Legally, Hearsay Can Support a Criminal Investgation

Ever since the jaw dropping details of the whistleblower complaint was released publicly, President Trump and his friends have been trying desperately to attack the whistleblower’s credibility. Through that complaint, the whistleblower detailed a shakedown perpetrated by Trump through his private lawyer, Rudolph Giuliani, of the Ukrainian Government, going back to a time before Volodymyr Zelensky was elected President of Ukraine.  Trump and Giuliani have been trying to get Ukraine to provide dirt to undermine the conclusion that Russia interfered in the 2016 election, as reached by the US intelligence community, the FBI and Robert Mueller’s investigation.  Trump and Giuliani also wanted Ukraine to provide information to damage the reputation of Trump’s political rival, Joe Biden. One argument Trump has used is that the whistleblower only had “second class” information.

Of course, Trump meant that the whistleblower had second-hand knowledge, meaning the whistleblower did not listen to the telephone call with Zelensky himself.  Rather, the whistleblower collected information concerning Giuliani’s pressure on Ukrainian officials from other people. Essentially, Trump’s friends, such as Republican Senator Lindsey Graham, claim that Trump cannot be impeached based on “hearsay.”  Hearsay, as every lawyer knows, is when a witness tries to testify regarding something the witness heard another person say. Although the law of hearsay is complex, with some exceptions hearsay is inadmissible in a trial and cannot support a criminal conviction.

Setting aside the fact that impeachment is a political process, and not a legal criminal proceeding, what Trump, and his friends such as Graham, forget is that Trump has not been impeached yet. Speaker of the House, Nancy Pelosi, has only announced that the House has opened an impeachment inquiry. This means that the House will formally begin acquiring evidence and holding hearings for the purpose of determining whether to impeach Trump.  That is, the House will commence an investigation into Trump’s actions.

This is where the hearsay defense falls apart. Even if impeachment were a true criminal proceeding, the use of hearsay would not invalidate the commencement of an investigation. For example, pursuant to US law, hearsay can be used to issue a search warrant.  A warrant can be issued upon a showing of probable cause.  Hearsay can establish probable cause if it has indicia of reliability. Indicia of reliability can include information about the person’s background, and details that can be corroborated. Here

Concerning the whistleblower's background, the New York Times claims that he is a CIA Analyst who was attached to the White House.  This would mean that the whistleblower was trained in collecting facts, and providing an analysis of what those facts mean.  He would have training in foreign affairs.  He would also have access to people who work with the President on a daily basis, who would have direct first-hand knowledge of the events and processes described,

Additionally, the details concerning the telephone call and the pressure placed on Ukraine have been, and are continuing to be, corroborated. First, Trump acknowledged that he placed pressure on Ukrainian President Volodymyr Zelensky concerning Biden.  Trump himself said to reporters, “Even the Ukrainian government put out a statement that that was a perfect call, there was no pressure put on them whatsoever. But there was pressure put on with respect to Joe Biden. What Joe Biden did for his son, that’s something they should be looking at.”  Thus, even before the White House released the memorandum of the telephone call, Trump admitted the substance of the call, and that his aim was to compel Zelensky to provide information on Biden.

Then, the release of the memorandum of the telephone conversation itself confirmed details the whistleblower disclosed in his complaint.  This included Trump referring to his view that while the United States has been good to Ukraine, the relationship has not always been reciprocal.  Indeed, as recorded in the memorandum, Trump specifically asked Zelensky for a favor, which appeared to be connected to Zelensky's expressed desire to buy more Javelin missiles.  This "favor" actually turned out to be two.  trump wanted Ukraine to investigate whether the server of the Democratic National Committe taht had been hacked was in Ukraine.  He also wanted information on Joe Biden and his son, Hunter.  The whistleblower mentioned both of these in his complaint.

Moreover, Giuliani himself has been corroborating the allegation that he has been acting as the go between for Trump to Ukrainian officials, and that this has been going on for some time.  Giuliani has been making appearances on television confirming that he traveled around the world to meet with Ukrainian officials and to talk about Joe Biden.

With this much corroboration, the whistleblower’s allegations would almost certainly be ruled to be supported by indicia of reliability and thus support a finding of probable cause.

Hearsay can be used to identify potential witnesses. In this instance, the House Judiciary Committee will hold hearings. It is perfectly acceptable to use the information provided by the whistleblower to identify people working in the White House from whom the Committee will want to hear. In fact, Judiciary Committee Chair Adam Schiff announced that the committee is working with the whistleblower's lawyers to have the whistleblower testify before the committee.  When testifying before the committee, the whistleblower can identify with whom he spoke concerning his allegations, and how he knows about the process the White House used to try to cover up the phone call.  This will help the committee identify witnesses with first-hand knowledge of the allegations, and what other evidence the committee will need to subpoena.  Over the next few months, we can expect there to be ongoing testimony by White House staff, Rudy Giuliani, and members of the intelligence community concerning the pressure Trump placed on Ukraine.

It is important to keep in mind that impeachment itself is not the end process. That is, a president is not removed from office simply because the House votes in favor of impeachment. If comparisons to criminal law are to be maintained, impeachment is more like an indictment. It represents the House concluding that there are reasons why a majority of House members believe the president has abused his office and deserves to be removed. Whether the president is actually removed is determined by the Senate, which holds a trial over which the Chief Justice of the Supreme Court presides. It will be up to the Senate to determine its own rules on how the trial proceeds, just as the House decides the rules concerning impeachment.

At this time, the United States is just at the beginning of an impeachment inquiry. To say that the whistleblower’s allegations, as outlined in his complaint, cannot support the opening of an investigation is just plain wrong. These allegations, which already have corroborating evidence, can and should serve the basis of identifying avenues the Judiciary Committee should pursue in collecting further evidence to permit the House to decide whether ultimately to impeach President Trump.

By: William J. Kovatch, Jr.