These are disorienting days for everyone, but the past week has been particularly odd for those of us who teach and write about evidence law. We’re not used to seeing rules of evidence take center stage in national political discussions. But over the last week President Trump and two his allies have invoked evidence law in three different ways to attack the impeachment inquiry now underway in the House of Representatives. All three arguments were made on Twitter, where so much political discourse tends to take place these days. In each case, evidence law got mangled, and not in small ways.
The three rules of evidence at issue are the hearsay rule, the right to confrontation, and the attorney-client privilege.
Hearsay. Senator Lindsey Graham objected on Twitter to opening an impeachment inquiry based on “hearsay accusations.” “In America,” Graham claimed, “you can’t even get a parking ticket based on hearsay testimony.”
Graham graduated law school, so I suspect he knows better. Yes, the hearsay rule excludes much secondhand testimony from trials in the United States, but it is riddled with exceptions, and it does not apply at all outside of the courtroom. Not only can you get a parking ticket based on hearsay testimony, you can get charged with a felony based on hearsay testimony—and many defendants are. The hearsay rule doesn’t apply to police investigations or grand jury proceedings, and it most definitely does not apply to whistleblower complaints.
The whistleblower complaint regarding Trump’s pressure on Ukraine to investigate former Vice President Biden and his son relied in part on matters the whistleblower reported observing directly, and in part on matters he or she had heard from others. So it’s misleading to describe it as consisting entirely of “hearsay accusations.” But it is even more misleading to suggest that there is something wrong or even unusual about relying on secondhand information in the early stages of any kind of investigation. That happens all the time, including in the most serious of cases.
Confrontation. “Like every American,” President Trump tweeted last weekend, “I deserve to meet my accuser.” It’s nice to see the president underscoring the importance of procedural protections; he is right that the Constitution guarantees a right to confront adverse witnesses. But only in a criminal trial. There is no right to confrontation in a civil case, no matter how high the stakes. There is no right to confrontation in a criminal investigation, no matter how serious the charges. And there definitely, and by design, is no right to confrontation during the investigation of a whistleblower complaint. The whole point of whistleblower procedures is to allow individuals to report misconduct without fear of reprisal. The point is precisely to protect whistleblowers from the kind of threats and intimidation that have been filling the president’s Twitter stream over the last week.
Attorney-Client Privilege. Former New York mayor Rudy Giuliani, who appears to have been President Trump’s point man in pressuring the Ukraine government to investigate the Bidens, signaled over the weekend that he may not comply with congressional subpoenas regarding his role, because of “significant issues concerning legitimacy and constitutional and legal issues including, inter alia, attorney client and other privileges.” I have no idea what other “constitutional legal and issues” or other “privileges” he is talking about, and it’s not clear that Giuliani does, either. But the claim of attorney-client privilege is probably baseless.
The attorney-client privilege attaches to confidential communications between an attorney and a client in the course of legal representation. So it wouldn’t apply at all unless Giuliani was acting as a lawyer, and not as a freelance lobbyist of a foreign government on Trump’s behalf, which is what he appears to have been doing, judging by his own descriptions. (“I’m not acting as a lawyer,” Giuliani told a reporter from the Atlantic. “I’m acting as someone who has devoted most of his life to straightening out government.) And even if Giuliani was acting as a lawyer, the privilege would only cover his confidential conversations with his client—Donald Trump. It wouldn’t reach, for example, anything he said to the Ukrainians.
Finally, even communications between a lawyer and a client lose their privilege when they are made in an effort to carry out a crime or fraud. (Like Senator Graham, Giuliani went to law school, so he probably knows how the attorney-client privilege actually works. And as U.S. Attorney, Giuliani oversaw the prosecution of mob bosses, so he likely remembers the crime-fraud exception.) It’s not clear that the scheme to get the Ukrainians to investigate the Bidens would count as a crime or a fraud, but it might. And even if it doesn’t, the attorney-client privilege applies only to confidential communications between Giuliani and his client, and it doesn’t apply at all if—as appears to have been the case—Giuliani wasn’t acting as a lawyer in the first place.
Few people’s views about the impeachment inquiry are likely to depend on the niceties of evidence law. They don’t govern the initial stages of an impeachment inquiry, or of any other investigation. But if they are going to be invoked, it is important to get them right.
David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Directory of the Stanford Criminal Justice Center. He is the author of Democracy and the Police (Stanford University Press 2008), and he writes regularly about criminal procedure and law enforcement.