In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
On Wednesday, during his testimony in an impeachment hearing, acting U.S. ambassador to Ukraine William Taylor dropped a stunning and previously-unreported detail: One of his staffers, he said, was with U.S. diplomat Gordon Sondland the day after Trump's infamous "do us a favor" phone call in July. Sondland, the staffer recounted to Taylor, took a call from Trump, who asked about the "investigations," and Sondland replied that Ukraine was "ready to move forward." Sondland then told the staffer, whom the AP has identified as Daniel Holmes, that Trump "cares more about the investigations of Biden" than about Ukraine. This sworn testimony from a nonpartisan career diplomat directly implicates the president in the extortion plot that launched the impeachment inquiry in the first place.
The president's defenders, however, had their talking points prepared: This is all "hearsay," because Taylor wasn't at the restaurant, or in meetings with Trump, or on the Ukraine call himself.
"Ambassador Taylor says that he told Mr. Morrison that I conveyed the message to Mr. Yermak in connection with Vice President Pence's meeting in Warsaw," thundered Ohio congressman Jim Jordan, paraphrasing Sondland's revised testimony. "We have six people having four conversations in one sentence, and you are telling me this is where you got the clear understanding?" He glared at Taylor before delivering the punchline. "I've seen church prayer chains that are easier to understand than this."
Other Republicans were more reserved but no less critical. "Ambassador Taylor, the reason the Sixth Amendment doesn't allow hearsay is because it is unreliable. It is unreliable because frequently it is untruthful—it is not factual," Ohio congressman Mike Turner told Taylor and another witness, State Department official George Kent. "We're not in a court, but if we were, the Sixth Amendment would apply, and so would rules on hearsay and opinion, and most of your two testimonies would not be admissible whatsoever."
Presidential son Donald Trump Jr. weighed in on the subject on Twitter, too, although he referred to it as "heresay." Fox News personality Jesse Watters dismissed the entirety of the proceedings as a "hearsay hearing," which earned a retweet from the elder Trump.
The White House, speaking in its own defense, had previously labeled Taylor's testimony as "triple hearsay." But application of this emerging line of argument is not limited to Taylor. Already, the administration is pushing the narrative that the accounts of several witnesses who haven't even testified publicly yet are hopelessly "filled with hearsay" and therefore irrelevant. Here's what the term actually means.
What is hearsay?
An out-of-court statement that is offered to prove the truth of the matter described. The "hearsay rule," a centuries-old principle borrowed from English common law and now part of the Federal Rules of Evidence, generally prohibits the admission of hearsay as evidence in court.
Is hearsay a synonym for rumor, gossip, and/or innuendo?
Colloquially speaking, sure, sometimes. But in the context of a presidential impeachment hearing, when Republicans are talking about hearsay in order to discredit witness testimony, the legal definition is what we're talking about here.
What's the point of the hearsay rule?
Again, in this context, it is designed to avoid criminal convictions based on secondhand evidence. Although the hearsay rule is not expressly enshrined in the U.S. Constitution, the Sixth Amendment protects the right of someone charged with a crime to be "confronted with the witnesses against him" in court. Allowing the prosecution to present as evidence a statement made outside the courtroom—when the person making the statement is not under oath—runs afoul of this principle, since the accused person can't cross-examine the person who made the statement. (Cross-examining an in-court witness who merely heard someone else say something, of course, doesn't do the defendant much good.)
It is important to understand that this rule does not exist because hearsay is inherently inaccurate or untrustworthy; it exists to give people a fair shot in court. To earn a conviction, prosecutors need to go out find the witnesses who heard or saw what happened themselves.
Give me an example.
Tom, a sworn witness in an attempted murder trial, testifies that he heard Andy say that Ken went out and bought a gun the night before the crime. Tom's recollection of his conversation with Andy might be perfectly accurate. And Ken may have in fact bought a gun the night before the attempted murder took place. But Andy, unlike Tom, isn't in the courtroom, and isn't under oath, and can't be cross-examined by Ken's lawyer. This isn't fair to Ken. If the prosecutor is relying on Tom's testimony to prove that Ken bought a gun, this is hearsay; the jury needs to hear from Andy himself.
Are there exceptions to the hearsay rule?
