Impeachment Invokes Another Rule

The Impeachment from Yale University Digital Commons

The first one is the Rule of Law, to which even presidents must answer.

President Trump tweeted the following complaint this week:

Democrats are allowing no transparency at the Witch Hunt hearings. If Republicans ever did this they would be excoriated by the Fake News. Let the facts come out from the charade of people, most of whom I do not know, they are interviewing for 9 hours each, not selective leaks.

I will refrain from riffing on the sheer hypocrisy of this POTUS valorizing “transparency,” in the interest of not starting on a digression that would eat my major point. Instead, I offer from the Federal Rules of Evidence, Rule 615, titled “Excluding Witnesses”:

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

© a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

There is a reason for Rule 615, and it is the same reason the House is examining impeachment witnesses behind closed doors. “Transparency” is a term with some political currency, but it would be more to the point that Mr. Trump has a due process right to confront the witnesses against him. Nothing in that due process right requires the government to refrain from questioning witnesses privately. That’s exactly what FBI agents are doing when witnesses wind up charged with lying to the FBI.

An illustration of the evil the House seeks to avoid is in a texting conversation between Bill Taylor, a former U.S. ambassador to Ukraine and longtime Foreign Service officer who is currently the chargé d’affaires in Ukraine and Gordon Sondland, Ambassador to the European Union, a position that he bought with a million dollar donation to Mr. Trump’s inaugural committee — fair and square, cash on the barrelhead.

Ambassador Sondland made some wonderfully suggestive remarks about “deliverables” from Ukraine in exchange for what newly elected Ukraine President Volodymyr Zelensky desperately wants, anti-tank weapons to use against Russian invaders and a summit with President Trump as a public indication his country is still under U.S. protection.

Sometimes silence can be probative, though. Think of the famous 18 minute gap at a crucial moment in one of the Watergate tapes. Note the date and time on this text from Taylor to Sondland:

12:47 AM SEPT 9
As I said on the phone, I think it’s crazy to withhold security assistance for help with a political campaign.

In the midst of a brisk back-and-forth between the two men, there is suddenly radio silence from Sondland. For five hours. “I’ll see your 18 minute gap and raise to five hours,” says Trump impeachment to Nixon impeachment. Then Sondland picks up the thread as if there had been no delay:

5:19 AM SEPT 9
I Believe you are incorrect about President Trump’s intentions. The President has been clear no quid pro quo’s of any kind. The President is trying to evaluate whether Ukraine is truly going to adopt the transparency and reforms that President Zelensky promised during his campaign I suggest we stop the back and forth by text If you still have concerns I recommend you give Lisa Kenna or S a call to discuss them directly. Thanks.

While Sondland’s tardy reply stinks of having lawyered up, that’s apparently not what happened. According one of those leaks from the White House that leaks like a sieve, it took five hours for Sondland to get a telephone call through to the president of the United States — something most people could not accomplish at all.

What happened after Sondland’s call went though, according to a leak at the other end — one of the leaks Trump was complaining about — was that Trump and Sondland got their story together.

It’s not exactly “their” story. It’s Trump’s story, since Sondland is not facing impeachment. Sondland, unlike Taylor, is not a career foreign service man. He’s not likely to perjure himself for Trump, for whom loyalty is a one way street headed Trumpward, but it’s not perjury to lie to the foreign service.

Rule 615 exists to prevent witnesses from getting their stories straight on the fly — witness B shades his testimony to jibe with what witness A said if you go for “transparency.”

The purpose of a deposition is to “lock in” testimony. That is, when the witness is under oath at a trial or at a House impeachment hearing, she dare not say anything different than what is in the deposition because she can be impeached with the deposition and because the conflict, by itself, proves perjury. “Were you lying under oath at your deposition or are you lying under oath now?”

It’s at the impeachment hearing where Trump can confront and cross-examine the witnesses against him. If a witness is deposed but then not called at the hearing, Trump can either call it “no harm-no foul” or he can call the witness himself and use the record of the deposition the same way the government could have used it.

When a party invokes The Rule, the judge calls all potential witnesses in front of the Bench and swears them in. Then, he or she says:

The Rule has been invoked. That means you will all have to wait outside the courtroom while other witnesses are giving testimony. While you are out there, I instruct you not to discuss the case with each other or with anybody at all except the lawyers for either side.

Mr. Trump has been involved as a party with enough litigation to know this. He is not tweeting from ignorance, as he does so often. He’s trolling.

Don’t take the bait.

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

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