Balkinization: The Whistleblower in the Senate Impeachment Trial

Comments:

There are various steps here.

One is discussion of basic fairness. The House and Senate under current law have basically complete (scenarios of majority votes to convict aside) discretion to set rules. But, over the years, each body has set up procedures that factor in fairness concerns. So, working out the details there would be something that will raise "constitutional language" like due process even if the results are not something subject to judicial review.

Second, I don't know really the compelling need for the whistleblower to testify. In a criminal trial, a defendant might have the right to call the person. But, here, I'm unsure, balancing the equities, what the need is. So, I doubt the Senate "should" compel testimony against the wishes of the person. I think there is a reasonable chance that a few Republicans will agree with that. What does Romney et. al. have to lose to decide that the whistleblower law as well as the balance of things warrant not forcing testimony? It would be a small vote of independent principle on their part.

Third, what happens if pressed? I assume current impeachment trial rules factor in some sort of equity concerns such as the well being of a witness. Privileges in place outside an impeachment trial would not simply disappear within them. Let's say an impeached person wants to force a spouse to testify against their spouse or the like? I don't know the weeds here. But, there very well might be some discretion (especially since the House managers will make the case probably) for Roberts to rule from the bench, so to speak, to not require testimony.

Finally -- there is probably other stuff -- there is perhaps some chance Trump's lawyers will not force the issue in the end. The whistleblower at the end of the day really has little importance with all the other evidence to be presented. The dust thrown as well as any petty concerns behind the request is duly noted. Still, as a whole, it is a dubious move to press the issue all the way. Whose minds will it change? etc.

# posted by

Joe : 11:14 AM

The "right to confront the witnesses against him" would only be relevant if the whistleblower were to testify against Trump, and there is little chance of that. The information provided by the whistleblower is almost all hearsay.

However, the Sixth Amendment also says a defendant should, "have compulsory process for obtaining witnesses in his favor." There is some relevant case law here relating to situations in which the police rely on a tip or an informant. Someone would have to review the case law to be sure, but my recollection is that in general the prosecution is not required to provide defendants with the name of the tipster or informant.

# posted by

Kenneth Almquist : 12:11 PM

There's basically no evidentiary value to the whistleblower's testimony, since it is, by the accounts I've heard, entirely hearsay. So I can't see why the House managers would want to call him as a witness, or why the Chief Justice would permit it. The President's defense certainly has no motive to call him, hearsay or not he's a hostile witness.

There's not even any point in impugning his testimony, since the actual facts he can testify to are not particularly damning, the "crime" is all in the conclusions you draw from them, and you can draw those conclusions, or reject them, without hearing from him.

So I don't expect him to testify, even assuming it gets as far as a Senate trial, which doesn't strike me as likely at this point.

On a side note, since no comments have been enabled: I see from "The Cult of The Constitution" discussion that the push to de-legitimize the Constitution continues unabated.

# posted by

Brett : 12:17 PM

If the whistleblower were a confidential informant whose tip sparked a law enforcement investigation that uncovered probable cause to arrest and prosecute, would there be any reason to compel the CI to testify at trial if the evidence obtained through lawful means establishes probable cause? Given the release of the transcript the testimony of witnesses before various House committees, and the innumerable statements of the president, it's hard to see why the testimony of the CI would be relevant to proof of whatever it is for which the president hypothetically is impeached.

# posted by

Unknown : 12:19 PM

One comment on this.

On a side note, since no comments have been enabled: I see from "The Cult of The Constitution" discussion that the push to de-legitimize the Constitution continues unabated.

I read the book. First, part of the issue is to determine what the two amendments in question actually require, including how the reach changed in recent years. This includes taking into consideration how later amendments changed things. The book also discusses the mindset and so forth of those who wrote the original constitution. There is a sense of reality there.

How much this all tries to "delegitimize" the Constitution is unclear though it is perfectly fine really to critique a document that has been amended multiple times. Sandy Levinson has flagged this some but so has the person I quoted. The person also argued that the very means multiple amendments were ratified was dubious.

