Republicans Suddenly Care about Hearsay and Procedural Justice

by Sarah Lustbader

Republicans seem to discover the urgent need for due process and procedural safeguards each time an ally of theirs becomes vulnerable. This time, it’s about hearsay.

I am confident that I am not the only attorney fielding questions about whether the whistleblower complaint—which began an impeachment inquiry into President Trump’s dealings with the Ukranian president—is hearsay. This is because after the complaint was released, Trump allies such as Senator Lindsey Graham began trying to dismiss it as hearsay. On Twitter he wrote:

Would the whistleblower complaint be hearsay if lawyers tried to enter it at trial? Yes. Does that matter for these purposes? Absolutely not.

Graham should know better. He was a trial lawyer, and is now a senator, so he should know that hearsay plays a significant role in plenty of investigations and nontrial legal proceedings. Among those proceedings is, yes, impeachment, where the rules of evidence are not binding. And regardless, the whistleblower report prompted officials to seek out and obtain plenty of non-hearsay material, including the rough transcript of the call. In this way, it’s akin to the beginning of a criminal investigation. No one expects police detectives to drop a lead simply because it would not be admissible in court. They are expected to follow up on that lead and seek out more direct evidence. That is what Democrats have done.

What is hearsay? It doesn’t mean “baseless rumor,” as Republicans might what us to believe. Defense attorney, former federal prosecutor, and writer Ken White wrote a Twitter thread to explain the concept to non-lawyers.

Basically, I can’t testify in court about what my friend told me, unless I am not trying to say that what my friend said was true. Maybe I am repeating it to show that my friend was angry at the time, or to explain why what he said made me angry. There are a ton of other exceptions. Some make more sense (an “excited utterance,” like a panicked 911 call, is usually admissible), some make less sense (“dying declarations,” things people say on their deathbed, are also admissible).

The newfound concern about due process echoed Supreme Court Justice Brett Kavanaugh’s confirmation hearings. When Kavanaugh was accused of sexual assault and his accuser was allowed to testify against him, Trump tweeted, “This is a very important time in our country. Due Process, Fairness and Common Sense are now on trial!”

And at the hearing, Kavanaugh said that when the allegation surfaced, he “demanded a hearing for the very next day. Unfortunately, it took the committee 10 days to get to this hearing. In those 10 long days, as was predictable, and as I predicted, my family and my name have been totally and permanently destroyed by vicious and false additional accusations.” As a former public defender, I could not help but think about the wait my clients had to endure before they were given the opportunity to tell their side of the story, confront their accusers, and try to clear their names. In that time, they were often unable to work, separated from their children, or held in jail. The wait could go on for years, and most of the time, my clients never got their day in court. In the future, when ruling on an appeal that has taken years to reach his desk—years during which a person waited in prison—perhaps Kavanaugh will remember what it felt like when he “demanded” a hearing for the next day and had to wait nine more days.

In the case of the whistleblower report, Trump and his defenders might be feeling frustrated at the power of a secondhand accusation. My indigent clients certainly were. If Republicans were truly concerned about the power of hearsay in nontrial contexts, they might do well to look to other examples of its use throughout the system. Every day, people are arrested, handcuffed, fingerprinted, interrogated and detained—all on the basis of hearsay. “This is utterly routine in the American criminal justice system,” I argue in the Washington Post today. “Judges in immigration court rely on hearsay regularly when denying people asylum or other forms of relief. … Prisoners who wait years for a parole date can be denied by parole boards if a guard reports hearing a secondhand account of a rule violation. Federal judges are free to consider hearsay evidence at sentencing, in deciding how much of the rest of their life someone spends in prison.”

The irony of all this is that political pressure has already promoted Democrats to find nonhearsay evidence to support the whistleblower’s complaint, and they are issuing subpoenas to find more. Unlike immigrants facing deportation, criminal defendants facing pretrial detention, and parole candidates facing prolonged sentences, the president is simply in no danger of suffering any consequences on the basis of hearsay alone.

Originally posted in The Appeal