The ‘Whistleblower’ and the President’s Right to Present a Defense
President Donald Trump speaks to reporters on the South Lawn of the White House, November 8, 2019. (Siphiwe Sibeko/Reuters)
If Trump is impeached, he can build a strong case against conviction — but he might be wiser not to.
Right church, wrong pew, as we Catholic types are wont to say.
As I tried to explain in Thursday’s column, Rand Paul is wrong to insist that the Sixth Amendment’s confrontation clause demands that the so-called whistleblower be unmasked and publicly questioned. That does not mean, though, that Senator Paul’s general idea (that the “whistleblower” should testify) is wrong; nor does it mean that the Constitution’s guarantee of trial rights is irrelevant.
The right to present a defense, also vouchsafed by the Sixth Amendment, is the guarantee on which Paul and the rest of the president’s supporters should focus.
This comes with the same caveats elaborated on Thursday. The Constitution vests the House and Senate with plenary authority over their respective impeachment proceedings (the House to decide whether to file articles of impeachment, the Senate to try the case). No court has the power to make either legislative chamber afford a particular quantum of due process.
That said, impeachment is inherently political. Here, it has been launched when we are less than a year out from an election in which the American people are supposed determine for themselves whether the president should keep his job. By the time impeachment has run its course, we could be just a few months from Election Day. Apparently, though, the political class is intent on end-running the sovereign, attempting to remove President Trump on its own. To pull that off, it will need to convince the country that (a) it has grounds so extraordinarily serious that Trump must be ousted forthwith and (b) the procedures under which it impeached were fundamentally fair.
I don’t think they have a prayer of demonstrating the former, such that two-thirds of the GOP-controlled Senate would be spurred to remove the president. (Trump’s approval rating among Republicans is hovering around 90 percent.) As for the latter concern, due process, there must be some and it must be meaningful — not because it is legally mandated, but because it is politically essential.
This is why many of the more pragmatic Democrats knew impeachment was a bad idea. As a practical matter, they don’t have close to the votes to remove, so it’s doomed to fail. The public knows it’s doomed to fail and may well resent Democrats for gratuitously putting the country through it. If Trump is denied due process, the proceedings will look like a kangaroo court and Democrats will be blamed. And if Trump is afforded due process, the case he presents may damage Democrats come November.
We do not have a ton of prior impeachment experience to go on, but the presidents in each episode were afforded the right to present a defense — both in the House proceedings leading to articles of impeachment and in the Senate trial.
The right to present a defense is importantly different from the right to confront the House Democrats’ case for impeachment.
As I noted in Wednesday’s column, the confrontation right emphasized by Senator Paul only allows the accused to cross-examine whatever witnesses the prosecution chooses to call in making its case. It does not give the accused a right to cross-examine every source who may have provided accusatory information, even sources whom the prosecutor does not call. Consequently, if the Democrats believe (as they do) that they could establish their case for articles of impeachment without summoning the so-called whistleblower as a witness, the president and his Republican defenders would have no right to call the whistleblower merely to cross-examine him on the statements made in his hearsay complaint.
By contrast, the right to present a defense is more extensive. Broadly speaking, it empowers an accused to do two things: (1) pointedly discredit the prosecution’s version of events, whether through cross-examination of the prosecution’s witnesses or presentation of the accused’s own witnesses, and (2) present the accused’s own witnesses and evidence in order to prove facts and theories that favor the accused and cast doubt on the worthiness of the prosecutor’s case.
In most any criminal case, courts will give the accused a decent-sized berth to prove and argue that the accused was set up by the investigators; or that the investigative procedures used were underhanded or otherwise skewed against the accused. Here, the president will want to persuade the factfinders (and the country) that Democrats have conspired with like-minded officials in the bureaucracy, particularly in the intelligence agencies (including the FBI and the Justice Department), to paralyze and, if possible, shorten the Trump presidency.
Most defenses based on government misconduct do not get very far. They tend to be fabricated, overblown, or focused on prosecutorial misconduct that is far afield from the charges against the accused. In this instance, however, the president has a great deal to work with.