# posted by

Joe : 12:38 PM

"The person also argued that the very means multiple amendments were ratified was dubious."

I can't actually argue with that; The Reconstruction amendments were ratified, in the South at least, at gun point. Literally so, there were soldiers in the legislative chambers when the 13th amendment was up for a vote in the South.

# posted by

Brett : 12:49 PM

I haven't read the book yet, (Not likely to, unless it's available through my local library.) just the discussion of it. But this quote by Jack Balkin seems illustrative:

"[w]hile some of the beneficiaries of this constitutional cartel have, at momentous points in history, used their power to confer constitutional recognition on women and minorities, the creation, interpretation, and application of constitutional rights have all primarily served the interests of the Americans who most closely resemble the original founding fathers. The core of constitutional power and privilege in this country has never shifted dramatically—that is to say, democratically—away from white men"

It is perfectly fine to critique the Constitution, but I'd like to see a more sympathetic critique, or response to her critique; Both her side AND most of the commentary on her writing seems to be coming from a position sufficiently hostile to the document and the rights being criticized, that they can't actually construct the obvious counter-arguments.

Such as that the only equality the Constitution contemplates is equality of rights, and disparate outcomes of those rights can have no constitutional significance.

# posted by

Brett : 3:01 PM

Brett is an uber-Bircher, willing to spin complex conspiracies on the flimsiest of premises when it suits him, but in the present case he says 'oh, it's totally plausible that Trump has decided to personally, and via his personal lawyer, combat corruption in Ukraine, and he just happens to have focused on a case involving the front runner against him domestically. Totally plausible!'

Bircherism works both ways, seeing gold when there's only straw and straw when there's only gold.

# posted by

Mista Whiskas : 3:35 PM

Trump ran in part on going after criminality on the part of the preceding administration, of which this is part. Corruption in Ukraine is no real business of our's, unless it takes the form of bribing American office holders by giving their children remunerative, no-work jobs.

In THAT case, it is very much something our government should combat, and the fact that the corrupt former office holder might (or might not) end up being Trump's opponent is just gravy.

Or maybe you've come around to objecting to all the investigations of Trump the Obama administration launched after he found himself in the same position Biden is now?

# posted by

Brett : 4:01 PM

We've been over this. The investigations of Trump campaign members preceded Trump's campaign and were initiated via the normal, professional law enforcement apparatus. Obama was informed about them, and to his credit obviously didn't inveigh them in any way politically (ironically the FBI was breaking protocol to leak things about the investigation of Hillary's nothingburger emails while keeping silent on an investigation of the many literal foriegn agents and Kremlin stooges of the Trump campaign).

That's miles away from Trump personally, and using his personal lawyer, to target singularly his chief domestic political opponent. The credulity Brett shows in this instance -he's just draining the swamp, it just so happens it's only his chief domestic political rival he's using his authority to go after!- is Bircherism in reverse.

# posted by

Mista Whiskas : 4:10 PM

Trump actually foresaw this rube-ism when he said he could literally shoot someone in Manhattan and not lose his support. Brett's true to form.

# posted by

Mista Whiskas : 4:12 PM

I think the previous comments have made it clear that the Confrontation Clause wouldn't apply here. The whistleblower doesn't appear to be a percipient witness and therefore presumably wouldn't supply evidence.

If we're exploring hypotheticals, then I suppose that the Senate could admit testimony from the whistleblower under some exception to the hearsay rules. In that case, I predict Justice Roberts would invoke the Confrontation Clause or due process generally and allow cross examination. But predictions are hard, especially about the future.

"Trump ran in part on going after criminality on the part of the preceding administration, of which this is part."

The Republicans certainly have mastered the art of accusations in a mirror.

