POLITICS OF HEARSAY IN THE TRUMP IMPEACHMENT INQUIRY
The GOP Position On Hearsay Is Fraught With Problems
Roadkill (originally titled Waiting to Exit), Oil on Panel, 35.5" x 46.5", 1990 (the roadkill and birds were added later), Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
The GOP’s talking points and defense of Mr. Trump include something like this:
• As President Mr. Trump has authority over the foreign policy and national security of the Unite States
• Mr. Trump cares (deeply) about eliminating corruption which is a central theme of his administration
• Mr. Trump is determined to eliminate or reduce corruption in the countries the United States provides assistance
• Ukraine, a country the United States has committed to provide assistance, has a long history of corruption including during the Obama administration when Mr. Biden’s son, who had no experience in the oil and gas industry, sat on the board of BURISMA and received $50,000.00 per month for his trouble
• Mr. Biden conditioned the release of $1 billion in United States aid to Ukraine on the dismissal of a prosecutor who was looking into possible corruption in BURISMA, including that of Mr. Biden’s son
• Mr. Trump’s stated position on Ukraine, among other things, is to root out corruption, including corruption that continues after the Obama administration
• Mr. Trump’s official conduct is consistent with his stated position by withholding congressionally approved assistance until he was convinced Ukraine is taking meaningful steps to reduce and eliminate corruption, after which he authorized the release of the military aid
• The House has no direct evidence to challenge Mr. Trump’s position statement
• The House has no direct evidence to support the Whistleblower Report accusing Mr. Trump of using his office to attempt or conspire to solicit the assistance of a foreign country to interfere in the next presidential election or to extort/bribe Ukraine with United States military aid, among other things, in exchange for a personal political benefit
• Any so-called evidence the House has to support a Trump attempt or conspiracy to use his office in this manner is nothing more than hearsay, or hearsay on hearsay. Hearsay is unreliable and cannot be fairly tested for accuracy or veracity
• This weak use of unreliable hearsay against Mr. Trump, especially as a means to undo the 2016 election and the will of the electorate, reveals the vacuous, partisan nature of the impeachment inquiry and that it is nothing more than the continuation of a politically motivated witch hunt
Why is hearsay a main GOP talking point to challenge the Trump impeachment inquiry? How is the GOP using, or misusing, the concept?
The GOP makes the argument that the impeachment inquiry is unfair because it is based in hearsay. We all have a colloquial understanding of hearsay. Maybe that’s what the GOP has in mind when it complains that the Whistleblower Report is nothing more than a partisan, hearsay hit-job. But hearsay, when used in official government proceedings, is a term of art.
The Federal Rules of Evidence are designed to assure the testimony and exhibits a judge admits as evidence in a criminal or civil case — usually a trial — are relevant to the factual dispute, are authentic and well-sourced and can be tested for veracity and accuracy through cross-examination and other admissible evidence.
In short the Federal Rules of Evidence define hearsay as an out-of-court statement that is offered into evidence to prove the truth of the matter asserted in the statement. Specifically, hearsay is defined as:
“(a) Statement. ‘Statement’ means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. ‘Declarant’ means the person who made the statement.
(c) Hearsay. ‘Hearsay’ means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.”
For example, inadmissible hearsay in a homicide case would be a police officer’s testimony that the medical examiner told him the cause of death was blunt-force trauma to the head consistent with being struck by a baseball bat — an out-of-court statement being offered to prove the victim died from blunt-force trauma to the head consistent with being struck by a baseball bat. The judge should not admit the officer’s testimony into evidence. If the judge allowed that hearsay answer, the defense attorney could not cross-examine the veracity or accuracy of that cause of death opinion because the medical examiner who conducted the autopsy and reached the conclusion, the person with personal knowledge, is not the testifying witness. The prosecutor must call the medical examiner as a witness in order to elicit testimony concerning cause of death. The defense attorney can then cross-examine the medical examiner to test the strength of the opinion, attempt to reveal flaws in the autopsy, challenge assumptions, findings and conclusions, and try to establish that the proper findings are more consistent with some alternative cause of death.
The Federal Rules of Evidence recognize 23 exceptions to the rule barring hearsay. Those exceptions acknowledge sufficient reliability of the out-of-court statements to serve as evidence of proof of the facts set forth in the statements.
For the purpose of this discussion, however, let’s assume the GOP’s talking points reference hearsay that would not be subject to an exception and would be inadmissible in a proceeding where the Federal Rules of Evidence apply and are enforced.
In the context of this impeachment inquiry, the GOP position on hearsay is fraught with problems.
