As Democrats and Republicans battle over the ground rules of how a possible Senate impeachment trial should proceed against President Donald Trump, events from a trial thirty years ago show the U.S. Senate has the power to bring legal action in federal court to punish any witness who refuses to testify in an impeachment proceeding.
In the 1989 Senate trial of Alcee Hastings - then, a federal judge, now a Democratic Congressman from Florida - key witness William A. Borders, Jr. refused to testify, prompting the Senate to vote to undertake legal action.
With Borders Ignoring a subpoena for his testimony, a federal judge found him in civil contempt, as Borders was jailed until the end of the Senate impeachment proceedings against Hastings.
Hastings was later convicted by the Senate and removed from the federal bench, as Borders remained silent, just as he had in a 1982 criminal trial where Borders had refused to testify (Hastings was acquitted in that case of bribery, perjury and corruption charges).
How could this Senate precedent factor into an impeachment trial of President Trump? It all depends on what witnesses are called to testify, and whether the Senate actually wants to start a legal fight over a witness who refuses to cooperate.
Democrats have demanded that a series of Trump Administration officials and White House aides - who refused to testify before House impeachment investigators - be called in any Senate trial.
“President Trump, if you are so confident you did nothing wrong: why won’t you let your men testify?” Senate Democratic Leader Charles Schumer said on Tuesday.
Meanwhile, President Trump has joined some Republicans in saying that a trial should require the testimony of former Vice President Joe Biden, his son Hunter, Rep. Adam Schiff (D-CA), an intelligence community whistleblower, and even House Speaker Nancy Pelosi.
“The reason the Democrats don’t want to submit the Articles of Impeachment to the Senate is that they don’t want corrupt politician Adam Shifty Schiff to testify under oath, nor do they want the Whistleblower, the missing second Whistleblower, the informer, the Bidens, to testify!” the President tweeted before Christmas.
As with just about everything involved in a Senate impeachment trial, the idea of undertaking legal action to compel the testimony of witnesses - or asking a judge to put that person in jail for civil contempt - would have to be agreed upon by Senators.
For example, in the Hastings impeachment trial, the Senate approved a resolution authorizing the Senate Legal Counsel to bring a civil court action to compel testimony from Borders.
As a result, Borders was jailed for several months until the end of the Hastings trial. Borders was ultimately pardoned by President Bill Clinton in 2001.
Hastings' alleged co-conspirator, attorney William Borders, went to jail again for refusing to testify in the impeachment proceedings, but was later given a full pardon by President Bill Clinton on his last day in office. https://t.co/mUAZTVIOGS— Max Segal (@mxsgl) December 19, 2017
"We do not have any interest in having you put in jail," Sen. Arlen Specter (R-PA) told Borders in August of 1989. "But that is the established procedure on the civil side, if somebody refuses to testify."
Over the weekend, former Vice President Joe Biden at first said he would refuse to honor any subpoena for his testimony, and then backtracked.
"I would obey any subpoena that was sent to me," Biden said at a town hall in Iowa, though Biden noted that there was no reason he should be called in an impeachment trial focused on President Trump's alleged misdeeds.
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