# posted by

Mark Field : 4:45 PM

Interesting post. Thanks. Your write: "One thought is that the Sixth Amendment does NOT apply to impeachment trials. It applies only to criminal trials." And while I believe "high crimes & misdemeanors" essentially refers to things that constitute injury to the state, whether or not formally a "crime," of what relevance do you think Article III, Section 2, paragraph 3 ("The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ...") is? Does it suggest that the drafters thought that other "rights" of criminal defendant--such as you are discussing in your post--apply in cases of impeachment, particularly given that the Constitution was written at a time when "common law" crimes were relatively common?

# posted by

Tom Jackson : 4:52 PM

I think part of the issue here is that we simply don't know all the details, including why in particular Trump's people will argue the person should testify. It is also a sort of hypothetical thing and we can imagine ala Mark Field some scenario where the person's testimony could be deemed relevant. I think it wrong to assume too much here.

An earlier comment about informants. Here's a summary that might be useful:

https://www.nolo.com/legal-encyclopedia/learning-the-identity-confidential-informant.html

As to Tom Jackson's comment, the idea that the rights of defendants apply was an issue in the first impeachment process involving William Blount. It was determined that the constitutional rules of a criminal trial did not apply & in a letter to Thomas Jefferson, James Madison said he assumed that was true too. There was a minority that thought the usage of "crime" did suggest the Bill of Rights applied.

(I referenced this is a previous thread.)

It seemed generally understood that the power of the Senate to "try" impeachments suggested a looser set of rules. As noted by Joseph Story, to cite an early commentator with some cachet: "In the next place, it is obvious, that the strictness of the forms of proceeding in cases of offences at common law are ill adapted to impeachments."

See also, Walter Nixon v. U.S.

# posted by

Joe : 8:41 PM

Comrade Brett could create his own blog in which he could raise his concerns about book symposiums that do not permit comments. And such a blog by Comrade Brett would provide for comments. Comrade Brett may have the skills to create his own blog, but how much traffic would Comrade Brett's blog generate? Maybe Comrade Brett might consult with Spam on this. But I don't think Comrade Brett will create such a blog. It may be easier, incise own mind, to challenge the policies of this Blog, rather than sticking with the post by Gerard that permits comments Comrade Brett should keep in mind that many legal blogs do not permit comments, such as the Originalism Blog and the Legal Theory Blog. Balkinization's policy on comments is broader than many legal blogs.

# posted by

Shag from Brookline : 10:07 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 11:18 AM

Presuming the POTUS is permitted counsel and the ability to call witnesses at a Senate trial, why would Trump's attorney want to call the Democrat bureaucrats masquerading as "whistleblowers" in order to make anonymous attacks on Trump through the Democrat media?

Under the rules of evidence, any "whistleblower" testimony concerning the impeachment allegations would be inadmissible as hearsay, speculation and opinion. Even if the Senate permitted such testimony, why would the defense want to allow the Democrat bureaucrat to regurgitate his speculation and opinions on national television?

If the goal is to demonstrate the House impeachment effort is a partisan conspiracy, then go after the co-conspirators. Call Adam Schiff and his staff to the stand to discuss under oath their coordination with the Democrat bureaucrats which they offer as "whistleblowers." I would pay good money to see Giuliani cross examine the execrable weasel Schiff.

Of course, once again, Gerard is getting ahead of himself by assuming the Democrat House will actually vote to impeach Trump. If you believe the breathless Democrat media and their polling of census-weighted adults (which Gerard apparently does), a majority of America wants to run Trump out of town and such a vote is a foregone conclusion. However, in the real world, the Donald is holding mass rallies using impeachment as a punch line to the delight of his voters and Madam Speaker is yet again refusing to hold a House floor vote placing her narrow Dem majority on the record to start official impeachment proceedings.

Have you ever asked yourself what then principles know that the Democrat media is not telling you?