First, the Constitution grants the House plenary authority to bring charges that the president has committed treason, bribery or high crimes and misdemeanors — articles of impeachment. The process is left to the discretion of the House. Whether the Federal Rules of Evidence or constitutional rights (Fifth and Sixth Amendments, for example) apply in an impeachment inquiry is left to the House.
[The Fifth Amendment right to due process typically does not arise until one is facing the loss of life, liberty or property — after charges are brought, for example. Sixth Amendment rights of a criminal defendant typically do not attach until after a defendant is charged with a crime. Criminal charges typically occur only after an investigation. Republicans have argued the process in the House, including closed-door depositions (at which GOP members of the House are free to attend and sometimes do), deprives Mr. Trump of those constitutional rights during the investigative phase. No precedent exists for that argument and by definition, impeachment is not “criminal.”]
Second, investigations of wrongdoing often begin with hearsay reports or tips. The GOP is correct that the Whistleblower’s Report is classic hearsay. The Whistleblower documented what persons reported to him (out-of-court statements of things they overheard) about the July 25, 2019 Trump-Zelensky call. The Report would never be admitted to prove the substance of the Report in a proceeding in which the Rules of Evidence are enforced. As with anonymous tips and reports from confidential informants, the Report, with the full-throated endorsement of the intelligence community’s OIG, nonetheless provided the House sufficient basis to begin an inquiry to determine the accuracy of serious allegations identified in the Report of presidential abuse of power and whether such conduct rises to the level of an impeachable offense.
[I have been involved in criminal cases where the defense is prohibited from learning the identity of tipsters and confidential informants, paid and otherwise, who provide evidence in support of applications for search warrants. Under the facts of those cases the evidence obtained from the search and seizure itself and the prosecution bore no relationship to the identity of the tipster or confidential informant. Disclosing their identity would place the safety of tipsters and informants at risk (not unlike disclosing the identity of a whistleblower) and destroy their usefulness in future cases.]
Third, use of the Federal Rules of Evidence in investigations would be impractical if not impossible. Investigations are designed to determine the facts, discover whether wrongdoing occurred and gather admissible direct and non-hearsay evidence to satisfy the ultimate burden of proof at the trial stage. This House impeachment inquiry is investigative in nature. Preliminary. The investigation is to determine whether the hearsay allegations in the Whistleblower Report are factually supported and to gather those facts in an admissible form that would support a trial in the Senate. The House will later determine whether to issue articles of impeachment based on the results of the inquiry.
[Parenthetically, hearsay is allowed and used extensively in grand jury investigations and charging decisions, probable cause determinations in bringing criminal complaints and informations, decisions by magistrates to bind over criminal defendants for trial, decisions by judges to release or detain criminal defendants pending trial based on flight risk and danger to the community, sentencing decisions after a defendant pleads guilty or is convicted with admissible evidence by proof beyond a reasonable doubt, and applications on which magistrates rely to issue search warrants.]
Fourth, in the face of the White House’s blanket obstruction, the Republican argument that the House lacks direct evidence of wrongdoing identified in the Whistleblower Report is disingenuous and hypocritical. To the extent the House lacks direct evidence of Mr. Trump’s intent and conduct toward Ukraine as alleged in the Whistleblower Report, Mr. Trump has prohibited people with direct knowledge from testifying as part of the House impeachment inquiry. Bolton. Pompeo. Mulvaney. Eisenberg. Perry. Ellis. Blair. McCormack. Kupperman. Vought. Duffey. Giuliani. Secretary Pompeo and others have instructed their departments not to comply with records requests or subpoenas.
[Acts of obstruction, themselves, may qualify as separate crimes, contempt or impeachable conduct. Why? Because they interfere with the truth-finding function and, in this instance, with the Article I Branch’s constitutional oversight responsibilities of the executive. Under related legal principles, fact finders are allowed to draw negative or adverse inferences from obstructive conduct. They can conclude that had the person who refused to testify or produce records — the person who obstructed — complied with the subpoena, the evidence would have been harmful to the person responsible for obstruction.]
Fifth, direct (non-hearsay) evidence in support of the allegations of wrongdoing in the Whistleblower report is piling up, despite Mr. Trump’s efforts to obstruct. This section needs a little analysis.
