I am a lawyer and a trained litigator. I have presented cases before Immigration Courts and the Virginia Circuit Courts. And although I have watched congressional hearings numerous times before, they still annoy me. The main reason is that these hearings are not designed so much to try to get to the truth, so much as to put on a dog and pony show in order to get as many sound bites as possible to make it to the news. These impeachment inquiries are no exception.
Let's start with who presides over the hearings. The Committee Chair is a member of the majority party in the House. In this case, the Chair of the House Intelligence Committee is Adam Schiff. But Schiff plays two roles. Not only does he preside over the hearings, but he has a political agenda. In this case, I personally happen to agree with that agenda,which is the impeachment and eventual removal of Donald Trump as President of the United States for his abuse of power. Nonetheless, I do think it is very important that the person conducting the hearings present an image of disinterested fairness. I cringe when Schiff opens up the hearings with his recitation of what he thinks the testimony will show. I wish somehow that the hearings would be presided over by some kind of neutral parliamentarian, who enforces the rules, but does not express an opinion. That would take away much of the argument that the Republicans are making, that Schiff is being unfair to them, when all he is doing is enforcing the rules. It would also free Schiff to pursue his political agenda, without making it appear like a one-sided affair.
Moving on the opening statements of the Ranking Member, Devin Nunes, I've been finding it really hard not to throw something at the TV when he speaks. Yes, I know that the Republicans' strategy is to distract everyone from the facts of the case. When you get down to it, the memorandum of the July 25th phone call is just plain damning. Right there, the President is asking for a favor right after the President of Ukraine refers to his country's desire for defensive assistance. But all of this stuff on how we aren't going to hear from the whistleblower, or the arguments over Joe Biden and his son Hunter, they are just irrelevant to the issue at hand. I keep thinking that if I ever tried to pull that kind of thing in a court of law, I'd have a really annoyed judge in front of me. "Counsel, stick to the facts of this case," I'd likely be lectured.
And if that weren't enough, in the first few hearings, we saw Republicans interrupt with their so-called "point of order." A point of order is supposed to be a complaint over a procedural issue. But the Republicans are trying to use them again to distract from the witnesses scheduled for that day, and raise their inane conspiracy theories. Point of order, we are not going to hear from the whistleblower and whether this personal may have a political agenda. Point of order, you won't let us call Hunter Biden as a witness. None of this has anything to do with the procedure, which was agreed to prior to the hearings. They are all about trying to put the irrelevant conspiracy theories before the public. And when Chairman Schiff recognizes this and cuts them off, they complain that he is not being fair. Dog and pony show.
Now, I know these hearings are not run according to the Federal Rules of Evidence. But for crying out loud, these questions are just the absolute worst. Most of the time, these are just leading questions. That is, the representative, or counsel, simply makes a statement and then asks the witness if he or she agrees with that statement. A times, when the witness tries to answer in his or her own words, the questioner tries to interrupt the answer, and emphasize the questioner's point. Not only that, there have been numerous times that the questioner has tried to characterize the witness' statement with hyperbole or exaggeration, using very loaded or judgmental words. I tell you, if I did that in court, I would get a very strong rebuke from the judge.
More annoying than that are the times that the representative doesn't even ask a question. Instead, he just takes his full time to make a political speech to please the President or his constituency. Jim Jordan, who needs to be wearing a suit jacket during these hearings for goodness sake, is the worst at this. I honestly don't understand why the Republicans put him in the Intelligence Committee specifically for these hearings, because his speeches are just not effective.
One tactic that came out more clearly during Lt. Colonel Vidman's testimony was this attempt by Republicans to unmask the whistleblower. We all know, or should know, that this is illegal. Like it or not, we need to protect the identity of a whistleblower for the very reasons that are unfolding here, before our eyes. We want people to be able to come forward with information of potential wrong-doing, without fear of reprisals. It's bad enough that the Army had announced its readiness to protect Lt. Colonel Vidman if necessary, because of all of the threats he has received. Imagine if the name of the whistleblower had gotten out. With all of those people who blindly support Trump, the whistleblower's life would most assuredly be in jeopardy. And yet, we saw Devin Nunes time and again ask Vindman to identify with whom he spoke, with whom he met, and then criticize Vindman when he refuses to name some people either based on counsel's advice or Chairman Schiff's instructions. Nunes even tried to argue that if Vindman was not asserting a Fifth Amendment right (which is the right against self-incrimination), he couldn't refuse to answer the question.
Look, while I want to be careful comparing this to a criminal action, many times criminal investigations or police action is spurred by unidentified informants. If the investigations or police action independently uncover criminal activity, the identity and motivations of the informant are irrelevant. What is relevant is the information that the investigation or police activity uncovered. The same concept applies here. Independent sources, such as the phone call memo and the witnesses who have testified so far, have corroborated what was reported in the whistleblower's complaint. The only reason to pursue the identity of the whistleblower any further, is to intimidate that person and others who may come forward to report official wrongdoing.
Let's now talk about this theme we are hearing from Republicans that the witnesses cannot identify a specific crime, or have not said words like bribery, extortion or quid pro quo. That is not the witnesses' role. The witnesses are supposed to be there to present factual testimony. Most of the witnesses are not lawyers. It is not their role to conclude that the behavior they witnessed or about which they testified amounts to any specific crime. That's a legal conclusion. It's the job of the House to determine if the facts amount to an impeachable event, regardless of how one may label it.
As I watch Devin Nunes deliver his afternoon opening statement, I have to agree with his statement that these hearings are "not serious" or "sober," but not for the reasons he has stated. Yes, it is a dog and pony show. But so far, the most egregious abuses have been from the Republicans, who are doing all they can to prevent the disclosure of facts, and hijack the hearings for their political agenda of pleasing the President and their constituents.
By: William J. Kovatch, Jr.
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