# posted by

Bart DePalma : 11:53 AM

Of course the whistleblower's evidence has largely been corroborated, and worse, by evidence from Trump and many of his officials themselves. And also of course, there is no "Democrat media," not in the sense our resident Bircher means. Any media that doesn't buy into the kinds of cockamamie conspiracy nonsense these Bircher's peddle and fall for regularly is what they call the 'Democrat media.' In fact it's conservatives who run the most blatantly biased media outlets.

# posted by

Mista Whiskas : 12:56 PM

Our REPUBE resident Spam shows his bias in his very first paragraph with this reference: " the Democrat bureaucrats masquerading as "whistleblowers." Then Spam continues in his usual cockamamie manner I wonder how traffic is on Spam's blog, assuming it still exists. It must be lonely in Span's rural mountaintop community for one with his legal talents.

# posted by

Shag from Brookline : 1:19 PM

Mr. W reminds me of Miracle Max in Princess Bride: "I'm not listening!"

# posted by

Bart DePalma : 1:21 PM

No one should waste much time listening to Birchers. They're full of nonsense, paranoid conspiracy thinking. It's like that line from Annie Hall about the kind of person who "wanders into a cafeteria with a shopping bag screaming about socialism".

# posted by

Mista Whiskas : 1:27 PM

All this pettifogging about whether certain conduct is “impeachable” or what types of “due process” (TM) are due the impeachee, are a nice way of passing the time before the real drama starts. As Barbara Jordan bracingly clarified in 1974, impeachment is “a political act.” The decision to vote to impeach, or (for a Senator) to convict, will be driven heavily by considerations of the political fallout from the choice. Once a rep/senator has made the political calculation to vote against impeachment/conviction, a host of rationales are available to support it, including those being discussed ad nauseam, here and all around us.

# posted by

Joeff : 1:44 PM

Politics is done by politicians that are a product of the Constitution.

The "political calculation" works within to some degree constitutional values.

Prosecutors also have broad discretion whether to prosecute etc.

# posted by

Joe : 2:17 PM

"If the goal is to demonstrate the House impeachment effort is a partisan conspiracy, then go after the co-conspirators. Call Adam Schiff and his staff to the stand to discuss under oath their coordination with the Democrat bureaucrats which they offer as "whistleblowers." I would pay good money to see Giuliani cross examine the execrable weasel Schiff."

It's quite possible Roberts wouldn't permit that. "and for any speech or debate in either House, they shall not be questioned in any other place."

It would at least be argued as preventing questioning them in that manner.

# posted by

Brett : 7:26 PM

HD: "If the goal is to demonstrate the House impeachment effort is a partisan conspiracy, then go after the co-conspirators. Call Adam Schiff and his staff to the stand to discuss under oath their coordination with the Democrat bureaucrats which they offer as "whistleblowers." I would pay good money to see Giuliani cross examine the execrable weasel Schiff."

Brett: It's quite possible Roberts wouldn't permit that. "and for any speech or debate in either House, they shall not be questioned in any other place. It would at least be argued as preventing questioning them in that manner.

Very likely the Senate will not allow questioning of House members to avoid a precedent for the House to use against senators.

However, Trumps point will be made in televised arguments.

# posted by

Bart DePalma : 9:14 PM

I endorse this recent post at this Blog:

****

Friday, October 18, 2019
Cicero on Trump

Guest Blogger

Charles Fried

Quo usque tandem abutere, Catilina, patientia nostra? Quam diu etiam furor iste tuus nos eludet?Quem ad finem sese effrenata iactabit audacia?

When, O Catiline, do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now?

--Cicero, First Cataline Oration

Charles Fried is Beneficial Professor of Law at Harvard Law School. You can reach him by e-mail at fried at law.harvard.edu

Posted 4:50 PM by Guest Blogger [link]

***

Add to the developing picture, the selection for the G-7 meeting site in 2020. How long can Spam and Comrade Brett continue their charade defenses of their leader Trump? Recall how Spam in 2007 abandoned the Bush/Cheney SHIP OF STATE in the manner of rats. Check out the Archives of this Blog to confirm.

# posted by

Shag from Brookline : 7:59 AM