# Could the witnesses who have been "flipped" by Mueller be forced to testify in impeachment hearings **URL:** \ **Category:** Factual Questions\ **Created:** [August 8, 2018, 6:02pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288 "2018-08-08T18:02:27Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [August 8, 2018, 6:02pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/1 "2018-08-08T18:02:27Z")
Various witness have been “flipped” by Mueller, and have signed deals for immunity or reduced sentences in exchange for testifying for the prosecution. e.g. Rick Gates who is currently testifying against Manafort. And there is a strong possibility more will follow (_coughs_ Michael Cohen). My question is could those witnesses be forced to testify in a hypothetical future impeachment hearing? Presumably it would depend on the exact details of the deal reached with Mueller. Seeing as it is the stated policy of the justice dept that the sitting president can’t be indicted, it doesn’t seem too unreasonable for Mueller to consider a hypothetical future impeachment hearing during his investigation. Even if no such clause is included in the deals struck by the current crop of cooperating witnesses, is there anything that would stop Mueller from adding them to a future one? e.g. if Michael Cohen has evidence of “high crimes and misdemeanors” committed by Trump could he be given immunity or reduced sentence on the crimes currently being investigated in NY in exchange for testifying against Trump, were impeachment proceedings be brought in the future (possibly in addition to testifying in regular trial against non-Presidents who were involved in those crimes). ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [August 8, 2018, 7:14pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/2 "2018-08-08T19:14:55Z")
Everyone must testify when put on the stand (or whatever it is called) there are a few exceptions. you cannot be forced to testify if it incriminates you, you plead the fifth - but if you have immunity assurances from the prosecutor (or pardon from the president) you are not incriminating yourself when testifying about whatever the immunity/pardon covers. For anything else, you can plead the fifth. IIRC, you cannot claim the fifth for crimes you have been convicted on, since double jeopardy prevents the evidence being used… unless you are still in appeal, I assume. A defendant cannot be forced to testify at hi own trial. In other trials, unless see above, he can plead the fifth. There are also exceptions for clergy, lawyer privilege, etc. within certain limits. (I.e. lawyer privilege does not apply to a lawyer conspiring to commit crimes, or future crimes, etc.) Some places still have the exception against spouses testifying in certain circumstances. The government conveniently gets out of producing some evidence by claiming national security, but that’ up to the judge. So this is one reason why White House pardons aren’t flying off the shelf. Pardoned suspects can no longer use the fifth to avoid testifying what they know. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [August 8, 2018, 7:24pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/3 "2018-08-08T19:24:28Z")
> [@md2000](#): > > Everyone must testify when put on the stand (or whatever it is called) > there are a few exceptions. > you cannot be forced to testify if it incriminates you, you plead the fifth - but if you have immunity assurances from the prosecutor (or pardon from the president) you are not incriminating yourself when testifying about whatever the immunity/pardon covers. For anything else, you can plead the fifth. > IIRC, you cannot claim the fifth for crimes you have been convicted on, since double jeopardy prevents the evidence being used… unless you are still in appeal, I assume. > A defendant cannot be forced to testify at hi own trial. In other trials, unless see above, he can plead the fifth. > There are also exceptions for clergy, lawyer privilege, etc. within certain limits. (I.e. lawyer privilege does not apply to a lawyer conspiring to commit crimes, or future crimes, etc.) > Some places still have the exception against spouses testifying in certain circumstances. > The government conveniently gets out of producing some evidence by claiming national security, but that’ up to the judge. > > So this is one reason why White House pardons aren’t flying off the shelf. Pardoned suspects can no longer use the fifth to avoid testifying what they know. But as I understand it being in contempt of congress is practically speaking much less likely to send you to prison than being in contempt of court in similar circumstances or even lying to federal agents while not under oath. I was specifically asking about the plea deals. Is it possible they are (or could be written) in such a way as if an impeachment hearing rolls around in 2019 and Rick Gates (for example) is called, and decides to plead the fifth. Then he can dragged back into court and prosecuted for all the things he is currently admitting to in court (just as he would be if decides to do so in court tomorrow). ---
