing. Why is that?

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    I agree with the answers below that the Senate probably does not have additional authority, however you added an supplemental question: "why is that? " referring to the possibility of witnesses actually appearing. That John Bolton might actually appear in response to a subpoena is rooted in John Bolton's attorney assertion, that Bolton would appear if subpoenaed. – BobE Jan 25 at 15:15
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The House chose not to go down the route of judicial enforcement of their subpoenas after President Trump told staff not to honour them. Instead they added this denial of congressional oversight to the impeachment charges of obstruction.

Pushing enforcement of subpoenas through the courts could take months and Pelosi has said this is much too long to wait as there is a need to complete the process before the 2020 election period.

House Speaker Nancy Pelosi wants to finish the impeachment inquiry into Donald Trump before the heart of the 2020 election, but she will likely need to do it without help from federal courts, which could take months to resolve any fight over presidential stonewalling.

When the trial begins in the Senate, the Democrats hope to call the witnesses that the White House blocked access to during the investigation. This is as much a political move as it is a legal one. If the witnesses are again blocked by the White House, it will then be up to the Republican Majority to decided to ask for judicial enforcement, pitting a Republican Senate against a Republican president. But if the White House allows those witnesses to speak, then the Democrats believe that their testimony could be very damaging to President Trump.

Republicans have at times berated the Democrats in the House for rushing the Impeachment investigation and simultaneously spoken of the need to prosecute the Senate trial quickly. If the witnesses blocked during the House investigation are called to the Senate trial, then Republicans will be facing problems caused by their own earlier statements on either speed or thoroughness for a process they now control.

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    Thanks! Your answer is that (1) the Senate does not have more power and (2) the Democrats are just redoing the fight for witnesses hoping the optics of doing it in a Republican controlled Senate help. – user257566 Jan 24 at 15:29
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    @user257566 that is my understanding, yes. There is also the possibility that the judicial branch would move faster for resolving an issue tieing up the Chief Justice than it might for a simple house investigation. But that is speculation. – Jontia Jan 24 at 23:27
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    But the president did not invoke executive privilege, according to Rep. Schiff. In fact, GOP Senators are now calling for the president to invoke executive privilege to prevent witnesses from being called – JJ for Transparency and Monica Jan 25 at 18:34
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    @JJforTransparencyandMonica sorry, the distinction between executive privilege and the president telling you to do/not do it are in this instance lost on me. Feel free to edit accordingly. – Jontia Jan 25 at 22:50
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    @Jontia yea I don't know the details either. I just heard in in Schiff's argument in the senate, and it's apparently also something the DNI testified to. – JJ for Transparency and Monica Jan 25 at 23:05
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Yes, they have more authority.

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

Some interpret this to mean the Senate can not only decide to call witnesses, but - in essence - also to decide if it's legal to do so:

The Senate (by majority vote) retains the right to decide the privilege question either directly or on an appeal of the Chief Justice’s ruling. In casting their vote and exercising their own independent constitutional judgment, individual Senators may consider important questions such as whether executive privilege is applicable in an impeachment trial and, if so, how to balance the Senate’s interest in obtaining information necessary to an impeachment trial with the President’s qualified interest in confidentiality. Congressional Research Service - Obtaining Witnesses In an Impeachment Trial: Compulsion, Executive Privilege, and the Courts (pdf),

If this happens, courts may get to decide if the Senate does indeed have such power, and if they decide in favor of the Senate the question about executive privilege, which the House subpoenas were blocked by, becomes irrelevant.

This answer is not arguing that the Senate will or should do things that way, but that they could do things this way. Which provides a Senate trial with greater authority to call witnesses than a House impeachment hearing.

This article provides a more thorough, but also more partisan exploration of the question, by a leftist opinion writer.

A comment raised that this is equivalent to the House's sole Power of Impeachment. I disagree. It's a lot easier to legally argue having "the sole power to try Impeachments" nullifies other courts' input on which witnesses may be called during the trial, than it is to argue that the House having the "sole Power of Impeachment" doesn't allow courts to be involved in legal questions during the investigations that precede the House's vote on Impeachment.


Some go even further, and argue the word try in The Senate shall have the sole Power to try all Impeachments means that refusing to call witnesses would be unconstitutional:

Senators are thus constitutionally bound to follow what Justice White described as “a set of minimal procedures.” His opinion does not specify their exact contours, except to say that they must be the kinds of procedures a reasonable judge would regard as necessary components of a court trial. Because no reasonable judge would refuse to allow witnesses with personal knowledge of the facts to testify in an ordinary trial, it is the Constitution itself that establishes the right of House managers to call witnesses The Atlantic - An Impeachment Trial Without Witnesses Would Be Unconstitutional


In addition, a ruling by the Chief Justice of the United States John Roberts on the matter (while presiding over the impeachment trial) would be immediate, and carry far more moral authority than a party line vote in the House.

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    The exact same argument says that the House has just as much power, as they have the sole power of impeachment. And the House has at times used exactly that argument, saying that going through the courts is inappropriate, and part of the obstructing delay tactics of the president, because the constitution makes it clear that they are the ones that get to decide what is valid in an impeachment. Courts are unlikely to just write a blank check like that, but they may very well pay it a lot of deference. – zibadawa timmy Jan 25 at 18:18
  • This is a really interesting answer as it suggests that not perusing the judicial route to enforce subpoenas is the legally correct move. It defines the house power as 'This seems a problem' and Senate power as 'We will look into it' – Jontia Jan 25 at 22:59
  • And given the topicial issue, it seems at odds with the current Senate's interpretation. As the majority leader feels all he information gathering stage is over. – Jontia Jan 25 at 23:09
  • When one has to wait for judicial review to exert either the House's or Senate's powers, it really seems like they're equal. – Carduus Jan 27 at 14:02

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