I hate it when lawyers scam the public with esoteric knowledge.
The first historic day of the Trump impeachment hearing was full of GOP lawyers abusing the hearsay rule. I spent most of the day in the clutches of the Department of Veterans Affairs bureaucracy, so I did not get to watch. I thought I would not get to hear it, either, because I’ve had to cancel satellite radio over the cost. I only mention this to praise National Public Radio and particularly KUT in Austin for suspending regular programming in the interest of history.
History? Isn’t everything history? Why don’t all events bigfoot the local news?
There are some events that don’t require waiting for the professional historians to decide. The commercial stations, as well as the public stations, have to predict what the future will find significant — the burning World Trade Center, Tienanmen Square tank man, the flames starting at the Branch Davidian compound, Hurricane Katrina victims waving down Coast Guard choppers from their roofs.
While all the above news is more photogenic than congressional hearings, you can still take impeachment evidence to the historical bank. Andrew “Tennessee Tailor” Johnson. Richard “Tricky Dick” Nixon. William Jefferson “Slick Willie” Clinton. The current subject of impeachment hearings, Donald John Trump, is the only one who coined his own nickname (according to his first wife): The Donald. Impeachment hearings are still few enough to be a sure ticket to history, regardless of the outcome, and those of us old fashioned enough to revere the Constitution hope and pray the list remains short.
There is a serious danger to the republic that impeachment could become just another political tactic. Both George W. Bush and Barack Obama had critics who advocated impeaching them over policy disagreements. Still, the current impeachment stands alone among the four as the only one that involves foreign adversaries. There is also the matter that Mr. Trump is the only POTUS who has openly disregarded the truth, disparaged his own appointees over insufficient loyalty, and attacked the credibility of the CIA and the FBI.
The scandalized remarks about Bill Clinton’s sexual escapades seem so quaint now, but we always knew the republic would not be destroyed over a blow job. Allowing international adversaries with autocratic governments to influence our foreign policy and our elections are an existential threat to our republic. Too many congressmen still treat this impeachment as a game. If it is, the table stakes cannot be higher.
This was the context when my periodic efforts to tune in the hearing yielded complaint after complaint about “hearsay evidence.”
Ahem. This is law abuse for political advantage.
The Hearsay Rule is one of those rules subject to so many exceptions that they practically swallow the rule. In this hearing — and treating impeachment as if it were a criminal case, which may or may not be appropriate — hearsay is always admissible to determine probable cause to act.
You are a police officer on a walking beat. Somebody you don’t know runs up to you and says, “A fellow down that alley just told me he got robbed at gunpoint.” That’s hearsay. Should you investigate or not?
A search warrant application brought to me says that “an informant who wishes to remain anonymous for her safety who I believe to be credible because she has given information about criminal activity in the past that turned out to be correct told me…” Whatever she told him is hearsay. Do I sign the warrant?
An officer testifies, “I drew my weapon before I entered the alley.”
The prosecutor asks, “Why?”
“A person just ran out of the alley and told me…”
“Objection, Your Honor — hearsay.” It is hearsay. May the officer answer the question?
“Hearsay” is a statement made out of court and offered for the truth of something contained in the statement. The reason for the general rule against hearsay is that the primary method for determining truth is cross-examination, and you can’t cross-examine a speaker who is not present in court.
The Hearsay Rule is closely related to the right to confront your accusers.
Sir Walter Raleigh was on trial for treason (and therefore his life) in 1603. The evidence against Raleigh was that Lord Cobham had stated facts that showed him to be guilty. Raleigh demanded that Cobham be brought to court for cross-examination. The demand was futile and Sir Walter Raleigh lost his head.
Now, please think about these things in light of all the squalling about bringing the whistleblower to Mr. Trump’s impeachment hearing.
- This is not a trial. It’s a hearing to decide if there is reason to believe that Donald J. Trump is guilty of “high crimes and misdemeanors” within the meaning of the Constitution.
- If it were a trial, the whistleblower is not a witness against Trump. The whistleblower — like the anonymous informant for a search warrant — kicked off an investigation, but the issue at the trial is not why the authorities looked. It’s what they did or did not find. Let the whistleblower be completely wrong, how does that help Trump?
The other reason waving the bloody red shirt of the Hearsay Rule is wrong, is that the White House is withholding all the direct evidence under the president’s control. Mr. Trump instructs his employees to ignore subpoenas, and those employees would be the mother lode of direct evidence. So the committee may get, “Mr. White House Aide told me that President Trump wanted the press conference before he would release the aid to Ukraine.”
That’s hearsay. The Republicans on the committee cannot cross-examine Mr. White House Aide, but whose fault is that?
Should the House impeach and the case be tried in the Senate, Mr. White House Aide will testify and be cross-examined if that purported statement by Mr. Trump is offered. The other person who could testify about what the POTUS said without offending the Hearsay Rule is….the POTUS.
Tell me again why it’s not fair for the committee to allow hearsay evidence when deciding whether to have a trial. If it were a criminal case, the hearsay would be admissible on the issue of whether to have a trial. Is an impeachment that different?
I don’t object to people claiming the law is an ass. I object to abusing the law in an attempt to prove it.
This POTUS has attacked the FBI, the CIA, the free press, the independent judiciary, and now it would appear the law generally can be brought into disrepute if doing so helps Mr. Trump’s case.
What would we have left if Mr. Trump were removed but managed to seriously weaken all those institutions on his way out the door? With these kinds of questions on the table, it’s a safe bet that we are watching history being made. Preempt the regular programming. Set up televisions in the schools and in public places. But, please, quit misleading the public about the law.
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Previously published on medium
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Photo credit: Pixabay