**Author:** ![senoy](https://avatars.discourse-cdn.com/v4/letter/s/dbc845/32.png) [@senoy](https://boards.straightdope.com/u/senoy)\ **Post date:** [August 8, 2018, 7:30pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/4 "2018-08-08T19:30:13Z")
> [@md2000](#): > > Some places still have the exception against spouses testifying in certain circumstances. I think that spousal communication is in every state and it’s cool because as I understand it, it’s actually the defendant that invokes it. In the case of clergy, it’s the cleric that invokes the privilege and can choose to testify if they wish (from a legal perspective, their religion might not be happy about it.) Spousal communication though can be invoked even if your spouse WANTS to testify. So if you come home, tell your wife that you murdered someone, she couldn’t testify against you even if she wanted to as long as you say it was a confidential communication (although she could testify that you came home looking disheveled and carrying a bloody hatchet.) In some states spouses are also protected against giving testimonial evidence so that if she didn’t want to say that you had a bloody hatchet, the state couldn’t force her to. ---
**Author:** ![Sunny\_Daze](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sunny_daze/32/438_2.png) [@Sunny\_Daze](https://boards.straightdope.com/u/Sunny_Daze)\ **Post date:** [August 8, 2018, 7:47pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/5 "2018-08-08T19:47:09Z")
No, I don’t think spousal communication applies in every state and in every circumstance. From wikipedia, which is a very cursory overview: > [@](#): > > Under U.S. federal common law, the spousal testimonial privilege is held by the witness-spouse, not the party-spouse, and therefore does not prevent a spouse who wishes to testify from doing so.[4] The rationale of this rule is that if a witness-spouse desires to testify against the party-spouse, there is no marital harmony left to protect through the obstruction of such testimony. This common law principle is the view in a minority of U.S. states. A majority of U.S. jurisdictions, however, do not follow U.S. federal common law; in most states, the party-spouse, and not the witness-spouse, is the holder of spousal testimonial privilege. > > Spousal testimonial privilege covers observations, such as the color of the clothing the party-spouse was wearing on a certain day, as well as communications, such as the content of a telephone conversation with the party-spouse. > > The witness-spouse may invoke testimonial privilege regarding events which occurred (1) during the marriage, if the spouses are still married; and (2) prior to the marriage if he is married to his spouse in court proceedings at the time of trial. If, by the time the trial occurs, the spouses are no longer married, the former spouse-witness may testify freely about any events which occurred prior to, after, or even during the marriage. Spousal testimonial privilege, in other words, only lasts as long as the marriage does. Not all states are handle testimonial privilege the same way, but federal courts do. ---
**Author:** ![senoy](https://avatars.discourse-cdn.com/v4/letter/s/dbc845/32.png) [@senoy](https://boards.straightdope.com/u/senoy)\ **Post date:** [August 8, 2018, 7:54pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/6 "2018-08-08T19:54:57Z")
> [@Sunny\_Daze](#): > > No, I don’t think spousal communication applies in every state and in every circumstance. From wikipedia, which is a very cursory overview: > > Not all states are handle testimonial privilege the same way, but federal courts do. That’s referring to spousal testimonial, not spousal communication. They are different things. Communication refers to things you tell your spouse. Testimonial refers to things they observe. So if you tell your wife you’re a murderer, that’s protected. If she sees you murder someone that depends on jurisdiction and how she feels about the situation. At least that’s how I understand it. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [August 8, 2018, 7:56pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/7 "2018-08-08T19:56:16Z")
> [@griffin1977](#): > > But as I understand it being in contempt of congress is practically speaking much less likely to send you to prison than being in contempt of court in similar circumstances or even lying to federal agents while not under oath. > > I was specifically asking about the plea deals. Is it possible they are (or could be written) in such a way as if an impeachment hearing rolls around in 2019 and Rick Gates (for example) is called, and decides to plead the fifth. Then he can dragged back into court and prosecuted for all the things he is currently admitting to in court (just as he would be if decides to do so in court tomorrow). I guess it depend on the wording of the plea deal. I assume it would be written to cover every eventuality - basically, if we’re going to give you a get out jail free card, you’re going to damn well earn it. Note the gotcha - a federal prosecutor AFAIK has no authority to offer any immunity from state prosecutions, presumably they have to get consent from a state attorney. Similarly the presidential pardons AFAIK don’t cover state crimes. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [August 8, 2018, 7:58pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/8 "2018-08-08T19:58:08Z")
> [@senoy](#): > > That’s referring to spousal testimonial, not spousal communication. They are different things. Communication refers to things you tell your spouse. Testimonial refers to things they observe. So if you tell your wife you’re a murderer, that’s protected. If she sees you murder someone that depends on jurisdiction and how she feels about the situation. This is a bit of a sidetrack. Given[the accusations by Manafort’s defense today in court](https://www.nytimes.com/2018/08/08/us/politics/manafort-trial-gates-testimony.html). I suspect spousal privilege is not going to be an issue in any future impeachment testimony featuring Rick Gates. ---
