The Confrontation Clause found in the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to confront witnesses against them (1). A few days ago my children, 19 and 23 years old, told me and my wife that the impeachment process was unfair because Trump has not had the opportunity to confront the "whistle-blower." I went through with the two of them exactly what I am sharing with you today.
Let's start with the presumption that impeachment is similar to a grand jury proceeding which yields an indictment. Grand Jury proceedings are closed door proceedings and the defendant is not entitled to be present nor have counsel present. Indictments then make their way to a prosecutor who initiates a criminal case. During the life cycle of the criminal case there comes the ultimate test of the evidence, a trial.
In an impeachment proceeding, the House of Representatives is tasked with investigating and determining whether articles of impeachment should be issued. Similar to a Grand Jury, the House can operate behind closed doors and does not decide the ultimate outcome. It merely issues an "indictment" which is labelled "Articles of Impeachment." A quick note on the closed door depositions---Senator Lindsey Graham (R-S.C.) vehemently defended closed door hearings during the investigation of President Clinton but now believes the same process is unfair to President Trump. Senator Graham's division within himself should alarm all citizens; that's not a conservative or liberal issue; that's called integrity. Senator Graham is a man who has shown us his concern is for himself and his party, not his country. Further, the Republican Party, Senator Graham's party, in 2015, drafted the Rules of Procedure the current Democratically controlled House of Representatives is following. But I digress.
As I said earlier, the Sixth Amendment contains the Confrontation Clause. It guarantees a criminal defendant the right to confront the witnesses against him. This confrontation is done through cross examination. It has been said that cross-examination is the greatest legal engine every invented for the discovery of the truth (2). The fact finder in a trial, in this case the Senate, is tasked with assessing the reliability of witness testimony and the Constitution requires that reliability be tested in a particular manner; by testing it in the crucible of cross-examination (3).
So, President Trump and his legal team are on sound footing, right? Not So Fast, My Friend (4)! The whistle-blower came forward with information gained from other sources. The whistle-blower has no personal knowledge of the matter. That's right, zero personal knowledge. Rule 602 of the Federal Rules of Evidence would preclude the whistle-blower from taking the stand. Rule 602 requires that a witness have, and prove, personal knowledge of the matter before they are even permitted to testify. The House of Representatives knows this and by the way, so does the President's legal team. The House has deposed witnesses with personal knowledge of the matter. Those are the folks who will be testifying at a Senate trial, not the whistle-blower. In fact, with testimony from witnesses with personal knowledge, the President's repeated calls to "out" the whistle-blower could likely be seen as harassment. There is no doubt that the President's actions, and those supporting him, in this endeavor will have a chilling effect on our nation's ability to uncover government abuses in the future.
If Articles of Impeachment are issued, the Senate would be required to conduct a trial to determine whether President Trump should be removed from office. Vice President Pence, while normally the leader of the Senate, would not preside over the impeachment trial. That duty rests with Chief Justice John Roberts. Nevertheless, the trial in the Senate is where witnesses come in. This is where the right to confront witnesses exists. It does not exist in the House Investigation and it never has. You should look that up; it never has.
Benjamin Franklin was asked as he left the Constitutional Convention what type of government we had. Franklin replied "a Republic, if you can keep it." This is how critical this time is for our nation. Abraham Lincoln, likely the fiercest Presidential advocate for America (all of America), in our history, warned that "America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves." I believe those words ring true to this day. With Senators arguing one thing is proper for the opposing party but unfair to their own party, it is clear to see that we are destroying ourselves from the inside. Should not the same rules apply to each party no matter who controls the Legislative branches or sits in the Oval Office?
I am deeply concerned for our nation. There are a number of citizens who hear the sound bites from one party or the other and look no further. They vote for Trump because he talks like them. No matter that Trump has proven himself, at best, incapable of stating basic facts, and at worst, a habitual liar. They vote for Bernie Sanders because he wants everyone to have everything for free. No matter that nothing is "free." Someone, somewhere is footing the bill.
I miss Walter Kronkite. I miss Larry Munson, too. But most of all I miss the inquisitive nature of our society. Dig deeper than a sound bite. Ask yourself the tough questions. Discuss politics with your friends and family; it should not be a taboo topic. Then go vote for the candidate that you believe is best suited for the job.
(1) United States Constitution, Amendment VI
(2) Lilly v. Virginia, 527 U.S. 116 (1999)
(3) Crawford v. Washington, 541 U.S. 36 (2004)
(4) Lee Corso, ESPN College Gameday