Prominent Democrats and Trump detractors have been quite brazen in their public rhetoric about Trump (including, as is now being reported, the so-called whistleblower’s counsel, who has spoken explicitly about a “coup” by bureaucrats). Moreover, the Justice Department inspector general’s report on the Clinton emails investigation outlines in wince-inducing detail pervasive anti-Trump bias on the part of government investigators.
The same IG is about to release a report specifically dealing with investigative irregularities in the Trump-Russia investigation. Of course, we do not yet know what that report will yield (and even less what will come of the Barr/Durham probe of the Trump-Russia investigation’s origins). We do know, though, that the FBI and Justice Department represented to the Foreign Intelligence Surveillance Court that the FBI believed Trump’s campaign was likely complicit in Russia’s hacking operations to influence the 2016 election. And we know that the Obama administration — undoubtedly in collusion with foreign intelligence services — ran informants against Trump-campaign officials in an effort to establish a Trump–Russia conspiracy. Finally, we know that the president was repeatedly told that he was not a suspect of the FBI’s investigation, under circumstances where he appears to have been the central suspect.
After years of very aggressive, expensive investigation — by a special counsel who staffed his investigation with notorious partisans — no Trump–Russia conspiracy was found. Moreover, the FBI and the Justice Department on four occasions obtained warrants to monitor a former Trump-campaign adviser, telling the federal court under oath that he was a clandestine agent of a foreign power and a key cog in the Trump–Russia cyberespionage conspiracy; yet that adviser, Carter Page, was never accused of any crime, much less the traitorous misconduct outlined in the warrant applications.
The president and his supporters will want to lay much of this out in his defense case against any impeachment allegations. It is clearly relevant on the question whether the Democrats are to be believed that the Ukraine episode is what they portray it to be: a matter of such grave severity that Congress should remove the president from power just ahead of an election. The fact finders and the public are entitled to consider whether Democrats are blowing the Ukraine episode way out of proportion, just as they did with the collusion caper. Indeed, in the Clinton impeachment case, the president and his Democratic supporters were permitted to press the case that Republican claims about the egregiousness of his misconduct were overwrought, as evidenced, for example, by Clinton’s high approval ratings.
In the presentation of his defense, President Trump would thus seek to call the “whistleblower” as a witness (a hostile one, no doubt). His counsel and Republicans would proceed to try to demonstrate his connections to senior Democrats with intelligence-community ties who have been scurrilous in their public comments about the president. They would grill him on allegations that he is among the intelligence-community officials who leaked information in a manner intended to cast the president in a poor light. And they would press him on the preparation of his hearsay complaint — his consultation with an Adam Schiff staffer, his close collaboration with overtly anti-Trump lawyers, and so on. I might even have him read aloud from Schiff’s wannabe Godfather IV caricature of the Trump-Zelensky conversation and ask whether he helped the chairman’s staff write it.
It is in connection with the president’s right to present a defense, not his confrontation-clause right, that Senator Paul and the president’s defenders should frame their argument that the “whistleblower” should be subpoenaed to testify at public impeachment hearings.
A cautionary note. When I was a prosecutor, I loved defense cases. They were often not very well thought through — just an effort to dirty up investigators toward no coherent end, or toss in some favorable details about the accused that were quite beside the point of the charges. A defense case can open the door to prosecutors to place before the factfinders a great deal of unflattering information about the accused that would otherwise have been excluded as irrelevant. Defense lawyers tend to be much better at dismantling the prosecutor’s case for conviction than at presenting their own affirmative case for acquittal. When a defendant proceeded with an extensive defense case, I almost always ended up concluding that it had helped me more than it helped the defendant.
Presenting an affirmative case would not be without risk for the president. If the Democrats’ case for impeachment is weak and has no chance of success, he would probably be better advised to leave well enough alone. Nevertheless, if the president wants to argue that the bureaucracy has had it in for him from the start, and has coordinated with Democrats to undermine him, he has an unusual embarrassment of riches to exploit.
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