**Author:** ![senoy](https://avatars.discourse-cdn.com/v4/letter/s/dbc845/32.png) [@senoy](https://boards.straightdope.com/u/senoy)\ **Post date:** [August 8, 2018, 8:01pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/9 "2018-08-08T20:01:42Z")
> [@griffin1977](#): > > This is a bit of a sidetrack. Given[the accusations by Manafort’s defense today in court](https://www.nytimes.com/2018/08/08/us/politics/manafort-trial-gates-testimony.html). I suspect spousal privilege is not going to be an issue in any future impeachment testimony featuring Rick Gates. That’s true, but it would be nice if Melania could testify in an impeachment trial. I’d love to hear what she had to say. 🙂 The original question though was answered by md2000. Anyone can be called to the stand. You don’t have to jeopardize yourself, but if you have already been given immunity, you’re not in jeopardy, so they could be required to testify at an impeachment hearing - provided that they are testifying about things to which they have already been given immunity. The immunity given to Gates seems to be about financial charges, so if he knows something about Russia he wouldn’t have to testify if it incriminated him. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [August 8, 2018, 8:11pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/10 "2018-08-08T20:11:47Z")
> [@senoy](#): > > Anyone can be called to the stand. You don’t have to jeopardize yourself, but if you have already been given immunity, you’re not in jeopardy, so they could be required to testify at an impeachment hearing - provided that they are testifying about things to which they have already been given immunity. The immunity given to Gates seems to be about financial charges, so if he knows something about Russia he wouldn’t have to testify if it incriminated him. Unless part of the plea deal says he does. The OP wasn’t about the general rules as to when you can/can’t plead the fifth to congress. It was whether a prosecutor can write a plea deal in such way as it covers future impeachment proceedings, not just the criminal trial they are about bring to court. And it seems they can. Follow up question then is, has it ever been done? During Watergate or the Ken Starr investigation for example? ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [August 8, 2018, 8:52pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/11 "2018-08-08T20:52:37Z")
And a second follow up questions. Do all the details of the plea deal have to be public? Is it possible that such a clause is in the deals that have been made, but not made public. It seems unlikely to me, given the scrutiny plea deals are given by the defense team in order to cast doubt on the evidence that results. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [August 8, 2018, 9:29pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/12 "2018-08-08T21:29:20Z")
Some exceptions: The plea deal covered crimes X and Y but not Z. All very closely related but Mueller didn’t want to get into Z for some reason. And when testifying before Congress taking the 5th when asked about stuff in the “area” of Z could ensue. This “area” might be broad enough that it limits questioning on X and Y. Also, crimes might be involve state charges. Mueller has no ability to offer deals on those. But testimony in a Federal trial covered by a plea deal is usually not allowed to be used in a state trial. OTOH, testimony in Congress might not be so covered. So, take the 5th again if state prosecution might ensue. Note that in the infamous case of Ollie North, his testimony in front of Congress helped him get his conviction overturned\*. One witness at his trial saw North’s testimony and that muddled things. - Note that this is in no way shape or form a “technicality”. Because …, well just because. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [August 8, 2018, 9:41pm UTC](https://boards.straightdope.com/t/could-the-witnesses-who-have-been-flipped-by-mueller-be-forced-to-testify-in-impeachment-hearings/819288/13 "2018-08-08T21:41:33Z")
> [@ftg](#): > > Some exceptions: > > The plea deal covered crimes X and Y but not Z. All very closely related but Mueller didn’t want to get into Z for some reason. > > And when testifying before Congress taking the 5th when asked about stuff in the “area” of Z could ensue. This “area” might be broad enough that it limits questioning on X and Y. > > Also, crimes might be involve state charges. Mueller has no ability to offer deals on those. But testimony in a Federal trial covered by a plea deal is usually not allowed to be used in a state trial. OTOH, testimony in Congress might not be so covered. So, take the 5th again if state prosecution might ensue. > > Note that in the infamous case of Ollie North, his testimony in front of Congress helped him get his conviction overturned\*. One witness at his trial saw North’s testimony and that muddled things. > > - Note that this is in no way shape or form a “technicality”. Because …, well just because. To clarify again, I wasn’t asking whether a previous plea deal would generally allow someone to the take the fifth during impeachment. I was asking whether a plea deal could be specifically written to force the individual agreeing it to NOT take the fifth or otherwise mislead or fail to cooperate with a future impeachment investigation, on pain of prosecution for whatever the plea deal is giving them immunity from.