First, some out-of-court statements are offered not for the truth of what is set forth in the statements themselves but rather to show what the declarant did — “Mr. Trump instructed me to tell President Zelensky that the United States would not release military aid before the Zelensky announcement on CNN that Ukraine was launching an investigation of the Bidens,” or the declarant’s state of mind — “He told me Ukraine, and not Russia, meddled in the 2016 presidential election.” Unless the purpose of offering this latter statement is to prove Ukraine, and not Russia, actually meddled in the 2016 presidential election, the statement can come into evidence as non-hearsay if it is otherwise relevant. Maybe it shows the defendant was impaired or delusional or misinformed. Maybe it shows motive or why he behaved in a certain way.
Second, Admissions Against Interest: Under the Federal Rules of Evidence, some out-of-court statements being offered for the truth of what the statement asserts are not hearsay and come into evidence if they are otherwise relevant. The Federal Rules of Evidence consider as reliable a prior statement made by someone who is a party to the case if the statement was adverse to or against his own interests. Courts believe that people do not say bad things about themselves or admit to wrongdoing unless those things are true. So, those out-of-court statements by a defendant/declarant are carved out of the definition of hearsay and are admissible evidence. Moreover, admissions against interest by an agent on behalf of a principal may also be admissible, viz., Sondland.
That definition is as follows:
“Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: . . .
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(c) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed . . . .”
Third, an admission against interest — a self-incriminating statement — by one person typically would could not be admitted as evidence against another person because it would be hearsay against anyone else. When someone is charged with conspiracy, however, admissions against interest by one conspirator can be used against other members of the conspiracy. As the Federal Rules of Evidence further explain:
“A statement that meets the following conditions is not hearsay: . . .
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.”
If the House issues articles of impeachment for a trial in the Senate, the Senate has its own set of rules known as RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON IMPEACHMENT TRIALS. Section VII provides in part:
“And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate. Upon all such questions the vote shall be taken in accordance with the Standing Rules of the Senate.”
I have not yet determined whether the Senate would strictly adhere to the Federal Rules of Evidence in an impeachment trial of Mr. Trump. Alleging conspiracy against Mr. Trump in the articles of impeachment, however, would increase the likelihood that the Senate could use other conspirators’ self-incriminating statements against Mr. Trump. [Yes, the government brings conspiracy charges against defendants where the co-conspirators are not charged but whose conduct is identified in the indictment.] Those persons could include Giuliani, Pompeo, Perry, Mulvaney, Eisenberg and/or Sondland. So if any of those persons, in furtherance of the conspiracy, made a self-incriminating statement that was overheard by a third person, that incriminating statement could be admitted through the testimony of that third person as evidence against all conspirators, including the target Mr. Trump.
The body of direct evidence tying Mr. Trump to the conduct alleged in the Whistleblower Report is growing. I would likely have to update the list on a daily basis to stay current. Fortunately, major news organizations are doing that. The Washington Post is keeping an updated impeachment calendar.
Some of that evidence includes:
• The report of the “perfect” “do us a favor though” telephone call between Trump and Zelensky of July 25, 2019, and the developing evidence concerning how the read out/transcript was handled by the White House and others. A recent Washington Post article expounded on this: “Senior national security official ties key official more closely to Trump on Ukraine in impeachment inquiry. Tim Morrison, a former White House national security official, told House investigators in sworn testimony that he feared leaks of the contents of the July 25 call between President Trump and Ukrainian President Zelensky would be damaging, so he recommended restricting access to the transcript.”
• People who listened in on the call including Alexander Vindman and Pence aid Jennifer Williams who took notes. These people can testify to their recollection of what was said on the call. It would come into evidence as direct evidence of misconduct and possible admissions by Mr. Trump against his own interests.
• The evolving testimony of Ambassador Sondland, who acted on behalf of Mr. Trump and appears to have been at the center of the Trump/Ukraine events. Indeed, his conduct and even his statements may be directly attributable to Mr. Trump or his admissions against interest may be admissible against Mr. Trump.
• Ambassador Taylor’s testimony this past week also disclosed a telephone call between Mr. Sondland and Mr. Trump on July 26, 2019, the day after the “perfect” Trump-Zelensky “do us a favor though” call. David Holmes, a political counselor in the US Embassy in Kiev, witnessed and overheard the conversation. Mr. Holmes testified in a closed door deposition on November 16, 2019 and shared that two additional people witnessed and overheard the conversation. A recent Washington Post article expounded on this: “Impeachment witness provides firsthand account of hearing Trump demand ‘investigation’ of Bidens by Ukraine. The closed-door testimony on Friday directly implicates Trump in an alleged scheme at the heart of the impeachment probe. It followed damaging public testimony by the former ambassador to Ukraine.”
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**Richard’s list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers