Due Process in the Sandbox

House Impeachment Committee looking for hearing room from Pixabay

Impeachment is being obscured by politicians throwing sand.

President Donald J. Trump is not the first person with power in the federal bureaucracy to take on undermining the Whistleblower Protection Act of 1989. Litigation under that law had to be brought in the D.C. Circuit and that court has been almost uniformly hostile to whistleblowers, chipping away at a law it plainly disfavors.

The last major amendment seeking to strengthen whistleblower protection was signed by President Obama in 2012 for two purposes: to protect whistleblowers working in intelligence from loss of their security clearances and to extend jurisdiction to hear cases under the law to the rest of the federal judiciary.

Having worked in intelligence, I am here to tell you that loss of your security clearance is a fate worse than straight up firing. If you lose your clearance for cause, your government can restrict your travel until satisfied you are no threat to national security.

If you are allowed to remain with your employer, your duties would become whatever the local equivalent is to mucking out the stables. You might temporarily lose custody of your passport. The status of a person who has lost a security clearance is lower than a snake’s belly.

Speaking of snakes, it was predictable that President Trump would be opposed to the Whistleblower Protection Act even if nobody was blowing a whistle — simply because President Obama favored it.

But somebody has blown a whistle, claiming that the Trump administration was shaking down the Ukraine government for support in the 2020 election. The presidential tweets have been busy trashing the whistleblower in the Ukraine affair without even knowing who he is trashing.

For weeks, Mr. Trump has repeated his demand that the whistleblower be identified. He has expressed the opinion that revealing the whistleblower’s identity would sink the entire impeachment investigation.

Here in fact-based reality, the identity of the whistleblower does not matter. What matters is whether his or her story checks out, which it does so far.

Trump has claimed on Twitter that the whistleblower is a partisan, a “Never Trumper.” The people who called their movement Never Trump were Republicans — mostly public intellectuals — who were interested in saving the Republican Party from Mr. Trump. I use the past tense because “never” referred to the 2016 election.

Foreign Service Officers, like military officers, do not admit affiliation with a political party. There’s no written rule as far as I know; it’s fundamental to the culture.

U.S. diplomats are charged to implement U.S. foreign policy — whether or not they agree with the policy. The U.S. military exists to kill the enemy and break his stuff, but it’s the civilian leadership that defines “enemy.”

There is in fact a rule of criminal law (actually procedure) that does what Mr. Trump claims — requires the judge or jury to disregard everything “downstream” from a lie. His claim is apparently that identifying the whistleblower would enable him to show a lie. Even if that were so, there’s no “downstream.”

The rule is called the “fruit of the poisonous tree” doctrine. The exclusionary rule operates to keep away from the fact-finder all evidence that came from governmental error that the defense is able to demonstrate. Mr. Trump wants to claim the entire impeachment is fruit of the poisonous tree — the poison being some sort of lie in the original complaint.

Even if the fruit of the poisonous tree doctrine applied to an impeachment, it does not confer a license to lie. If the government is sitting on credible evidence it can’t use because of how it was acquired, that evidence will roll right in to impeach any lies the defense tries to sell.

This is not a criminal prosecution. It’s an impeachment. If Mr. Trump is impeached and put on trial in the Senate, he will be entitled to due process of law. Lawyers love the term “due process of law” because it’s slippery as a squid.

In the impeachment of a POTUS, it’s not entirely clear what process is due. That’s because it’s only in modern times impeachment has been just the pursuit of partisan politics by other means. There is a lot more at stake in an impeachment than in even the most serious criminal case — say, shooting somebody in broad daylight on Fifth Avenue in New York.

Russia has been our primary adversary since WWII in the epic struggle between aspirations to democracy and aspirations to benevolent autocracy, both traveling under the slogan “power to the people.”

The people tried to seize power in Hungary in 1956 and Czechoslovakia in 1968, only to find the idea of democracy crushed under the treads of Soviet tanks. Both of these instances of people grasping to get their sovereignty back were perfect opportunities to wage war against the Soviets in a context where the locals would be on our side. That we did not bite is pretty persuasive evidence that our intent was not aggressive.

Sir Winston Churchill coined the metaphor “iron curtain” to describe the borders of the Soviet vassal states. The closest the iron curtain came to physical reality was the Berlin Wall.

In spite of what Mr. Trump would call a “big, beautiful wall” patrolled by troops with shoot to kill orders, East Germany bled population, as did the rest of Eastern Europe. I was at the time persuaded by a rhetorical question:

If the borders were opened, which way would the people go?

Our imperfect democracy held powerful attraction for people kept by force on the other side of the border. A significant part of that force was the Soviet KGB (Komitet Gosudarstvennoy Bezopasnosti or Committee for State Security), their version of the CIA (Central Intelligence Agency) except that it had to suppress domestic dissent in addition to the international spying and dirty tricks that mirrored the CIA.

The kleptocrat who currently holds power in Russia by jailing or murdering anybody who stands against him is a former KGB officer, Vladimir Putin. Under Putin, Russia has become an ongoing threat to any former Soviet Republics that experiment with democracy.

The worst nightmare for world peace would be if Mr. Putin sent troops into the Baltic states, all of which are NATO members and therefore owed defense by the U.S. and most of western Europe.

Since Putin took over Russia, the rivalries of the Cold War have returned. This is the context in which Russia unleashed armies of bots to disrupt U.S. elections. This is also the context in which Russia’s preferred candidate will be impeached, if he is, for soliciting aid from foreign governments for his reelection campaign in 2020.

Whether the leader of one adversary will be picked — even in part — by the other side is a much bigger deal than any ordinary crime. While the stakes could not be higher in terms of the public interest, the accused does not face the loss of his life or the loss of his freedom — merely the loss of his job.

Mr. Trump speaks as if that process which is due to him is exactly the same process that would be due if he were charged with a crime. That is far from clear. This country does not do enough impeachments to know a lot about them.

The question is complicated by the unlikelihood of the Supreme Court getting involved in an impeachment. It is the ultimate “political question.” I do not think this means Congress can do anything, although it might mean that.

No matter what the courts do, it would be unwise for Congress to impose an obvious raw deal on the President, because the result would lack legitimacy. If the impeached President is Donald Trump, he will call it a raw deal no matter what the procedures are, so giving him a lot of due process is a good idea.

Still, it’s hard to imagine the identity of the whistleblower being even relevant, much less necessary. The government did not violate anybody’s privacy because of anything the whistleblower said.

Lindsey Graham claimed in a TV interview that there is no anonymity in the criminal process. That’s simply incorrect. Most of the search warrants I have signed were based on the word of an anonymous informant. It is the law that the affidavit presented by the government must include “indicia of reliability” of anonymous informants.

In addition, is there a major American city where the police department does not maintain an anonymous tip line? The police can do anything to investigate an anonymous tip that does not violate anybody’s privacy rights. Do you really want to live under a system where you cannot tip off the police without becoming part of the case? How would you feel about turning in an organized crime boss?

Sen. Graham went on to say that Mr. Trump, like any criminal defendant, has the right to confront the witnesses against him. That is true, but the whistleblower — like the anonymous informant in most search warrants — is unlikely to be “a witness against him.” If and when the anonymous informant testifies in front of the judge or jury (in an impeachment, the Senate), he or she must submit to cross-examination.

Senator Lindsey Graham, Republican of South Carolina, is either ignorant of criminal practice to an astonishing degree or he is throwing sand in the eyes of the voters on behalf of the POTUS. Sen. Graham has served as an Air Force JAG officer, where he represented both the defense and the government, so it’s hard to credit his nonsensical statement to ignorance.

That handful of sand hits before the sand that was quid pro quo is washed away. This is not a bribery case. The solicitation of anything of value for a U.S. political campaign is a crime, whether or not there is an offer to pay for it. But, so far, there are six witnesses who have described a quid pro quo on the record and under oath. Those still throwing that sand have not kept up with the latest line.

It was the Trump defenders who were demanding release of transcripts from the testimony before Congress. It was those transcripts that destroyed the quid pro quo argument. Once again, the demand was so much sand-throwing.

Trump fans have in the past complained of bringing in the witnesses “behind closed doors,” a common practice in criminal cases epitomized by the secret nature of the grand jury. As the hearings become public, that bit of sand in the eyes will exceed its shelf life.

There are some due process questions that perhaps should be discussed in the context of impeachment, and all the sand throwing argues for having the discussion before anybody’s ox is gored.

There is a constitutional exclusionary rule in a criminal case. A few states extend this to civil cases by statute. Should there be an exclusionary rule in an impeachment?

In a criminal case, it is unlawful to use a defendant’s silence against him and the jury must be so instructed upon request. Some defense lawyers do not request the instruction, deeming it unwise to call the attention of the jury to the defendant’s silence.

In a civil case, it is lawful to assume that any evidence under control of a party not produced would have hurt that party if it had been produced. (A party to a civil case can avoid testifying by absenting himself from the trial, says the old retired guy who learned the hard way as a young lawyer to always drop a subpoena on a party you want to call.)

Congress, instead of litigating over government employees ignoring subpoenas on Mr. Trump’s orders, intends to use the failure to appear as a circumstance against Trump. It’s one thing to use that conduct to show obstruction of Congress; it’s quite another to indulge presumptions about what the testimony would have been had the subpoena been honored.

A witness in a civil case can refuse to answer a question on the ground that an answer might tend to incriminate the witness (AKA the Fifth Amendment), but the import of the silence can be argued to the fact finder. That is not allowed in a criminal case.

What should the rule be in an impeachment, where the stakes are much heavier for the nation but much lighter for the POTUS?

The United States has not become enough of a banana republic to put leaders on trial for their lives or their freedom in an action to remove them from office. Imposing criminal penalties would require a criminal indictment and a fair trial with all the protections in our constitution and laws.

It should be possible to discuss the issue of what process should be due while leaving the sand on the ground.

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store