There are a ton of them. An easy one to understand is that many business and public records are not hearsay, because even though they are created outside the courtroom, they're pretty reliable as far as evidence goes. A witness's "recorded recollections" of events—contemporaneously-written notes, basically—can be used to help refresh their memory in court. There's also a catch-all gives judges discretion judge to admit hearsay if they decide it's sufficiently trustworthy, and that "admitting it will best serve the purposes of [the Federal Rules of Evidence] and the interests of justice."
Confusingly, there are also a handful of important hearsay exemptions—statements that are not "exceptions" to the rule, but that are instead not hearsay at all. If a witness said one thing in one trial, for example, and then their story changes in another trial, that's not hearsay, since the witness was under oath and was subject to cross-examination the first time around.
Either way, the effect is the same: There are plenty of out-of-court statements that are nonetheless admissible as evidence in trials, and the rule against hearsay is not absolute. Congressman Turner's assertion that the "Sixth Amendment doesn't allow hearsay" is a gross overstatement.
Which exceptions and/or exemptions might be relevant to the Ukraine scandal?
Statements “made by the party’s co-conspirator during and in furtherance of the conspiracy” are not hearsay. A person's own previous incriminating statements are not hearsay, either, as conservative attorney and frequent Trump critic George Conway noted after South Carolina senator Lindsey Graham began griping about hearsay a few months ago. Any impeachable offenses to which Trump admits on the White House lawn, then, would be fair game.
How does hearsay apply to impeachment?
A great question. We've been talking about hearsay as it relates to criminal trials. And the president, despite the White House's assertions to the contrary, is not on trial. As George Washington University School of Law professor Randall D. Eliason explains in the Washington Post, law enforcement investigations frequently begin based on hearsay, tips from informants, or other information that wouldn't be admissible at trial. In fact, the Supreme Court has held that grand juries may indict based solely on hearsay evidence, if they find the evidence compelling enough.
Right now, Trump is the subject of an investigation that might lead to his impeachment, which, if it were to occur, is roughly the equivalent of being charged with a crime—not being convicted of one. Here, by lifting the rule against hearsay from the criminal law context and applying it to impeachment proceedings, Republicans are insisting on a standard that is simply not relevant.
If Trump gets impeached, would the hearsay rule apply in a Senate trial?
Not necessarily, but in practice, maybe. Impeachment trials are not the same as criminal trials, and a special set of rules exists for removal proceedings in the Senate. These rules give senators wide latitude to determine what evidence they do and don't want to hear, literally by voting on it. If the Senate's 53-member Republican majority decides it doesn't want to consider hearsay evidence—even if an exception or exemption would otherwise apply in a non-impeachment proceeding—they'll be able to use the process to exclude it.
How do you solve the hearsay problem?
By getting the witnesses with personal knowledge of the president's acts and statements in the courtroom—or, in this case, the hearing room. In the context of the existence of the Trump-Sondland conversation, that could mean Holmes and another staffer, Suriya Jayanti, whom the AP reported on Thursday also overheard the call. Otherwise, that would mean Sondland himself, along with other current and former Trump administration officials who were directly involved in the Ukraine scandal, with no degrees of separation between them and the president.
Why isn't that happening?
Because the White House has told current and former administration officials not to participate. So far, it has barred acting chief of staff Mick Mulvaney from appearing before lawmakers, and Mulvaney is even going to court to try and get out of testifying altogether. Former national security advisor John Bolton and his former deputy Charles Kupperman are awaiting the outcome of a separate lawsuit, although the Washington Post says they're both willing to testify if the court orders it. Sondland, who is scheduled to testify publicly next week, provided his closed-door testimony last month despite instructions from the State Department not to comply with the congressional subpoena he received.
In other words, yes, it would be great to hear from firsthand witnesses and avoid tricky hearsay questions altogether. But House Democrats aren't going to shut down the impeachment inquiry just because hearsay, thanks to the White House's maneuverings, is about all that's available to them right now. "Shut up about the hearsay if you're blocking all the witnesses," said former Democratic senator Claire McCaskill after the hearing concluded yesterday. And as Vermont Democratic congressman Peter Welch put it, if Republicans are really this upset about the integrity of the evidence, President Trump—the "person who started it all"—is welcome to sit down and testify under oath whenever he wants.
Whether it’s Paul Manafort or Hunter Biden and Donald Trump, Ukraine seems to play a disproportionately popular role in our nation’s recent controversies. Julia Ioffe explains why the same small country is increasingly involved in America’s political chaos.
Originally Appeared on GQ