Law professor disputes Trump team’s claims
President Trump says he has the right to confront his whistleblowing accuser, or accusers. Rudy Giuliani says his dealings with Ukraine on Trump’s behalf are protected by attorneyclient privilege. Sen. Lindsey Graham says a whistleblower’s report based on other people’s conversations is hearsay and can’t be used as grounds for impeachment.
But under wellestablished legal principles, Trump and Graham are clearly wrong, and Giuliani is probably offbase as well, says David Sklansky, a Stanford law professor and former federal prosecutor.
“These are disorienting days for everyone, but the past week has been particularly odd for those of us who teach and write about evidence law,” Sklansky, codirector of Stanford’s Criminal Justice Center, said in a posting on the law school’s Legal Aggregate blog. In the recent Twitter posts by Trump and his allies, he said, “evidence law got mangled.”
Impeachment is essentially a political process. As thenRep. Gerald Ford put it in 1970, during an unsuccessful effort to impeach Supreme Court Justice William Douglas, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
But the proceedings have their own legal standards, based on congressional rules and practices, and writings like Sklansky’s can serve as a manual for the media and the public as they await the first presidential impeachment hearings in 20 years.
President Trump: After the first whistleblower complaint surfaced, claiming Trump had pressured Ukraine’s president to investigate his potential 2020 election opponent, former Vice President Joe Biden, the president tweeted, “Like every American, I deserve to meet my accuser.” He also suggested that the whistleblower and his sources were spies or traitors who should be executed.
Sklansky said the Constitution guarantees the right to confront one’s accuser, “but only in a criminal trial . ... There is no right to confrontation in a criminal investigation, no matter how serious the charges.” And federal law, he said, explicitly allows whistleblowers to remain confidential while their complaints are being investigated.
“The whole point of whistleblower procedures is to allow individuals to report misconduct without fear of reprisal,” to protect them from “the kinds of threats and intimidation that have been filling the president’s Twitter stream,” Sklansky wrote.
Lindsey Graham: The South Carolina Republican is chairman of the Senate Judiciary Committee, which may be assigned to hear testimony if Trump is impeached by the House. Graham responded to the whistleblower complaint by noting that much of it was based on reports from unidentified government officials — hearsay, in legal terms.
“You can’t get a parking ticket conviction based on hearsay,” the senator tweeted. “This whole thing is a sham.”
Democrats have pointed out that the whistleblower’s account was consistent with Trump’s version of his conversation with Ukraine’s president. Sklansky said Graham was also misstating hearsay laws.
While most types of hearsay evidence are barred at criminal trials, where witnesses must instead describe only what they’ve personally seen or heard, “the hearsay rule doesn’t apply to police investigations or grand jury proceedings, and it most definitely does not apply to whistleblower complaints,” Sklansky wrote.
A parking ticket can be based at least partly on hearsay, he said — for example, if a police officer relied on a colleague’s report that a car had been parked in a particular space many hours earlier. Grand jury indictments are often based on an officer’s hearsay testimony about reports the officer had received from private citizens. And the Trump whistleblower, Sklansky noted, said some of his account was based on firsthand observations.
On Sunday, Graham told Fox News that if the House impeaches Trump and sends the charges to the Senate for trial, he will require all whistleblowers to testify in public, under oath, “so the public can judge their credibility.”
“It seems like an effort to intimidate people from coming forward,” Sklansky said in an interview.
Rudy Giuliani: The former New York mayor, now a personal lawyer for Trump, was sent subpoenas by House Democrats last week demanding information on his role in urging Ukraine to investigate Biden. Giuliani responded that the material may be shielded from disclosure by “attorney client and other privileges,” a claim Sklansky described as “probably baseless.”
The right of secrecy would apply only if Giuliani was serving as a lawyer “and not as a freelance lobbyist,” Sklansky wrote, citing Giuliani’s own statement to the Atlantic that “I’m not acting as a lawyer.” Even if Giuliani was playing a legal role, Sklansky said, attorneyclient privilege would shield only his confidential talks with his client, Trump, and not his discussions with the Ukrainians.
And lawyerclient communications lose their shield of confidentiality, Sklansky noted, “when they are made in an effort to carry out a crime or fraud.”