“Due process.” “The right to confront your accuser.” “Hearsay.”
In what can only be described as a cynical ploy, President Donald Trump and his supporters keep tossing out legal terminology to attack those who seek to hold him accountable for alleged misconduct in the impeachment inquiry currently underway in the House of Representatives. The idea seems to be to confuse members of the public by using legal terms that sound valid, but have no application to the matter for which they are cited.
Trump claims on Twitter that Democrats believe that they can “impeach the President, without due process or fairness or any legal rights.” White House Counsel Pat Cipollone argues that the impeachment inquiry “violates fundamental fairness and constitutionally mandated due process.” Senator Lindsey Graham says that “You can’t get a parking ticket conviction based on hearsay.”
All those terms may sound vaguely familiar from high school civics classes and true crime novels, but they do not apply here despite what Trump and his defenders suggest.
Here, then, is your guide to discerning talking points from truth when it comes to legal jargon.
Talking point: The impeachment inquiry violates due process because the House did not vote to approve it before it began.
Truth: The Constitution gives “the sole power of impeachment” to the House of Representatives. The House may decide what rules it will use in impeachment, with no requirement that it must take a vote before initiating an impeachment inquiry. In fact, last week a federal judge issued an opinion in which she described this vote requirement argument as politically “appealing,” but “fatally flawed.” Nonetheless, the House took such a vote on Thursday, perhaps in an effort to silence these critics. Are the critics satisfied now? No! They say that the vote just proves that the Democrats knew that the inquiry had been invalid without a vote!
Talking point: President Trump is being denied the right to confront witnesses against him and present evidence.
Truth: Again, there is no requirement for the House to provide any of these protections, at least not at this inquiry stage of impeachment. If we are to look by analogy to the criminal justice system, the impeachment inquiry would be parallel to the indictment stage. In a criminal case, the facts are presented to a grand jury. The presentation is limited to the prosecution case. The defense does not attend grand jury sessions, cross-examine witnesses or present evidence. The grand jury then votes on whether to approve an indictment, which is merely a charge. If so, then, and only then, does the case proceed to trial. It is there that a defendant may call witnesses and cross-examine witnesses against him. President Trump is not being denied any rights because he is unable to call and question witnesses at the investigative stage.
Talking Point: The impeachment inquiry is improper because it is being conducted in secret.
Truth: In criminal cases, the investigation is conducted in secret for many reasons, including preventing witnesses from coordinating their stories. If the testimony is public, then witnesses can learn what prior witnesses have said, and then tailor their own testimony accordingly. Keeping the proceedings secret ensures that witnesses are incentivized to tell the truth. The subsequent trial is held in the open so that the public can have confidence in the process. The impeachment inquiry is similarly at this investigative stage and need not be conducted in public, where its integrity could be undermined.
Talking point: The impeachment inquiry is relying on hearsay because the whistleblower did not have first-hand information.
Truth: Hearsay is an out-of-court declaration used to prove the truth of the matter asserted. With some exceptions, courts require first-hand accounts in court by witnesses who observed the facts themselves. The purpose of the hearsay rule is to promote reliability in witness testimony.
It is true that the whistleblower whose complaint started the inquiry indeed provided hearsay information that he learned from others. His information is not being used at trial, however. The parallel to the whistleblower in the criminal world is a tipster, who alerts police that a crime has been committed. The police then conduct an investigation, in which investigators talk to eyewitnesses and collect evidence, such as documents and other tangible things. This direct evidence is the evidence that is used at trial. The tipster does not testify at trial if he is not a first-hand witness.
Here, the whistleblower alerted Congress that criminal or impeachable conduct may have occurred. The House is now gathering evidence by interviewing the officials with first-hand information and obtaining documents that could tend to reflect the events under investigation. That is the evidence that will be presented at a trial before the Senate, not the testimony of the whistleblower.
Talking Point: The phone call between Trump and Ukrainian President Volodymyr Zelensky contained no quid pro quo.
Truth: Literally, quid pro quo means “this for that.” This myth can be debunked on three levels. First, the call is not the full scope of the misconduct. Impeachment investigators need to explore the meeting and calls between Ukrainian officials and Trump’s personal lawyer Rudy Giuliani, U.S. Ambassador to the E.U. Gordon Sondland, and other diplomats to understand the full scope of the negotiations, and determine whether there was a quid pro quo, among other things.
Second, impeachable offenses do not all require evidence of an illegal quid pro quo. The Constitution provides that a president may be impeached for “bribery, treason, and other high crimes and misdemeanors.” Impeachment of Trump based on an abuse of power by inviting foreign election interference would require no quid pro quo whatsoever.
Third, there actually is evidence that Trump was trading military aid for election help. This exchange would be a quid pro quo for purposes of bribery, which includes demanding a thing of value in exchange for the performance of an official duty. A quid pro quo need not be explicit, and usually isn’t. Here, the demand for an investigation into the Bidens in exchange for receiving military aid may very well be a quid pro quo for purposes of bribery, an impeachable offense.