Lindsey Graham: "We're not going to try the president of the United States based on hearsay"

A leftover from yesterday, the gaslighting quotient of which is high even by the usual Trump/Graham standards. I’ve listened to this chattering about hearsay and the whistleblower complaint for a week with increasing mystification about what it’s supposed to prove.

Hearsay isn’t taboo at the investigation stage of a crime (or political crime, in the case of impeachment), nor should it be. Imagine if someone walked into the local police precinct and reported that he’d overheard two co-workers plotting a murder. What should the cops do with that information? Ignore it on grounds that it’s hearsay or chat with the informant to see if he seems credible and, if he does, investigate further?

Imagine that the police are stumped in trying to solve a murder and decide to launch a tip hotline in hopes that a member of the public knows something. Most of the tips that come in will go nowhere either because they’re in earnest but based on mistaken information or because they’re fabricated out-and-out. Some will involve hearsay. Should the police follow up on those leads anyway?

What the whistleblower did in filing his complaint is nothing more or less than a tip. The “police” in this case are the inspector general (ICIG) who received the complaint and took a preliminary look to see if the tip seemed credible and House Democrats, who now have to try to flesh out the claims in the complaint with hard evidence and witness testimony. That’s why subpoenas are suddenly flying for the likes of Mike Pompeo and Rudy Giuliani. Of course Senate Republicans aren’t going to vote to remove Trump if all Democrats present to them is the bare allegations contained in the whistleblower complaint. That’d be like trying to convict someone at a criminal trial with stuff that came in on the tip line. That’s why we have a hearsay rule in the first place — because, at trial, when someone’s liberty (or office, in the impeachment context) is on the line, we want the jury to make its decision based on reliable information. It would be a political gift to Republicans if House Democrats impeached Trump based on nothing more than hearsay; then the Senate GOP could quickly vote to acquit the president, laughing the whole way at how shoddy the Democrats’ case is. Which would be appropriate, since the Senate is the “jury” in the impeachment process.

But before the jury phase? Let the cops run down every lead they have. Especially when a lead comes from someone whom they’ve deemed credible.

Relatedly, take a few minutes to read this statement issued by the ICIG tonight responding to a claim made by righties and echoed by Trump himself that the rules for whistleblowers were recently and suspiciously changed. Supposedly, until just last month, whistleblowers could only file a complaint based on firsthand information; the form for filing a complaint was allegedly changed in the nick of time to allow complaints based on secondhand information, a seemingly too-convenient switch that allowed the Ukraine whistleblower to get his claims about Trump sent up the chain of command.

But it’s not true, says the ICIG.

The key point has to do with the statute. The law itself has never required firsthand information to file a complaint and the law is the only thing that matters. Again, analogize to a tip line: Why would the police ever insist that a tip be based on firsthand rather than secondhand information instead of simply welcoming all tips from the public and weighing the credibility of each individually? That’s exactly what the ICIG did in conducting a preliminary investigation to see if the whistleblower/tipster seemed credible or not. Read his full statement and you’ll see, as Gabe Malor explains, that the firsthand/secondhand distinction only matters in forming that initial conclusion about credibility. Firsthand information will be deemed *more* credible than secondhand but there’s no legal requirement that the info in the complaint all be firsthand. (And some of it was firsthand, the ICIG notes.) The “cop” here looked at everything in assessing whether a tip deserved some follow-up. What else should he do?

On top of all that, there’s an actual quasi-transcript of Trump’s conversation with Zelensky that the president himself released. That’s the key piece of evidence in the case against him; some Democrats will tell you that he can and should be impeached based on what’s in that transcript even if there’s no further evidence found supporting a quid pro quo involving Ukraine’s military aid. The transcript also substantially corroborates some of the claims in the whistleblower complaint about what Trump allegedly said to Zelensky. In which case: What the hell is Graham doing prattling on about hearsay? He should worry less about that and more about his buddy’s own admission against interest in the form of that transcript.

One more point about hearsay. If you happen to know a lawyer, ask him or her whether there are any exceptions to the hearsay rule at trial. They’ll probably look at you funny and sigh wearily before launching into their explanation. That’s because there are lots of exceptions — lots-lots — and a good chunk of law-school classes on evidence is devoted to them. That is, even if some hearsay evidence is offered to the Senate, there’s a reasonably good chance that it’ll be admissible anyway. Graham is a well-trained lawyer and knows that, of course, but he’s also a BS artist spinning desperately for his friend here and hoping to confuse viewers. If he repeats “it’s hearsay!” often enough, maybe Republican viewers will start repeating it too and using it as an excuse not to pay attention to the Ukraine matter any further. It’s hearsay! Case closed!