Openness is not just glancing through a keyhole – but entering the castle. In legal terms, a credible, legitimate impeachment inquiry must entertain material witnesses, just as a credible criminal proceeding or grand jury must do. To shutout key witnesses upends due process, makes a mockery of the Sixth Amendment, and disserves the American people. Yet that is what is happening.
To be specific, the impeachment process is now officially off the rails. The longer this charade continues, the bigger a debacle it becomes. No impeachment in US history ever started in the House Intelligence Committee, or under a cloak of secrecy. This one did. There remains no excuse for that deception. Impeachment is the exclusive province of the Judiciary Committee – an open committee.
Compelled to open impeachment, House leaders now selectively pick witnesses. This too is wrong. In the name of justice, material witness to a criminal inquiry – and impeachment is the constitutional surrogate for a criminal inquiry – must be entertained.
Put differently, you cannot put a thumb – let alone your whole bodyweight – on Lady Liberty’s scale, to tip a constitutional impeachment process toward guilt. If material witnesses exist who undermine that finding, they must be heard.
Specifically, in this impeachment, more than a dozen material witnesses exist – who may never be heard. Who are they? To summarize, they fall into four categories.
The first category is material witnesses who formally accused the president. That groups starts with two “whistleblowers,” one who proffered falsehoods and hearsay, the other his source.
Both must appear. Why? Five reasons. Testimony from these two represents the “best evidence” of what they allege – their testimony is better, as a matter of law, than their written complaint. Second, their testimony must be cross-examined, as a matter of truth finding.
Third, their credibility is in question. Are they part of a political gambit to unseat a president, or unbiased? Is the first whistleblower’s attorney, who reportedly advocated a “coup,” part of some larger plan? If so, does attorney-client privilege hold? Did the first whistleblower craft the complaint alone, or with help from the Intelligence Committee – a committee that now sits in judgment?
Fourth, the whistleblowers must testify to satisfy the Sixth Amendment, which permits the accused – here, a president – to confront his accusers. The whistleblowers are his accusers, and any impeachment requires the accusers to face the one they accuse.
Finally, these whistleblowers must testify because they may be in direct violation of federal law, revealing classified material. The president’s declassification of the call transcript is immaterial to their potential guilt.
All this leads to a second set of material witnesses, those who may have collaborated. The group includes Intelligence Committee Chairman Adam Schiff, as well as one or more Committee, Congressional, White House or State Department staff. Schiff’s testimony should be mandatory, others as implicated.
A third set of material witnesses are those who may vindicate the president’s request that Ukraine cooperate on a public corruption probe. That includes Hunter Biden, potentially his father and partner.
Why? In short, if Republicans establish probable cause to believe Hunter Biden committed a crime under US law, for example selling influence of his Vice President father or perceived influence, or that his father knew this was happening and it would benefit his son, then under the US-Ukrainian anti-public corruption treaty of 2000, seeking relevant information would be legal.
Put differently, if the son of any public figure, with or without that figure’s knowledge, commits US crimes in Ukraine – or in China – US authorities have the right to know that facts. That is what the US-Ukraine treaty is all about. Whether one is running for president should not be relevant. No one gets a “get out of jail free” card or immunity, for prior crimes.
Finally, a fourth category of material witnesses who must be heard. These are witnesses pointing to criminal origins of the Russia-collusion probe. If a leader at the FBI, CIA, DNI, National Security Council, or Obama White House abused the statutory FISA process, conducted illegal surveillance on the Trump campaign, released presidential call transcripts, or was involved in illegal leaks, this kicks the legs out from under an obstruction article of impeachment.
Put differently, these witnesses may vindicate the president. The object of an honest impeachment inquiry is truth, not an orchestrated or preordained guilty finding. Impeachment is a serious, bipartisan, constitutional process, not an adolescent “gotcha” game.
All this returns us to a basic problem. The impeachment investigation seems to be off the rails – in a phrase, illegitimate. The only way to restore legitimacy is open hearings with these four sets of material witnesses. There is no other way to finding the truth.
If House Democrats refuse to hear from them, we know all we need to know. In that case, the impeachment inquiry is pure politics. The castle is out of bounds, keyhole all we get. In that case, impeachment is just a fraud; it never was about the truth.